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Badri Narain Singh And Ors v. Kamdeo Prasad Singh And Anr

Badri Narain Singh And Ors
v.
Kamdeo Prasad Singh And Anr

(High Court Of Judicature At Patna)

Election Appeal No. 7 and 8 of 1958 | 20-03-1959


Kanhaiya Singh, J.

1. These two appeals arise out of an election petition under Section 80 of the Representation of the People Act. In Election Appeal 8 of 1958 Kamdeo prasad Singh, the petitioner in the Court below, is the appellant (hereinafter referred to as the petitioner). In Election Appeal 7 of 1958 Bari Narain Singh, the returned candidate, who was respondent No. 1 in the petition, is the appellant (hereinafter referred to as the respondent). Five persons in all filed their nomination papers with regard to election to the Bihar Legislative assembly from the Sarath State Assembly constituency in the last general elections, namely, Badri Narain Singh, Kamdeo Prasad Singh, Hargouri Prasad Singh, Dwarka Prasad Singh and Nunka Saran. The last two candidates withdrew from contest before the last date fixed for withdrawal, that is 4-2-1957.

The first three candidates alone contested the election. The respondent is a Congress candidate and the petitioner is a candidate of the Praja Socialist Party. The other candidate, Hargouri Prasad Singh, was set up by the Jharkhand Party. The result of the election was declared on 14-3-1957, and the respondent was declared elected, as he had received the largest number of votes. The votes received by the different contesting candidates were as follows:

Badri Narain Singh. 11328

Hargouri Prasad Singh. 10909

Kamdeo Prasad Singh, 9373

On 25-4-1957, the petitioner presented to the Election Commission a petition, being Election petition No. 279 of 1957, impleading only the respondent and Hargouri Prasad Singh as respondents Nos. 1 and 2. He challenged the election of the respondent on two grounds, first, that both the respondent and Hargouri Prasad Singh were disqualified for being chosen as, and for being, a Member of the Legislative Assembly of the State because they were Ghatwals owning and occupying Ghatwali tenures of Babhan-gawan and Talukdeoli, respectively, and as such they held office of profit under the State Government, and, second, that the respondent and his agents committed corrupt practices.

The corrupt practices given by the petitioner comprised corrupt practices of using motor vehicles for the conveyance of voters to the poll and publication of pamphlets entitled "Sarath Nirwachan Chhetra Ke Matdataon Se Appeal" and "Ausarba-dion Se Sawdhan", as detailed in Annexure A to the petition, of newspaper "Jhankar", as detailed in Annexure B to the petition and of a notice, as described in Annexure C to the petition, making deliberately false aspersions on the personal character of the petitioner. On these allegations he claimed a declaration that the election of the respondent was void. In addition to this declaration he claimed a further declaration that he himself has been duly elected.

2. Both the respondents in the Court below, Badri Narain Singh and Hargouri Prasad Singh, filed written statements. Both of them denied that they were Ghatwals and held office of profit under the State Government, They alleged that their Ghatwali estates had been taken over by the State Government under the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), and, therefore, their nomi nation papers were not improperly accepted. Har-gouri Prasad Singh denied knowledge of commission of corrupt practices by the respondent or his agents.

By his written statement the respondent controverted all the allegations of corrupt practices made by the petitioner. He denied that he or his agents or any person on his behalf distributed any pamphlet, newspaper "Jhankar" or notice containing false allegations against the personal character of the petitioner. He also denied that voters were brought on trucks by him or his agents to the election booths. He alleged that on the contrary the petitioner himself was guilty of corrupt practices.

3. At the trial Hargouri Prasad Singh did not contest the election petition. The respondent alone resisted it. The following issues were framed by the Member, Election Tribunal, Santal Paraganas, Dumka, who happened to be also the District Judge of that place:

"1. Is the election petition not maintainable for the non-joinder of two candidates who withdrew

2. Did the respondents as Ghatwals hold office of profit within the meaning of Section 7 (d) and (e) of the Representation of the People Act, 1951, and were they disqualified to be nominated and elected under the said Act.

3. Did respondent No. 1 take recourse to corrupt practices, as alleged by the petitioner

4. To what relief or reliefs, if any, is the petitioner entitled".

The learned Member of the Election Tribunal held, on interpretation of Section 82 of the Representation of the People Act that the two candidates who withdrew were not necessary parties and that all the contesting candidates were impleaded as parties to the election petition, and, therefore, the election petition was not incompetent. He further held that the respondent and Hargouri Prasad Singh were Ghatwals and, as such, held office of profit under the Government

Since, however, by operation of the Bihar Land Reforms Act, the Ghatwali tenures passed to and vested in the State Government long before they filed the nomination papers, he held that they were not Ghatwals and held no office of profits on the date of the election, and, therefore, they were not disqualified to be chosen to fill the seats in the Legislative Assembly.

4. On the question of commission of corrupt practices the learned Member held that some voters were in fact carried on trucks to the Sagrajore and Sonatar booths by some workers of the respondent. He was, however, of the opinion that this circumstance did not materially affect the result of the election in so far as it concerned the returned candidate, because the number of voters carried by trucks was small and there was nothing on the record to show as to what would have been the result if these voters had not been brought on trucks.

The other corrupt practice, namely, publication of scurrilous pamphlets and newspapers was, in the opinion of the learned Member, established, and it was on this finding that the election of the respondent was set aside. The learned Member, however, refused to make a declaration that the petitioner was duly elected. Against this order both the petitioner and the respondent have preferred appeals, the for mer seeking a declaration that he himself was duly elected and the latter challenging the correctness of the finding that voters were carried on motor trucks and the alleged pamphlets and newspapers were published and distributed by him or through his agents.

5-6. I shall first consider the ground on which the election of the respondent has been set aside, namely, publication and distribution of oil ending pamphlets and newspapers. Two pamphlets are alleged to have been published and distributed, one headed as "Sarath Nirwachan Chhetra Ke Matdataon Se Appeal" (An appeal to the voters of the Sarath constituency), exhibit 10, and the other headed as "Ausarbadion Se Sawdhan" (beware of opportunists), exhibit 10 (a). The first pamphlet is wholly innocuous and does not contain any allegation against the petitioner or any other candidate.

It describes the achievements of the Congress and eulogises the services rendered by the respondent to the people, particularly, the residents of the Sarath constituency. The Tribunal also does not find fault with this document. As regards the other pamphlet, exhibit 10 (a), the case of the petitioner is that it was distributed at Patharda (Hat) on 20-2-1957, by Madan Prasad Singh of Babhangawan, a brother of the respondent, and at Chitra Hat on 24-2-1957, by the respondent himself and his agent Mathura Prasad Singh.

(After discussion of evidence His Lordship proceeded:)

Another circumstance which seems to have weighed with him is that certain leaflets and Parchas were in fact distributed on behalf of the Congress, but this, in my opinion, has little bearing on the question under consideration. What the law re-quires the petitioner to prove is not the distribution of leaflets and pamphlets in general but the distribution of specific leaflets and pamphlets complained; of. No adverse inference, therefore, can be drawn from the non-production of the Parchas and the leaf-lets which were admittedly distributed on behalf of the Congress.

What we are concerned with in this case is whether the impugned leaflets were in fact distributed by the respondent on the particular date or dates and at the particular place or places, and on a careful consideration of the evidence I have not the slightest doubt that the evidence for the petitioner falls short of establishing the due publication and distribution of the pamphlets at Chitra, or at any other place.

7. Another document, which, according to the petitioner, was published and distributed on behalf of the respondent, is the pamphlet, exhibit 10 (b). It is alleged that this pamphlet was distributed by Baleshwar Mahto, Secretary. Thana Congress Committee, Sarath, the agent of thp returned candidate at Sabaijore, on 24-2-1957. There is no evidence at all of the publication of this pamphlet at Sahai-jore. It must be held, therefore, that this pamphlet was not published by or on behalf of the respondent.

8. Assuming, though not admitting, that the aforesaid pamphlets were published and distributed, as alleged, this by itself is not sufficient to invalidate the entire election. Section 123 of the Representation of the People Act. 1951, enumerates the corrupt practices for the purposes of the said Act. Sub- Section (4) of Section 123 which is relevant for the present enquiry provides as follows:

"The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct, of any candidate, or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election".

The essential ingredients of corrupt practice, as envisaged in this sub-section, are (1) publication by a candidate or his agent or by any other person of any statement of fact, (2) that statement of fact is false, and the candidate or his agent or the other person responsible for publication either believes the said statement to be false or does not believe it to be true, (3) that statement must be in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, and (4) the said statement is reasonably calculated to prejudice the prospects of that candidates election.

Thus, in order to constitute corrupt practice the questioned publication must fulfil these requirements of law. The question that falls for determination is whether the impugned statements answer the requirements of law. (His Lordship then quoted the full text of the pamphlets exhibit 10(a) and 10 (b) which is not material for this report and proceeded as follows:)

The only objectionable insinuation in exhibit 10 (a) is that Kamdeo Prasad Singh, the Praja Socialist candidate was prosecuted for certain political offences during the 1942 Movement and he procured his freedom by tendering apology. This document further mentions the basis of this assertion. The statement regarding apology of the petitioner is rested upon the letter of the Subdivisional Officer, Deoghar, bearing No. 2966 dated 9-9-1946. This document further quotes the well-known saying of Saint Kabir which extols deeds and denounces mere hollow talks.

