Shri Daulat Ram Sankhyan vs Shri Kuldip Singh

D.B. Lal, J.—Shri Daulat Ram Sankhyan, erstwhile Deputy Minister Agriculture, Himachal Pradesh, having lost in the Assembly election of 1972 from Kot Kehloor constituency, has filed this election petition under sections 81 - 83 of the Representation of the Peoples Act, 1951 (hereinafter to be referred as the Act) for setting aside the election of the Respondent Shri Kuldip Singh who has been declared elected from this constituency. The allegations made in the petition may now be briefly stated.

A notification calling upon the voters of the Constituency No. 20, namely, Kot Kehloor in the District of Bilaspur was made on 31st January, 1972 to return a candidate to the Legislative Assembly of Himachal Pradesh. The dates for filing the nomination papers were between 1st to 8th February, 1972. The scrutiny was held on 9th February, 1972 and withdrawal of candidates was allowed up to 11th of February, 1972. The polling in the constituency was held on 5th of March, 1972. Thereafter the counting took place on 11th of March, 1972 and the results were declared. There were six candidates who had contested the election and amongst them Kuldip Singh, Respondent who belongs to Congress, polled the highest number of votes. He defeated his closest rival Daulat Ram Sankhyan by 695 votes. According to the Petitioner, the election of the Respondent Kuldip Singh is void on a variety of grounds. He submitted that Kuldip Singh was not qualified or was disqualified, to be chosen to fill the seat, under the Constitution of India and under the provisions of the Act, inasmuch as, there subsisted two contracts entered into by him in the course of his trade or business with the State of Himachal Pradesh for the execution of works which he described as a contract in partnership with one Rikhi Ram for clearance of dry cheel forest in Jhola Forest Division and a contract of construction work which he described as " a building in open air Jail at Bilaspur ,, As regards the first contract, the allegation was that he had applied for transfer of his interest in such contract in favour of his son Pradeep Singh which transfer was not validly effected inasmuch as Pradeep Singh is only 22 years of age and is a student. He had no funds of his own, nor any ostensible source of income. As such the real interest was of the Respondent himself. According to the Petitioner the Respondent constitutes a joint Hindu family with Pradeep Singh. As to the second contract it was averred, that a dispute existed regarding wages payable to the labour employed on the works. The security deposited by Kuldip Singh was not refunded as the labourers have not been paid as yet. In this manner the two contracts were stated to be subsisting and as such the Respondent, according to the Petitioner, was not qualified to stand in the election.

The Petitioner contended that one Hari Singh, vice-President of Bhakhra Panchayat along with 13 or 14 others was accused of criminally removing the goods of a dispensary situate in village Saloha. A police case regarding that offence was pending in the Court of the Magistrate First Class Bilaspur. On the night between 17th and 18th February, 1972, Dr. Y.S. Parmar, the Chief Minister of Himachal Pradesh came and stayed at the Circuit House of Bilaspur. Hari Singh was called to meet the Chief Minister at that time. Shri Kuldip Singh complained that Hari Singh was not working in favour of the Congress, and the latter was asked by Dr. Parmar that he would make an order for withdrawal of the police case against him. Hari Singh further wanted the dispensary at Saloha to be shifted to his village Makri. The order for the shifting of the dispensary was made on the very next day. The prosecution case was withdrawn on a day subsequent to the election. In this manner, according to the Petitioner, Hari Singh was bribed by the Chief Minister who was an agent of Kuldip Singh in furtherance of the election prospects of the Respondent.

According to the Petitioner construction work was going on within this constituency for Thach-Chokoh-Sakroha road and several mates and labourers including Devi Ram, Tulsi Ram, Dhani Ram etc., were working on such road. These mates were removed from their service so that pressure could be exerted upon them to help the Respondent, Randhir Singh who is a nephew of the Respondent, according to the Petitioner, called a meeting on 29th February, 1972 at the house of Tulsi Ram of Chokoh. With the help of Paras Ram Tehsildar these mates were re-employed on the construction of that road. One Krishnoo Ram was employed as Supervisor instead of Kala Ram who worked as Polling Agent at Saloha for the Respondent. This was again an act of bribery committed by the agent of the Respondent. In the meeting which took place on 29th February, 1972, at the house of Tulsi Ram of Chakoh Bardu Ram and Kirpa Ram were induced to canvass for the Respondent and they also voted for him. In lieu thereof, their services were assured as mates. Kirpa Ram also became Polling Agent of the Respondent.

The Petitioner also alleged specific acts of undue influence on the part of the Respondent or his agent inasmuch as, he submitted that Dr. Y.S. Parmar the Chief Minister came to Bilaspur on 18th February, 1972, and addressed two meetings one at Chokoh at 10 A.M. and the other at Namhol at 2 P.M. In these meetings the Chief Minister stated that the treasury was under his control as he possessed the keys of such treasury and he would advance funds for the development of the constituency only in case Kuldip Singh was voted and returned as a successful candidate. These speeches had influenced the voters and in this matter the Respondent is guilty of corrupt practice of undue influence.