Prima facie, this constitutes a reasonable comment upon the activities of the petitioner, and if the statement about apology is not false and the respondent did not believe it to be untrue, the reproduction of this saying is fully justified. The statement regarding apology insinuates about the personal character or conduct of the petitioner and will indeed be a corrupt practice if the essential ingredients set forth above are established. Similarly, in exhibit 10(b), the reference to this apology is the only objectionable statement.

This pamphlet contains only questions addressed not to the petitioner but to the Secretary, District Socialist Party, Most of the questions relate indirectly to the good social work done by the respondent. The other questions are not necessarily ascribable to the petitioner, except one relating to this apology, and the other to the aeroplane flying on the occasion of the marriage of the daughter of the petitioner. The other questions may fitly apply to the other members of the Praja Socialist Party or its candidates. In fact, the petitioner has failed to show that those questions were directed against him.

The statement regarding the aeroplane involves no attack upon the character or conduct of the petitioner. Having regard to the social condition, it can hardly be regarded as reprehensible. Thus, so far as these two pamphlets are concerned, the only question that falls for determination is whether the statement regarding the tender of apology by the petitioner during the 1942 Movement constitutes corrupt practice within the meaning of Sub-section (4) of Section 123 of the Representation of the People Act.

9. The distribution of these two pamphlets, as held above, has not been established. Beyond attempting to prove publication the petitioner has adduced no other evidence to establish the other elements of this kind of corrupt practice. Putting the petitioners case at the highest, there was publication of the two offending pamphlets by or on behalf of the respondent. In the eye of law, this by itself is not sufficient to constitute corrupt practice. The petitioner has further to prove that that statement is false and the publisher believed it to be false or did not believe it to be true.

The petitioner simply denied that he tendered apology. On behalf of the respondent R. W. 4 asserted that he did tender apology. The attendant circumstances of the case, which I shall presently discuss, support the evidence of R. W, 4. Any way, no evidence was adduced to prove that it was false or that the respondent or his agent knew it to be false or did not believe it to be true. It is not enough to prove mere falsity of a particular statement, but it must further be proved that it was false to the knowledge of the publisher or that the publisher did not believe it to be true. Even if the statement is proved to be false, the publisher will be protected if he had reasonable grounds to believe it to be true.

Now, there is total lack of evidence to prove that the petitioner or his agent knew it to be false or that they did not believe it to be true. It is undeniable that the onus to establish the different ingredients of corrupt practice, as contemplated by Sub-section (4) lies heavily upon the petitioner. In the case of Bishwanath Upadhaya v. Haralal Das AIR 1958 Ass 97 a Division Bench of the Assam High Court has laid down that the burden of proving falsity of the statements lies on the petitioner and that even if they are established as false, the person who publishes them can seek protection on the ground that he published them believing them to be true.

In this particular case, the onus on the petitioner was heavier still. It is well to remember that the pamphlet, exhibit 10(a), contained not only the statement that the petitioner had tendered apology but also disclosed what was the foundation for that statement, namely, the letter of the Subdivisional Officer, Deoghar, No. 1966, dated 9-12-1946. The petitioner has not denied the existence of such a letter, nor has he said that the letter referred to therein is a forgery. He admitted that he was arrested during the 1942 Movement for certain offences.

He also admitted that the case against him was withdrawn. He did not, however, disclose the reasons for the withdrawal of the case. He has merely stated that his father got him released on furnishing bail. But the release on bail is different from withdrawal of a case. The enlargement on bail does not terminate the proceeding. When the case against him was withdrawn and the pamphlet disclosed that it was withdrawn on his tendering apology on the basis of certain letter of the Subdivisional Officer, Deoghar, it was incumbent upon the petitioner to call for the relevant record and to establish conclusively that he had not tendered apology.

He did nodiing of the sort. Mere denial of apology is not sufficient to discharge the onus that lay upon him. Thus the essential elements of corrupt practice under Sub-section (4) have not been established. In other words, the petitioner has miserably failed to prove that the alleged statements in the two pamphlets constituted corrupt practice within the meaning of this sub-section. On the contrary, the respondent has adduced satisfactory evidence to prove that the impugned statements in the two pamphlets were true and that at any rate they were made bona fide and in good faith, believing them to be true.

10. The petitioner has produced the letter of the Subdivisional Officer, Deoghar, referred to in the pamphlet, exhibit 10(a). This letter is exhibit B. dated 9-12-1946, addressed to the President, Sarath Thana Congress Committee, Sarath. (After quoting this letter and the discussion of evidence regarding genuineness of this letter His Lordship proceeded as follows:-)

Thus, there is adequate evidence to prove the genuineness of the documents referred to above. This correspondence took place in 1946 when there was no such controversy, and it is hard to believe that all these documents have been fabricated for the purpose of this case. In this connection, I may refer to the following significant observations of their Lordships of the Supreme Court in Mobarik Ali Ahmed v. State of Bombay : AIR 1957 SC 857 [LQ/SC/1957/80] :

"The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship".

Judged in this light, the genuineness of the aforesaid documents in my opinion, is above reproach. Mr. Ghosh strenuously argued that there was no guarantee that the blue line in the Crime Directory was drawn across the name of the petitioner. His submission is that it was very easy to extend it beyond serial 30 to comprehend the name of the petitioner also. This submission overlooks the fact that the letter of the Subdivisional Officer (exhibit B) was written in 1946, and the Crime Directory was also written in that year, and there was no sufficient motive for fabrication of this document then.

At any rate, there is nothing to doubt the genuineness of the letter (exhibit B), Considered in the light of these documents, the evidence of R. W. 4 appears to be true. Any way, the respondent has not to prove affirmatively the truth of the statement. All that he is required to show is that he bona fide believed that the petitioner had tendered apology. It is manifest from the plain meaning of Section 123(4) of the Act that the respondent is not required to establish the absolute truth of the statements contained in the offending pamphlets.

If there were sufficient grounds to induce in him a reasonable belief that the petitioner had in fact tendered apology, the case will not come within the mischief of Sub-section (4), even if it subsequently turned out that no apology had in fact been tendered. Even assuming that the petitioner had not tendered apology, and the information to that effect contained in exhibit B was not accurate, the respondent can seek protection on the ground that he had absolutely no reason to doubt the genuineness of the letter of the Subdivisional Officer, and consequently the pamphlets were published believing the information to be true.

Sub-Section (4) punishes those who deliberately and knowingly commit corrupt practice of the kind envisaged in this sub-section. It is not intended to penalise all statements of a candidate however false they may be, provided he believed them to be true. In other words, a candidate, acting honestly and bona fide in furtherance of the cause of his election without any intention to injure the reputation of his rival, is sufficiently protected, and the provisions of Sub-section (4) do not come into play.

In this case, it is quite obvious that the statement regarding tender of apology was rested upon the letter of the Subdivisional Officer, and if this letter is genuine, and I have no doubt about that, the respondent was not guilty of any corrupt practice, as contemplated by this sub-section. In other words, the contravention of this sub-section has not been established in this case, as respects the above publication.

11. I now pass on to the publication of certain statements through newspaper Jhankar. The case of the petitioner is that during the period of election the Congress men working on behalf of the respondent issued and published this newspaper meant solely for the purpose of propaganda. It is alleged that this newspaper was distributed by the respondent and his agents throughout the constituency for the furtherance of his election. In this connection two issues of the said paper have been produced -- one containing the news item " 1942 Ka Gaddar" (rebellion of 1942 -- --), exhibit 6.

This paper, it is said, was distributed in the Sarath Hat on 18-2-1957, by Dwarka Prasad Singh, the election agent of the respondent, and in the Fatehnath Hat on 19-2-1957, by Baleshwar Mahto of Kuror, Secretary, Thana Congress Committee, and agent of respondent. Another issue of the paper is headed "Girgit ki tarah Rang Badalne Wala Congress Birodhiyon se Khule am Prashna" (open question to the rivals of the Congress that change colour like the chameleon). This is exhibit 6(a), dated 24-2-1957.

According to the petitioner, this was distributed by Dwarka Prasad Singh in the Misradih Hat on 27-2-1957. The respondent denies the distribution in toto. He denies further that these papers were published by him or his agent in Order to further his election prospects. It is further denied that Baleshwar-Mahto of Kuror was his agent.

12. Irrespective of the question of authorship and publication of the said paper, there is nothing which can be said to be injurious to the reputation or conduct of the petitioner. As regards exhibit 6, it contains nothing objectionable, except the statement regarding the tender of apology by the petitioner. This stands on the same footing as the previous two pamphlets, and my criticisms above apply to this newspaper, with equal force. The other issue of Jhankar, exhibit 6(a), contains only certain questions addressed to the rivals of the Congress in general.

The name of the petitioner does not occur there. He was not the only rival candidate of the Congress. He was only one of the many persons who opposed the Congress during the last election. There were a number of candidates for the State Legislature and also for the Parliament. There is no complete list of members contesting for the Parliament There is no dispute, however, that more than one contested the seat for the Parliament. The question whether the insinuations conveyed by those questions are directed against the petitioner is a question of fact to be established by evidence.

There is nothing to show even indirectly that those questions had reference to the petitioner. Each and every one of the allegations contained in the aforesaid questions has been denied by the petitioner. Thus, according to him, none of the insinuations conveyed by exhibit 6(a) applies to him. How can then he legitimately urge that his fair name was sought to be spoilt by the publication of the newspaper, especially when he was not the only opponent of the Congress There is absolutely no reason to suppose that only one person was the target of attack in exhibit 6(a) which contains as many as 15 questions.

Then, the fundamental objection remains that there is absolutely no evidence that the publisher and the distributor of these newspapers, whosoever he or they may be, or, for the matter of that, the respondent knew that the statements made therein were false or that they did not believe them to be true. In fact, there is no evidence to establish their falsity, and my observations with respect to the nature and scope of Sub-section (4) of Section 123 of the Representation of the People Act apply here also. As discussed above, it is not a question of presumption, but it is really a question of proof by direct evidence or of inference from facts proved or admitted.

There is no material on the record whatsoever to fasten the publisher or the respondent with the knowledge of their falsity. On this ground alone, the petitioners case with respect to these two issues of Jhankar remains unsubstantiated. On merits also, the case of the petitioner does not fare better. There is no satisfactory and convincing evidence to prove that the respondent or his agents were responsible for either printing and publishing of the newspaper Jhankar or its distribution,

13-17. After discussion of evidence His Lordship proceeded:-). Mr. Ghose contended that the distribution of some leaflets on the part of the Congress had in fact been admitted on behalf of the respondent and that the evidence should not be construed so strictly and literally as not to allow a difference of a few days in the testimony. In my opinion, this argument is not well founded. A. general and vague evidence of circulation of leaflets and news sheets on behalf of the Congress organisa-tion as a whole is hardly of any avail. In order to constitute corrupt practice the circulation of the leaflets must come within the purview of Sub-section (4) of Section 123.

As observed above, these pamphlets and papers do not fulfil the legal requirements. Further, the distribution of pamphlets in general does not necessarily imply that the impugned leaflets and news sheets must have been distributed either by the Congress or by the respondent. In order to succeed the petitioner must establish the circulation of the leaflets complained of. The respondent cannot legitimately be asked to answer such vague accusation. Although the respondent was a candidate on behalf of the Congress, it is obvious that he cannot be held responsible for all that the members of the Congress party did in furtherance of the interest of the Congress orginasation as a whole, unless the participation therein of the respondent or his agents, expressly or by necessary implication, is proved. AH members of the Congress cannot be deemed to be agents of the respondent, unless the agency is established, as required by law.

Nothing has been proved in this case, and hence the general evidence of distribution of leaflets referred to by Mr. Ghose is of little consequence. Again, there is in such a case no room for liberal interpretation of the evidence. When a candidate for election, either to the State Legislature or the Parliament, is charged with the commission of any corrupt practice, the charge is in almost all respects similar to the criminal charge, and, therefore, the evidence must establish the charge conclusively beyond all reasonable doubt. The law prescribes; severe punishment for commission of corrupt practices.

The penalty has been laid down in Sections 139, 140, 140A and 141 of the Representation of the People Act. The corrupt practices, specified in Section 123, shall entail disqualification for membership of Parliament and of the Legislature of every State for a period of six years. The accusation made against the respondent in this case is that he committed corrupt practices, as provided in Section 123, and if the petitioner is adjudged guilty of the commission of the alleged corrupt practices, he will subject himself to the penalty imposed by law, namely, he may be disqualified for membership of Parliament and of the Legislature of every State for a period of six years.

This is indeed a hard punishment, and I do not think how the evidence in such a case can be viewed and weighed differently from the evidence given in a criminal case. In my opinion, the criterion to assess the evidence either in a criminal case or in a case for setting aside election is the same. The case for the petitioner, must stand or fall on its own legs and can derive little sustenance from the weakness in the defence set up by the respondent. The evidence must be such as would bring the charge home to the respondent beyond all reasonable doubt.

Therefore, if the evidence adduced in this case is not sufficient and trustworthy to prove the charge or establishes a charge which is different from the charge levelled against the candidate, the case of the petitioner cannot be said to be proved, and the election cannot be set aside on such evidence. It will be seen that wherever such serious charges are made, which, if proved, entail serious consequences, the principles of criminal jurisprudence have been invoked. Thus the same principles even apply in estimating the evidence in civil cases also where fraud or other charges of the like nature, is alleged. In Narayanan Chettyar v. Official Assignee, High Court Rangoon : AIR 1941 PC 93 [LQ/PC/1941/18] , the plaintiffs claimed to set aside, on the ground of fraud, a sale of land to the defendant, and in considering whether fraud has been established or not their Lordships of the Privy Council have observed that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt, and a finding as to fraud cannot be based on application and conjecture.

In Raja Singh v. Chaichoo Singh : AIR 1940 Pat 201 [LQ/PatHC/1939/215] , a Division Bench of this Court has made a similar observation that it is well settled that where fraud is to be inferred from the circumstances and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility and further that the criterion is similar to that which is applicable to circumstantial evidence in criminal cases. There is, therefore no room for adopting a different standard in cases arising out of election when a defaulting candidate is to be visited with severe penalty which may mar his future political career.

Therefore, the proceedings to set aside an election on the ground of commission of corrupt practices have to be dealt with as if they were criminal proceedings. Accordingly, like the prosecution, the petitioner has to prove the alleged corrupt practices beyond reasonable doubt, and the respondent has similarly all the privileges of an accused and is entitled tn the benefit of the doubt. In these circumstances, the liberal view of the evidence advocated by Mr. Ghose cannot be accepted as correct. Having carefully considered the evidence of both parties, the only conclusion I come to is that the petitioner has failed absolutely to prove the alleged distribution.

18. It follows that there was no contravention of the provisions of Section 123(4) of the Act so far as the pamphlets and the news items, exhibits 10, 10(a) and 10(b) and 6 and 6(a), are concerned. In other words, the respondent is not guilty of any corrupt practice, as envisaged in the above sub-section.

19. The other corrupt practice complained of relates to conveyance of voters in motor vehicles to a polling station. The case of the petitioner is that the respondent procured trucks bearing Nos. BRL 1029 and BRL 945 from Sri Dwarka Prasad Modi of Palugori, Police Station Sarath, on 10-3-1957, and his election agent, Dwarka Prasad Singh and his other agents namely, Mathura Prasad Singh of. Babhan-gama, Judhistir Prasad Singh of Telgarah and others carried voters on trucks to Sonatar booth from villages Lakahnpur, Dumaria, and Brahamsoh on 12-3-1957, and to Sagrajore from Perara and Kumharha. According to the petitioner, the voters were carried to these two booths on that date.

The learned Member held that voters were really carried on motor trucks to Sonater and Sagrajore booths on the said date by Mathura Prasad Singh, uncle and agnate of the respondent, and by Judhistir Prasad Singh, He, however, came to the conclusion that this did not prejudicially affect the result of the election, and, therefore, it could not be declared to be invalid and void. So far as the fact of the carriage of voters on trucks is concerned, there is ample evidence to support the conclusion of the learned Member, and there are no good reasons to take a different view. (After discussion of evidence on this point His Lordship proceeded:-).

20-21. Now, the hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person, for the conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or place fixed under Sub-section (1) of Section 29 for the poll, constitutes "corrupt practice" within the meaning of Sub-section (5) of Section 123 of the Act. Therefore, Nawal Kishore Singh, Mathura Prasad Singh and Judhistir Prasad Singh were guilty of committing corrupt practice of the kind mentioned in Section 123(5).

The question is, what is the extent of the liability of the respondent for the misdeeds of the aforesaid three persons In other words, does the conveyance of voters by them on motor vehicles ipso facto affect the election of the respondent and render it liable to be declared void The corrupt practices have been enumerated and described in Section 123. As provided therein, those corrupt practices may be committed by (a) the candidate, (b) his agent, or (c) any other person. Agent has been defined in Explanation (1) to this section which says:

"In this section the expression agent includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate".

According to this definition, if a person has acted as an agent with the consent of the candidate, he will be also included in the expression agent. The consent to act as an agent does not imply a consent to commit any corrupt practice. The consent is solely for the purpose of acting as an agent. If, therefore, an agent commits a corrupt practice, it cannot be said on the strength of this Explanation that the corrupt practice was committed with the consent of the candidate. For the commission of corrupt practice there must be a consent to that effect. Here, the authorisation extends only to the acting as an agent and in respect of such agent the candidate holds no statutory obligation for all his actions. Now, read in the light of this definition of agent corrupt practices, as contemplated by Section 133, may be committed by

(1) a candidate, or

(2) his election agent, or

(3) his polling agent, or

(4) an agent who acted as such with the consent of the candidate in connection with his election, or

(5) any other person.

The commission of corrupt practice by everyone does not automatically nullify the election in toto. Despite the commission of corrupt practice, the election cannot be declared to be void unless the conditions laid down in Section 100 are fulfilled The grounds mentioned in Sub-section (1) of Section 100 are the only grounds upon which all election can be declared to he void under the Indian Law. This section provides as follows:

"100 (1) Subject to the provisions of Sub-section (2) if, the Tribunal is of opinion --

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected --

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void.

(2) If in the opinion of the Tribunal, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice, but the Tribunal is satisfied --

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;

(b) that all such corrupt practices were of a trivial and limited character or took the from of customary hospitality which did not affect the result of the election,

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Tribunal may decide that the election of the returned candidate is not void",

22. In this case we are concerned with the commission of certain corrupt practices, and the relevant provisions of Section 100 are Sub-sections (i)(b), (1) (d) (ii) and (2). Sub-Section (1) opens with the reservation "subject to the provisions of Sub-section (2)". It is, therefore, evident that Sub-section (2) is an exception to Sub-section (1). Sub-Section (1) enumerates the grounds on which the election of the returned candidate shall be declared to be void. Sub-Section (2) lays down the reverse of it, and provides how the consequences of commission of corrupt practice by an agent of the returned candidate can be avoided by him.

As observed above, the authorisation of a person to act as an agent does not extend to the commission of any corrupt practice, and it in spite of the limited authority corrupt practice is committed by any such agent, the returned candidate should not in equity be visited with the consequences of his election being declared void, provided of course he has taken certain precautions. This is the object of Sub-section (2). It enacts that even when a returned candidate has been found guilty by his agent other than his election agent of any corrupt practice, his election may not be declared to be void, provided the Tribunal is satisfied that the conditions laid down in Clauses (a) to (d) of this sub-section exist; in other words, the corrupt practices were committed contrary to the orders, and without the consent of the returned candidate or his election agent; all such corrupt practices were of a trivia] or limited character or took the form of customary hospitality which did not affect the result of the election; the candidate or his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents. It is worthy of note that Sub-section (2) is not enacted for the annulment of the election but for upholding the election, despite the commission of corrupt practices. An election can be declared to be void only under Sub-section (1).

23. Sub-sections (1) (b) and (1)(d)-(ii) make a distinction between a corrupt practice committed by a returned candidate or his election agent and by any other person. If the corrupt practice has been committed by the returned candidate or his election agent, the election of the returned candidate will of course he declared to be void under Sub-section (1) (h). Nothing more is to be proved. In the case of commission of corrupt practice by any other person there is a further distinction. That person may have committed the corrupt practice with the consent of the returned candidate or his election agent or without such consent.

If the corrupt practice was committed by the said person with the consent of the returned Candidate or his election agent, the election of the returned candidate shall be declared to be void under Section 100(1)(h) as in the case of corrupt practice by the returned candidate himself or his election agent. If the said person committed corrupt practice without the consent of the returned candidate or his election agent, then this corrupt practice falls, under Sub-section (1) (d) (ii), and the election cannot be annulled in consequence of the commission of corrupt practice by such person unless the result of the election in so far as it concerns a returned candidate has been materially affected. In other words, before the election of a returned candidate can be declared to be void because of the commission of a corrupt practice by another person, it must be established that either that person committed it with the consent of the returned candidate or his election agent or its commission materially affected the result of the election. In absence of proof of either of the conditions, the returned candidate cannot be held responsible in law or commission of corrupt practice by persons in general. If it were not so, all the returned candidates will indeed be in a very precarious position.

24. On a proper construction of Sections 100 and 123 of the Representation of the People Act, the above seems to be the correct legal position with respect to the commission of corrupt practice by different categories of persons. I may, however, point out that it is a bit difficult to harmonise the provisions of Sub-section (1) and Sub-section (2) of Section 100. If a corrupt practice is committed by an agent, as envisaged by Sub-section (2) and the conditions laid down in Clauses (a) to (d) thereof do not exist, the question is how the election in such cases can be declared to be void. As pointed out earlier Sub-section (2) does not provide for annulment of an election. Sub-Section (1) contains no specific provisions for avoidance of an election on account of the commission of corrupt practice by an agent. The cardinal principle of construction is to harmonise the two seemingly inconsistent provisions.

The case of such an agent obviously does not fall under Sub-section (1) (b) for the simple reason that such an agent cannot be said to have committed the corrupt practice with the consent of the returned candidate or his election agent. The definition of agent does not include consent to commit corrupt practice. Therefore, this case does not fall under Sub-section (1) (b). The only other provision under which the commission: of a corrupt practice by an agent can therefore be dealt with is the provision contained in Sub-section (1) (d) (ii). In my opinion, a corrupt practice by an agent has to be dealt with in the same manner as one committed by a person, as contemplated by Clause (d) (ii) for the simple reason that the agent, acting as such, cannot in view of the Explanation be deemed to have committed the corrupt practice with the consent of the agent.

If that were not so, there is no other provision for setting aside the election because of the commission of corrupt practice by an agent. On a proper construction of these provisions I am of opinion that in a case where corrupt practice has been committed in the interest of the returned candidate by an agent, not being an election agent, or a person other than the person acting with the consent of the returned candidate or his election agent, the election in either case will be declared to be void under Sub-section (1) (d) (ii), provided the result of the election has been materially affected. In either case material prejudice to the result of the election has to be established. There is, however, one difference.

In the case of corrupt practice by an agent, even where the result of the election has been materially affected the election of the returned candidate may be held not void, if the grounds mentioned in Clauses (a) to (d) of Sub-section (2) are established. The burden of establishing these conditions lies on the returned candidate. If he can show that his hand was absolutely free from any blemish and that he was not at all responsible for the commission of corrupt practice or that it occurred in spite of his order and against his will, the election will be maintained, notwithstanding any prejudice. These conditions however, are not available to a returned candidate where the corrupt practice has been committed by other persons. In their case, the election will be set aside on mere proof of material prejudice.

While I say so, I am not oblivious of a further anomaly introduced by this construction. If Clause (d) (ii) covers the commission of corrupt practice by an agent and by a third person, then there is no cogent reason for such a distinction. On this construction, the agent is rather placed on a lower footing than a third person, for the simple reason that while in the case of a third person the election can be set aside on mere proof of material prejudice, in the case of the other, the election cannot be declared to be void, notwithstanding the material prejudice, if the conditions laid down in Clauses (a) to (d) of Sub-section (2) are established. Nevertheless, there seems to be no escape from this position.

It appears that all the contingencies were not foreseen while enacting Sub-sections (1), and (2). Any way, notwithstanding this slight difficulty there is no conflict between the provisions of these two subsections, and both can operate without any inconsistency. This, in my opinion, appears to be the true legal position.

25. Mr. Ghose, however, contended that subSection (1) (b) was subject to Sub-section (2) and that in the case of corrupt practice by an agent, consent of the returned candidate is presumed, and, therefore, the election cannot but be set aside, unless the grounds mentioned in Sub-section (2) are established. On the plain wording of Section 100, there is no warrant for such a construction. It will virtually nullify the provisions of Sub-section (1) (b). Obviously, Sub-section (1) (b) does not contemplate a case where corrupt practice has been committed by an agent. Where corrupt practices have been committed with the consent of the returned candidate or his election agent, the case obviously falls under Sub-section (1) (b) no matter whether it was committed by an agent or any other person,

When the consent is admitted or proved, the distinction between, an agent and a third person wholly disappear. The difficulty arises where a person acts as an agent and commits corrupt practice without the consent of the returned candidate. In such a case, Clause (b) has no application. Necessarily, therefore, one has to fall back upon Clause (d) (ii) where a corrupt practice has been committed by an agent, for the simple reason that his agency, in view of Explanation (1) to Section 123, does not involve a power to commit corrupt practice.

I may point out that Section 100 does not define an agent. Nevertheless, the definition of agent given in the said Explanation applies in this case also, because both the sections are cognate sections and deal with the same subject-matter, namely, corrupt practices and their legal consequences. The contention of Mr. Ghose presupposes existence of prior consent, and the cause of proving absence of consent and ensuring taking of necessary precautions, as contemplated by clauses fa) to (d) of Sub-section (2) is thrown upon the returned candidate. In my opi-nion, the language of Sub-section (1) (b) is too clear for any speculation about possibilities. It does not admit of any qualification.

There is no room for .supposition of prior con-sent. If corrupt practice has not been committed by a returned candidate or his election agent or by any other person, including an agent, with the consent of the returned candidate or his election agent, subSection (1) (b) does not come into operation at all. In my opinion, the contention of Mr. Ghose is not tenable "and must be rejected.

26. In the light of these legal principles I now proceed to consider the effect of the commission of corrupt practice by Nawal Kishore Singh, Mathura Prasad Singh and Judhistir Prasad, Singh. They were admittedly not the election agents of the respondent, nor were they polling agents. Further, there is absolutely no evidence to show that trucks were used for conveyance of voters with the knowledge and consent of the respondent or his election agent, Dwarka Prasad Singh. No such evidence has been adduced either.

Therefore, the corrupt practices committed by them do not fall under Sub-section (1) (b). They dearly come under Sub-section (1) (d) (ii). The only question is whether they are agents or mere persons as contemplated by that clause. So far as Mathura Prasad Singh and Judhistir Prasad Singh are concerned, there is nothing to show that they were authorised) by the respondent to act as his agents. In the case of Nawal Kishore Singh, there is evidence that he canvassed for him and further that he was given cash money for defraying election expenses. In order to establish agency, it is not necessary to adduce direct evidence. Direct evidence may not be available in all cases. The consent to act as an agent within the meaning of Explanation (1) to Section 123 may be express or implied.

The fact that a person worked as an agent of a candidate with his consent may also be inferred from the circumstances of the case. Having regard to the circumstances of this case, Naval Kishore Singh may be held to be an agent of the respondent. Even if the other two persons are not deemed to be his agents, there will be no material change in the legal position. I may say at once that the conditions laid down in Clauses (a) to (d) of Sub-section (2) for avoidance of the consequences of the commission of corrupt practice have not been proved by the respondent. Therefore for practical purposes whether the aforesaid three persons are agents or mere third persons has no significance. In either case, before the election of the respondent is declared to be void, it must be established by cogent evidence that the result of the election was materially affected.

The question, therefore, that falls for consideration in this case is whether the conveyance of voters on trucks on 12-3-1957. materially affected the result of the election in so far as it concerned the respondent. There is hardly any reliable evidence to show that the conveyance of voters made a material difference to the result of the election of the respondent. There is only vague and indefinite evidence that certain voters were brought on motor trucks to only two of the polling booths........ ........It is uncertain how many voters in all were brought on trucks on the relevant date.

The evidence further falls short of establishing that the voters would not have come to the polling booths from their villages, but for the facilities accorded to them. It was necessary for the petitioner to prove the number of votes so recorded and to establish that if those votes were excluded, the lead taken by the respondent would not have been maintained. We are left in the region of speculation only. In the circumstances, it is difficult to say with any degree of exactitude that if the alleged corrupt practices had not been committed, the respondent would not have obtained the majority of votes. We got an indication of the nature of evidence that should be adduced in such cases from the following observations of their Lordships of the Supreme Court in T. C. Basappa v. T. Nagappa : AIR 1954 SC 440 [LQ/SC/1954/86] at p. 446, later affirmed by it in T. Nagappa v. T. C, Basappa, (S) : AIR 1955 SC 756 [LQ/SC/1955/57]

"The other ground put forward by the High Court that the Tribunal exceeded its jurisdiction in declaring the appellant to be the duly elected candidate, although it had no materials to come to the conclusion that he could have secured more votes than respondent No. 1 but for the corrupt practices committed by the later, seems to us to be without substance. It appears that the learned judges did not properly advert to the findings arrived at on this point by the Election Tribunal, The petitioner, it may be noted, got only 34 votes less than the respondent No. 1. The Tribunal has found that the bus of Ahmed Jan, which was procured by respondent no. 1, did carry to the polling booths about 60 voters in two trips and in the circumstances of the case it could be legitimately presumed that the majority of them did vote for respondent No. 1, II the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the tatters majority by 34 votes would be completely wiped out and the petitioner would gain an undisputed majority".

It must be held, therefore, that the votes so secured by the respondent did not at all affect the result of the election. In other words, the election of the respondent cannot be declared) to be void on the ground that the aforesaid three persons brought voters on motor trucks and, Sub-section (1) (d) (ii) of Section 100 does not come into operation.

27. To sum up, the election of the respondent cannot be declared to be void on the grounds mentioned by the learned Member of the Election Tribunal.

28. Mr. Ghose, however, sought to justify the order of the Tribunal on the ground not found tenable by the learned Member. It is the admitted case of the parties that the two respondents to this election petition, namely, Badri Narain Singh (the returned candidate) and Hargouri Prasad Singh, were Ghatwals and held Ghatwali tenures, known as Bhhaggawan and Taluk Deoli, respectively. There is further no dispute that by operation of the Bihar Land Reforms Act these Ghatwali tenures vested in and passed to the State of Bihar long before the date fixed lor filing the nomination papers.

The contention of Mr. Ghose is that as Ghatwals, both the respondents held office of profit, and, therefore, they were disqualified under Clauses (d) and (e) of Section 7 of the Representation of the People Act and Article 191 of the Constitution of India for being chosen as, and for being, members of the Legislative Assembly of the State. He further contended that the acquisition of Ghatwali tenures by the State under the Land Reforms Act did not effect their position as Ghatwals, and, notwithstanding the operation of this Act they continued to hold office of profit, with the result that the disqualification attaching to them continued and still obtains.

On the other hand, Mr. Lalnarain Sinha put forward the argument that with the acquisition of Ghatwali tenures, the office of Ghatwals also lapsed, and the respondents cannot therefore, be said to have held any office of profit under the Government, His further contention is that by mutual agreement between the Government or the superior landlord and the Ghatwals, grant of Ghatwali tenure is made, and the duties to be performed are prescribed and that even if it be assumed that the Land Reforms Act did not operate to extinguish the office, the acquisition of Ghatwali tenures by the State tenders the performance of that contract impossible, With the result that the contract became void under Section 56 of the Contract Act.

In other words, his contention is that there was frustration of the contract, and, therefore, the respondents cannot be said to have held office of profit tinder the Government. Having given my careful thoughts to these arguments, I am of opinion that the contentions raised by Mr. Sinha are not valid and cannot be accepted as correct. These Ghatwali tenures are part and parcel! of Birbhum Ghatwali. Ghatwali tenures were created by grant of Sanadi or by means of other documents. In this case also both the respondents had executed necessary Muchalka (Security bond) and Kabuliat in favour of the State Government with respect to their respective Ghatwalis. The Kabuliat and Muchalka executed by respondent Hargouri Prasad Singh are exhibits 1 and 2, respectively, and those by the returned candidate are exhibits 3 and 4, respectively.

On the death of the last incumbent, namely, their respective fathers, they, by virtue of being the eldest sons, were appointed Ghatwals, and thereafter they executed the necessary Kabuliat and Muchalka undertaking to pay the fixed revenue and perform the duties of the Ghatwals, namely, to keep careful watch over the villages within their tenure and the roads and Ghats therein and protect the travellers and maintain law and order and prevent commission of crimes, such as, theft, robbery, etc. I do not propose to embark upon a detailed examina-tion of the nature and character of Birbhum Ghatwali tenures. They have been judicially noticed in several cases.

These Ghatwali tenures are coming in existence from the time of the Moghul period. Whatever may have been the position of the other Ghatwali tenures, so far as the Birbhum Ghatwali tenures are concerned, they have certain distinguishing features. Their incidents are governed by the provisions of Bengal Regulation XXIX of 1814, which has the force of statutory law. In Raja Lelanund Singh Bahadoor v. The Government of Bengal 6 Moo Ind App 101 (PC), their Lordships of the Privy Council have described Birbhum Ghatwalis at page 124 in the following terms.

"with respect to the Ghatwally tenures in Beer-bhoom, it is stated in a Regulation passed with respect to them in 1814 (Regulation XXIX of that year), that the class of persons called Ghatwals ia the District of Beerbhoom, form a peculiar tenure, and that every ground exists to believe, that according to the former usages and constitution of the country, this class of persons are entitled to hold their lands generation after generation, in perpetuity, subject, nevertheless, to the payment of a fixed and established rent to the Zamindar of Beerbhoom, and to the performance of certain duties for the maintenance of the public peace and support of the police".

The nature and incidents of the Birbhum Ghatwali tenures were exhaustively dealt with by their Lordships of the Privy Council in Satya Narain Singh v. Satya Niranjan Chakravarti ILR 3 Pat 183 : : (AIR 1924 PC 5). The observations of Lord Sumner therein may be reproduced with advantage:

"In the Santal Parganas there are for practical purposes three classes of Ghatwali tenures, (a) Government Ghatwalis, created by the ruling power; (b) Government Ghatwalis, which since their creation and generally at the time of the permanent settlement have been included in a Zamindari estate and formed into a unit in its assessment, and (c) Zamindari Ghatwalis created by the Zamindar or his predecessors and alienable with his consent. The second of these classes is really a branch of the first. The matter may, however, be looked at broadly. In itself Ghatwal is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a consideration to be enjoyed in return by the incumbent of the office.

Within this meaning the utmost variety of conditions may exist. There may be a mere personal contract of employment for wages, which take the form of the use of land or an actual estate in land, heritable and perpetual, but conditional upon services certain or services to be demanded. The office may be public or private, important or the reverse. The Ghatwal, the guard of the pass, may be the bulwark of a whole countryside against invaders; he may be merely a sentry against petty marauders; he may be no more than a kind of gamekeeper, protecting the crops from the ravages of wild animals. Ghatwali duties may he divided into police duties and quasi-military duties, though both classes have lost much of their importance, and the latter in any strict form are but rarely rendered.

Again, the duties of the office may be such as demanded personal discharge by the Ghatwal and personal competence for that discharge, they may, on the other hand, be such as can be discharged vicariously, by the creation of shikmi tenures and by the appointment and maintenance of a subordinate force, or they may be such as in their nature, only require to be provided for in bulk. It is plain that where a grant is forthcoming to a man and bis heirs as Ghatwal, or is to be presumed to have been made though it may have since been lost, personal performance of the Ghatwali services is not essential so lung as the grantee is responsible for them and procures them to be rendered (Shib Lall Singh v. Moorad Khan 9 Suth WR 126. So much for the Ghatwal. The superior, who appoints him, may also in the varying circumstances of the organisation of Hindustan be the ruling power over the country at large, the landholder responsible by custom for the maintenance of security and order within his estates, or simply the private person, to whom the maintenance of watchmen is, in the case of an extensive property, important enough to require the creation of a regular office.

It would not be easy to draw with precision the distinction in the duties performable by him between a person who might properly be called a Ghatwal, and a person, who is only to be styled a chaukidar, though the legal incidents of the respective positions are clearly different. At the other end of the scale the term "Ghatwal" may he the honourable badge of a great proprietor, who in his day was a veritable Warden of the Marches; in the minor senses of the word Ghatwal can hardly be said to connote a tenure at all. A Jaghir, assigned for the support and remuneration of a Ghatwal, may be no more than wages in kind arising from the use of a plot of land customarily in the occupation of the Ghatwal for the time being, and in such a case personal service by the employee and personal selection and appointment by the employer may we 1 be in every case essential incidents of the relationship.

Incompetence and misconduct on the part of the employee may be causes for removal of the Ghatwal and resumption of his holding (Neelanund Singh V. Surwan Singh 5 Suth WR 292); actual appointment may be the necessary initiation and seal of his office; personal selection may be the whole basis of his service and mere family claims valueless in the matter. On the other hand, there are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that Ghatwali services shall be forthcoming either regularly or when required; services, which it is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted.

In such cases the Ghatwali tenure, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the office to descend to same member of his family, if not necessarily to the senior member. Thus in Kharakpur, Ghatwals have a perpetual hereditary tenure at a fixed jama (Munrunjun Singh v. Lelanund Singh 3 Suth WR 84. A recognised right to be appointed Ghatwal, then takes the place of a formal appointment: a recognised right in the superior to dismiss the Gharwal, if he is no longer able and willing to render the service required by his tenure, and to appoint another person to the office and the tenure of the lands, then readily suffices to maintain in perpetuity the incidents of the tenure .......

It is true that, so far as the superior is concerned, the inconveniences which would arise from allowing to the Ghatwali a free right of alienation may be met by reserving to the superior the right of withholding consent to the alienation and thus defeating it, and this, coupled with the right to appoint a successor to the office when it tails vacant, may in practice be sometimes all the protection that the superior requires, but in two points affecting others it is insufficient. First of all, when the Ghatwals office has become hereditary in his family, alienation by him becomes impossible without intringing the right of his heirs, and secondly when the office is of a public character and held for the general good, it is not enough to safeguard the superiors personal right of appointment, but it is also necessary to ensure that the lands and the services shall remain substantially connected so that actual performance and not mere subordination may be assured, and this involves that the lands must remain impartible and inalienable .............. Since the tenure is a service tenure, the lands are liable to forfeiture if the obligation of service is expressly repudiated, while the rights of the ruling power are similarly sufficiently safeguarded by holding that the succession of an heir incapable of rendering even the vicarious service involved in the provision of this armed force, might be treated as being in itself a ground of forfeiture in the person of that successor, if not in the persons of the entire family, for it is what might be called an anticipatory repudiation

Although none of these decisions governs the present case, they involve the principle that where a tenure is created, as distinct from a mere personal employment, the tenure-holder has such an interest in the rendering of the services as entitled him to such benefit of the tenure as accrues from his readiness and willingness to perform his obligation. The service is not a mere burden on the land; it constitutes a personal right in so far as the land held on that condition is concerned, and a personal obligation in so far as concerns the grantor, which being in the nature of a public obligation, cannot be waived by the grantor for his own advantage, nor, being in the nature of a title to the lands, can be relegated to desuetude for the mere disadvantage of the Ghatwal.

The truth is that, where rights can once be shown to have been established and continue to be vested in living persons, obsolescence and desuetude are popular expressions rather than solid legal grounds for refusing a continuing recognition to the right as originally established".

29. The incidents of the Birbhum Ghatwali tenures were also recently examined by their Lord-ships of the Supreme Court in Tikait Hargobind Prasad Singh v. Sm. Phaldani Kumari, : AIR 1952 SC 38 [LQ/SC/1951/69] . Their Lordships have observed as follows:-

"Its origin is now well known. In Moghul times grants of land were made to selected persons who were appointed guardians of the mountain passes for protecting the country side against bill invaders and the office held by these persons bore the designation Ghatwal.

These grants were made in some cases directly by the ruling power and in other cases by the zamindar responsible by custom for the maintenance of security and order within the estate as consideration for the performance of the duties. By efflux of time these grants assumed the form of an actual estate in land, heritable and perpetual, but conditional upon services certain or services to be demanded .... The result of the decided cases and of the provisions of the regulation is that the grantee of the tenure and his descendants have to be maintained in possession of the land from generation to generation conditional upon services to be rendered. The tenure is, however, liable to forfeiture for misconduct or misbehaviour of the Ghatwal for the time being.

The succession to it is determined by the rule of lineal primogeniture. It is neither partible nor alienable (except in exceptional cases with the consent of the Government or the Zamindar, as the case may be). These two characteristics are inherent in its very nature and have not been annexed to it by rule of custom. The estate in the hands of the last holder is not liable either to attachment or sale in execution of a decree against him; nor is it liable in the hands of his successor for payment of his debts. When the succession opens out, the heir determined according to law has to execute a muchjlika in favour of the grantor guaranteeing the performance of the duties annexed to the office and stipulating that in case of misconduct or misbehaviour or non-fulfilment of the obligations attaching to the office as to which the tenure is in the nature of a remuneration. Government will have the right to resume it."

30. The above character and incidents of Ghat-wali tenures, about which there is no controversy now, show unmistakably that Ghatwals must be regarded as persons holding office of profit under the Government. The two main characteristics of the Ghatwali tenures are the creation of the office of Ghatwals for the performance of certain duties of police and military nature and grant of land for support and remuneration of a Ghatwal. These tenures are not transferable and also not heritable in the strict sense of the term. It is true that the tenures descend to one of the members of the same family generation after generation, but on the death of the last incumbent of the family, appointment of his successor has to be made by the Government.

It follows that the appointing authority is the Government, and the Government also assigns lands for the remuneration of the services. These Ghatwali tenures are further liable to resumption and Ghatwals are liable to removal on the ground of incompetence or misconduct. All these clearly establish that Ghatwals hold office of profit under the Government within the meaning of Article 191 of the Constitution of India so that they are disqualified from membership to the Legislative Assembly of the State (see Ramappa v. Sangappa, : AIR 1958 SC 937 [LQ/SC/1958/92] ). In this case, the disqualification attaching to the office of the Ghatwals has not been removed by the Bihar Legislature. Accordingly, the two respondents are no doubt disqualified for being chosen as members of the Legislative Assembly.

Mr. Lalnarain Sinha did not seriously challenge that the office of Ghatwals is an office of profit under the State Government. His contention, however, is that by operation of the Bihar Land Reforms Act, the office has ceased to exist, and the tenure assigned for remuneration has been acquired by the State Government. He urged that in view of the acquisition of Ghatwali tenures, no disqualification attaches to the respondents. This leads us to the consideration of the effect of the vesting of Ghatwali tenures in the State under the Bihar Land Reforms. Act.

31. The distinction between acquisition and resumption of Ghatwali tenures has to be kept in mind. The Government or the superior landlord is entitled in law to resume a Ghatwali tenure on tha ground of incompetence and misconduct. The acquisition by the State of Ghatwali tenures under the said Act is not a resumption or forfeiture of these tenures. The resumption and forfeiture involve the abolition of the office and the removal of Ghatwals. The Bihar Land Reforms Act does not operate to abolish the Office and remove Ghatwals. It only takes over Ghatwali tenure on payment of the statutory compensation, leaving the office of Ghatwals intact. The Bihar Legislature has not enacted for the abolition of the office of Ghatwals. In T.M. Deo v. State ILR Pat 57 at p. 92, Imam, C. J., with whom Jamuar, J. agreed, observed as follows:-

"The provisions of the Bihar Land Reforms Act, however, make no reference to the office of a Bir-bhum Ghatwal and it cannot reasonably be said that the State Legislature of Bihar legislated with reference to it. The provisions of that Act are entirely concerned with land and how it can be acquired by the State on payment of compensation. Its provisions may no doubt deprive the Ghatwal of his land, but it seems to me that its provisions cannot be regarded as an unreasonable restriction on the duties of his office because in fact he has no duties to perform. Such duties as he had in the past are almost entirely, if not altogether, undertaken by the Government of the State of Bihar".

The office of Ghatwals, therefore, remains intact, no matter whether in the changed circumstances any duties pertain to that office or not.

32. Apart from this, the entire tenure has not, in substance, vanished. It is true that under Section 4 of the Bihar Land Reforms Act all the Ghatwals tenures have vested in the State. But, by virtue of the provisions of Section 6 of the said Act, there was a statutory lease back to the Ghatwals of all the agricultural and horticultural lands which were in their khas cultivating possession on the date of the vesting. Therefore, notwithstanding the acquisition of the Ghatwali tenures, the Ghatwals continued to own and, possess all the agricultural and horticultural lands which were in their khas cultivating possession prior to the date of vesting, though under a different title. These lands, therefore, still continue to be a part of the grant meant for the remuneration of the office of Ghatwals,

Then there is a further consideration. The amount of compensation payable under the Bihar Land Reforms Act is still available to the Ghatwals by way of remuneration for the performance of the duties enjoined upon them. I am fortified in this view by the observations of the Calcutta High Court in Ram Chunder Singh v. Mahomed Jowhuruzuma Khan 23 Suth WR 376. In this case certain lands appertaining to Ghatwali tenure were acquired by the Government for railway purposes, and the compensation money was deposited in the Government treasury of Deoghar. The Ghatwal instituted the suit to recover the compensation money. Their Lord-ships of the Calcutta High Court disallowed his claim and observed as follows:

"But the plaintiff is a Ghatwal. His title is not that of an absolute owner. He is only entitled to enjoy the profits of the Ghatwalee mehal during his life without power of alienation. The compensation money in deposit is only a money equivalent of a portion of that mehal. He can, therefore, only enjoy its interest without any right of spending any portion of it. He is bound to keep it intact as a part of the Ghatwalee property, so that his successors may obtain it, quite undiminished in value. This being the nature of his title, we ought not to declare his right to obtain this money, without imposing upon him certain conditions, for the purpose of preserving it, in future as part of the assets of the Ghatwalee mehal".

This legal position has been approved by the Supreme Court in the case of Tikait Hargobind Prasad Singh, : AIR 1952 SC 38 [LQ/SC/1951/69] , referred to above (wrongly shown in the report as Ram Narain Singh v. Ramoon 23 Suth WR 76. It is manifest, therefore, that notwithstanding the acquisition of Ghatwali tenures by the State under the Land Reforms Act, the compensation money payable under the Act still constitutes the corpus of the Ghatwali which would devolve on the next heir intact, and the incumbent for the lime being is entitled to the interest accruing due from time to time on the compensation money and cannot spend it as he Iike, to the detriment of his successor. It is, however, for the appropriate authority to provide against unwarranted usurpation of the compensation money by the present Ghatwals. The fact remains that the Ghatwali tenures have not been entirely wiped out by the operation of the Land Reforms Act. The position that emerges is that the recent enactment has only altered the form of the corpus of Ghatwali tenures and does not extinguish the grant altogether. The grant still subsists, though in an altered form. When the amount of compensation money and the culturable lands comprised in the Ghatwali tenures are still available and when the discharge of the obligations has not thus been rendered wholly unremunerative, it is impossible to maintain with any show of reason that both the office of the Ghatwals and the grant of land for support thereof have been wholly obliterated in consequence of the acquisition of tenures by the State. The inevitable conclusion is that both the office and the grant still subsist, though in another form.

33. Mr. Sinha attempted to make a distinction between a grant of office for which land is the remuneration and a grant of land burdened with the condition of service and argued that when the tenure has been acquired, the office automatically came to an end and the obligation to perform the service ceased, and, therefore, the effect of acquisition of the Ghatwali tenure under the Land Reforms Act is that both the tenure and the office lapsed. On the other hand, Mr. Ghose would maintain that office was created for the Ghatwals, and the Ghatwals were remunerated by grant of lands.

There can be no dispute that Ghatwali tenure is a service tenure. As observed by Lord Sumner in the case of Satya Narain Singh ILR Pat 183: : AIR 1924 PC 5 referred to above, that a Ghatwali tenure is a service tenure, and the lands are liable to forfeiture if the obligation of service is expressly repudiated, or cannot be properly discharged due to incompetence or misconduct. Rut, whether it was a service tenure of the kind asserted by Mr. Sinha or of the kind advocated by Mr. Ghose, there is no specific judicial pronouncement. In the reported decisions Ghatwali tenures have been variously described. Lord Sumner has observed in the aforesaid case that Ghatwal is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a consideration to be enjoyed in return by the incumbent of the office.

Some of the observations of their Lordships of the Privy Council in 6 IndApp 101 (PC) give the impression that it was a grant of lands which were appropriated to reward the services of Ghatwals. The observations of their Lordships of the Supreme Court in the case of Tikait Hargobind Prasad Singh, : AIR 1952 SC 38 [LQ/SC/1951/69] would show that it was the grant of an office, and the tenure was in the nature of a remuneration for the fulfilment of the obligation attaching to the office.

In the view which I have ventured to express above, the distinction sought to be made is of an academic nature. It does not call for a concluded opinion. One obvious characteristic is that having regard to the history of Ghatwali tenures the lands and services are intimately connected. Any way, when in some form or other both the office and the remuneration set apart for it exist, notwithstanding the operation of the Land Reforms Act, it is of no materiality whether the Ghatwali tenure is a grant of land burdened with service or creation of an office subject to the performance of services of public nature by the grantees. In either case, the position seems to be clear that it is an office of profit held under the Government.

34. The next question is whether there was frustration of the contract under Section 56 of the Contract Act. This section provides that a contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. To attract the doctrine of frustration of contract the performance of the contract must become absolutely impossible due to the supervening event, legislative or otherwise. Where in spite of intervention of events subsequent to the making of the agreement which were not in contemplation of the parties and which could not be foreseen with reasonable diligence, the contract could still be performed in substance, it cannot be said that the contract has become impossible of performance within the meaning of Section 56 of the Act.

If the view I have expressed above with regard to Ghatwali tenures in the light of the operation of the Land Reforms Act is correct, then having regard to the object and purpose of Ghatwali tenures, the performance of the contract cannot be deemed to be impossible or impracticable. This legislative enactment cannot be said to have wholly upset the very foundation on which the parties rested their bargain. I need hardly observe that if the foundation remains in substance, the contract will continue to be capable of performance. It is true that the changes introduced by the recent enactment have caused diminution in the amount of remuneration.

It is one thing to say that the profit or remuneration has diminished and another thing to say that the performance has been rendered impossible. The decrease in the amount of remuneration has the effect of rendering the contract more burdensome. But, to attract the doctrine of frustration, burden-someness is not the necessary consideration; the impossibility of performance of the contract is the true criterion,

In Surpat Singh v. Sheo Prasad Gupta a Division Bench of this Court has observed that when it has not become impossible for the patnidar to discharge his obligation under the lease, but merely burdensome to him to do so, the doctrine can have no application whatever. In my Opinion, Section 56 has no application, and the contract cannot be regarded as impossible of performance. This contention of Mr. Sinha must be overruled.

35. In my considered judgment, notwithstanding the acquisition of Ghatwali tenures by the State, both the grant and the office of the Ghatwals subsist even now, though in an altered form, and the performance of the obligations under the contract cannot be said to have become impossible. Therefore, the two respondents held, and still hold, an office of profit under the State and were, therefore, dis qualified under Article 191 of the Constitution for being chosen as, and for being, a member of Legislative Assembly or Legislative Council of the State. The order of the learned Member declaring the election of the returned candidate to be void is, therefore, correct, though on diferent grounds.

36. Lastly Mr. Sinha contended that the finding recorded by the Election Tribunal on issue No. 1 that the election petition was not incompetent for non-joinder of the two candidates who withdrew was wholly erroneous. Five persons, namely, the petitioner and the two respondents and Dwarka Prasad Singh and Nunka Saran. filed nomination papers under Section 33 of the Representation of the People Act, and under Sub-section (8) of Section 36 their nomination papers, after due scrutiny, were found valid. Two of them, namely, Dwarka Prasad Singh and Nunka Saran, withdrew their candidature under Section 37 of the said Act.

After their withdrawal, a list of contesting candidates was prepared, as provided in Section 38. According to this list, the petitioner and the two respondents were the only contesting candidates. Dwarka Prasad Singh and Nunka Saran cannot be regarded as contesting candidates. They have not been implead-ed as respondents to the election petition, and the question is whether they were necessary parties and whether their non-joinder was fatal to the petition. The answer depends upon the correct interpretation of Section 82 of the Representation of the People Act which provides for joinder of parties. It runs as follows :-

"A petitioner shall join as respondents to his petition -- (a) where the petitioner, in addition to claiming a declaration that the election nf all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such Further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition".

It will be observed that the question of determination of necessary parties to an election petition depends upon the nature of the relief claimed by the petitioner. Two kinds of reliefs may be claimed, first, the petitioner may claim that the election of all or any of the returned candidates is void, and, second, in addition to claiming the above declaration he may claim a further declaration that he himself or any other candidate has been duly elected. In the case of the former the only persons who should be joined as respondents to such petition are the returned candidates and any other candidates against whom allegations of corrupt practice are made in the petition. In the case of the latter, the necessary parties are all the contesting candidates, other than the petitioner and any other candidates against whom allegations of corrupt practice are made in the petition. In short it appears that where the petitioner in addition to claiming a declaration that the election of all or any of the returned candidates is void claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates are necessary parties, and where no such additional relief is sought, all the returned candidates are necessary parties. In either case, however, if there is a candidate against whom allegations of corrupt practice are made in the petition, he also must he impleaded as a respondent as provided in Section 82(b). What is the meaning of the expression "contesting candidates" admits of no doubt whatsoever in view of the recent pronouncement of their Lordships of the Supreme Court in Kamaraja Nadar v. Kunju Thevar, : AIR 1958 SC 687 [LQ/SC/1958/59] . They have observed as follows:

"The process of election starts from the issue of a notification calling upon a constituency to elect a member or members. The nomination papers filed by the appointed date are scrutinized by the returning officer and a list of validly nominated candidates is prepared. When such a list is prepared a stage is reached when the whole constituency knows who are the validly nominated candidates standing for the election ............. A candidate who has been validly nominated may also, after the list of the validly nominated candidates is published, re-assess his prospects at the election and may think it worth his while to withdraw his candidature and retire from the field .............. if such notice of withdrawal is given by any candidate, the returning officer is to cause such notice to be affixed in some conspicuous place in his office. After this date has passed it is definitely known who are the candidates validly nominated as such and who wish to contest the election. These candidates who survive the date of the withdrawal of candidatures are described in Section 38 as contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidatures within the said period. A list of the contesting candidates is immediately thereafter prepared and published by the returning officer ... .......... These contesting candidates within the phraseolngy, which has been used in Section 38 are candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidatures within the period prescribed for such withdrawal. These are the contesting candidates within the meaning of that term as used in the Act and they are normally expected to go to the pall".

There can be no doubt therefore, that the contesting candidates are those who have been included in the list of validly nominated candidates published under Section 38. Even such contesting candidates may retire from the contest by a notice, as provided in Sub-section (2) of Section 55A of the said Act. The question is whether the candidate who has so retired is also a contesting candidate. In the aforesaid case, their Lordships of the Supreme Court have laid down that such a candidate continues to he contesting candidate for the purposes of Section 82 of the Act, notwithstanding his retirement from the contest under Section 55A(2).

37. In this particular case, only the petitioner and the two respondents remained in the field, and they were included in the list of validly nominated candidates published under Section 38 of the Act. None of them retired, as provided in Section 55A(2). They are of course parties to this petition--one as the petitioner and the other two as the respondents. Two of the candidates who withdrew have not been impleaded as respondents. In this election petition, the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, claimed a further declaration that he himself had been duly elected. In view of this further relief any other candidate against whom allegations of corrupt practice have been made in this petition should also be impleaded as respondent, as provided in Section 82(b) In the election petition allegations of corrupt practice were made against at least one of the candidates who withdrew, namely, Dwarka Prasad Singh.

The question, therefore, resolves into this; whether Dwarka Prasad Singh was or was not a necessary party and the answer depends upon whether he can be regarded as a candidate, as envisaged in Section 82(h). In other words, the question is whether Section 82(b) applies to the present case. This, in turn involves the consideration whether the expression "any other candidate" in Section 82(b) includes a candidate who withdrew his candidature under Section 37 of the Act. The word candidate has been defined in Section 79. Both Sections 79 and 82 occur in Part VI of the Representation of the People Act, 1951. Section 79 provides:

"In this part and in Parts VII and VIII, unless the context otherwise requires, --

(b) Candidate means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate";

According to this definition a person whose nomination paper has been found to be valid and who is included in the list of validly nominated candidates, as provided in Section 36, is a Candidate, and if such a candidate has subsequently withdrawn he does not cease to be a candidate. This definition of course holds good only when there is nothing repugnant to the context. I personally find no repugnancy here. It will be seen that there are five categories of candidates under the Representation of the People Act namely. (1) a validly nominated candidate. (2) a candidate who has withdrawn. (3) a contesting candidate, (4) a candidate who has retired from the con- test, and (5) a returned candidate. The contesting candidate in clause 82la), as pointed out above, includes also a candidate who has retired from the contest. If the contesting candidates and the returned candidates are left out, the only candidates who remain are the candidates whose nomination papers Were found valid and who had subsequently withdrawn. Contesting candidates and returned Candidates have to be impleaded according as one or the other condition laid down in Section 82(a) is fulfilled. The expression "any other candidate" in Clause (b), therefore, obviously includes a candidate who has withdrawn, otherwise it will be difficult to say which candidate is meant in that clause. This, in my opinion, seems to he the correct interpretation of Section 82.

38. Mr. Ghose, however, relied upon a Bench decision of this Court in Kapildeo Singh v. Suraj Narayan Singh Misc JC No. 603 of 1957 D/- 2-12-1958 : (: AIR 1959 Pat 250 [LQ/PatHC/1958/190] ). It has been laid down in this case that the words "any other candidate" used in Clause (b) of Section 82 do not include candidates who withdrew their candidature under Section 37 of the Act. With great respect, I think this interpretation virtually renders Section 82(b) nugatory. This is, however, a decision of a Division Bench of this Court and is binding upon this Court. Following this decision, it must be held that the two candidates who withdrew were not necessary parties to the election petition, and, therefore, it was not incompetent on that ground.

39. To conclude, the election of the returned candidate is not valid, and the order of the Tribunal is, therefore, right, though on different grounds. Further, there was only one seat, and three persons contested it, namely, the petitioner and the two respondents. The two respondents were disqualified for being chosen as, and for being, members of Legislative Assembly or Legislative Council of the State, and, therefore their nomination papers were not validly accepted. If their nomination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kamdeo Prasad Singh AND, therefore, he must be declared to be duly elected.

40. In the result, Election Appeal No. 7 of 3958 is dismissed, and Election Appeal No. 8 of 1958 is allowed, and Kandeo Prasad Singh is declared to be duly elected to the Bihar Legislative Assembly from the Sarath State Assembly constituency in the district of Santal Parganas. In the circumstances of the case, the parties will bear their own costs.

Untwalia, J.

41. I entirely agree.

Advocates List

For Petitioner : Lalnarain Sinha, I.K. Choudhary, L.K. SharmaG.P. Misra, Advs. In Election Appeal No. 7 of 1958B.C. GhoshKanti Kumar Sinha, Advs. In Election Appeal No. 8 of 1958For Respondent : B.C. Ghose, Kanti Kumar Sinha, K.P. VermaShankar Kumar, Advs. In Election Appeal No. 7 of 1958Lalnarain Sinha, L.M. SharmaJ.C. Sinha, Advs. In Election Appeal No. 8 of 1958

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE JUSTICE KANHAIYA SINGH

HON'BLE JUSTICE N.L. UNTWALIA, JJ.

Eq Citation

21 E.L.R. 64

AIR 1961 Pat 41

LQ/PatHC/1959/47

HeadNote

ELECTIONS — Corrupt Practices — Publication of scurrilous pamphlets and newspapers — Publication of pamphlets "Sarath Nirwachan Chhetra Ke Matdataon Se Appeal" and "Ausarbadion Se Sawdhan", "Jhankar", and a notice making deliberately false aspersions on personal character of petitioner — Held, assuming though not admitting that the aforesaid pamphlets were published and distributed, as alleged, this by itself is not sufficient to invalidate the entire election — The essential ingredients of corrupt practice, as envisaged in S. 123(4) R.P. Act, 1951, are (1) publication by a candidate or his agent or by any other person of any statement of fact, (2) that statement of fact is false, and the candidate or his agent or the other person responsible for publication either believes the said statement to be false or does not believe it to be true, (3) that statement must be in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, and (4) the said statement is reasonably calculated to prejudice the prospects of that candidate's election — In order to constitute corrupt practice the questioned publication must fulfil these requirements of law — The only objectionable insinuation in pamphlet "Ausarbadion Se Sawdhan" is that petitioner was prosecuted for certain political offences during 1942 Movement and he procured his freedom by tendering apology — This document further mentions the basis of this assertion — Statement regarding apology of petitioner is rested upon letter of Sub-Divisional Officer, Deoghar, bearing No. 2966 dated 9-9-1946 — Prima facie, this constitutes a reasonable comment upon the activities of the petitioner, and if the statement about apology is not false and the respondent did not believe it to be untrue, the reproduction of this saying is fully justified — The statement regarding apology insinuates about the personal character or conduct of the petitioner and will indeed be a corrupt practice if the essential ingredients set forth above are established — Similarly, in pamphlet "Jhankar", the reference to this apology is the only objectionable statement — Held, the statement regarding the aeroplane flying on the occasion of the marriage of the daughter of the petitioner involves no attack upon the character or conduct of the petitioner — Having regard to the social condition, it can hardly be regarded as reprehensible — The distribution of these two pamphlets, as held above, has not been established — Beyond attempting to prove publication the petitioner has adduced no other evidence to establish the other elements of this kind of corrupt practice — Putting the petitioner's case at the highest, there was publication of the two offending pamphlets by or on behalf of the respondent — In the eye of law, this by itself is not sufficient to constitute corrupt practice — The petitioner has further to prove that that statement is false and the publisher believed it to be false or did not believe it to be true — The petitioner simply denied that he tendered apology — On behalf of the respondent R. W. 4 asserted that he did tender apology — The attendant circumstances of the case, which I shall presently discuss, support the evidence of R. W. 4 — Any way, no evidence was adduced to prove that it was false or that the respondent or his agent knew it to be false or did not believe it to be true — Relying on