Yet another incident of undue influence was pleaded by the Petitioner with reference to one Uma Datt, President of Gram Panchayat Sawahan. It is stated that Uma Datt was available at Charol where he had gone to attend a Barat. He was brought from there by Kuldip Singh and he was produced before the Chief Minister at the Circuit House of Bilaspur late in the night between 17th and 18th February, 1972. Kuldip Singh complained that Uma Datt was not working for the Congress, and the Chief Minister, who according to the Petitioner was the agent of the Respondent, extended a threat to Uma Datt, that his son who was in government service would be transferred to a remoter area in case Uma Datt did not support the Congress candidate. However, according to the Petitioner, Uma Datt boldly refused to agree to support the Congress candidate.

According to the Petitioner, the Respondent obtained or procured assistance in furtherance of his election prospects from persons who were gazetted officers in the service of the government. Shrimati Indira Gandhi, Prime Minister of India addressed a meeting at Bilaspur--on 22nd February, 1972, and for that meeting the entire arrangement was made by the District Authorities including the Chief Engineer of the Public Works Department. For the convenience of the Prime Minister a helipad was constructed at a considerable cost. The officers of the Public Relations Department installed the loudspeakers. They held tours in that connection between the dates 18th to 21st February, 1972. One Chhattar Singh, Deputy Director, Public Relations, even announced from the stage the arrival of the Prime Minister. The Chief Minister introduced the Respondent along with other Congress candidates to the Prime Minister. The Respondent occupied the same stage from where the speech was delivered by the Prime Minister. According to the Petitioner, people were carried in trucks to attend that meeting. The District Authorities arranged these trucks. All this was done with the consent of the Respondent and even the Prime Minister could be considered to be an agent of the Respondent. In this manner the Respondent procured assistance from gazetted officers and members of the police force. He was guilty of corrupt practice and as such his election is liable to be set aside.

The Petitioner produced two pamphlets (Ex. P 2 and Ex. 3) one purported to be published by Hiru Ram, Kamla Devi, Rattan Singh and Dharmu (Ex. P 2) and the other published by Raja Anand Chand of Bilaspur ex-Member of Parliament (Ex. P 3). The first pamphlet contained defamatory statements concerning the Petitioner. The allegations not only related to his personal character or conduct but affected his prospects in the election. According to the Petitioner his prospects in the election were highly prejudiced. In the pamphlet Ex. P 2 a certain letter dated 6th July, 1971, was reproduced stated to be issued by the Chief Minister to the Petitioner. This letter, according to the Petitioner, was never issued and as such the statements concerning this letter were false to the knowledge of the Respondent. The Chief Minister purported to write in this letter that the Petitioner had taken an industrial loan of Rs. 24,000/- in partnership with his brother Naruia Mal which he had not paid back. Besides that loan, the letter further recited that the Petitioner managed for his friends and relations several loans for soil conservation and for horticultural purposes. It was also mentioned in the letter that the Petitioner was dismissed from the post of Deputy Minister because of undesirable activities. It was stated that Russian tractors were sanctioned by the Petitioner in favour of his own son while he was holding the office of Deputy Minister. Similarly the Petitioner himself sanctioned loans in favour of his wife and other close relations. The pamphlet further recited that the Petitioner had transferred his own son to Chopal to look after his land which he purchased at Chopal. According to the Petitioner, all these allegations were false, to the knowledge of the Respondent. The result of the election was materially affected because of this pamphlet.

The other pamphlet (Ex. P 3) was purported to be issued by Raja Anand Chand. It was an appeal to the voters to support the Respondent in the election. This appeal was again a false document because the Raja never issued it. According to the Petitioner, the Raja commanded influence in the constituency and his election prospects were highly prejudiced and the result of the election was materially affected.

The Petitioner also contended that in respect of these two pamphlets the provisions contained in Section 127-A of the Act were not complied. In this manner there was a non-compliance with the provisions of the Act and that would be an additional ground for declaring the election void.

On 10th February, 1972, a news bulletin was issued by the Simla Station of the All-India Radio, in the news item known as Pradeshik Samachar (Local News) broadcast, at 7.15 P.M. In this bulletin it was mentioned that the Governor had dismissed the peti-tioner from the post of Deputy Minister. It was also stated that the Chief Minister made his recommendation for dismissal because of charges of undue favour said to be shown by the Petitioner to his relations while holding the office of the Deputy Minister. It was recited that the Petitioner had acted arbitrarily. All these were false statements to the knowledge of the Respondent. All the persons actually broadcasting were his agents. The true fact was that the Petitioner had only resigned from his post of Deputy Minister because he could not see eye to eye with the Chief Minister. Instead of saying so the aforesaid false news bulletin was published as a broadcast of All-India Radio. This was again a corrupt practice committed by the Respondent or his agent for which he could be held responsible. Subsequently, the news item was caught up by the Urdu daily Partap and on 11 th February, 1972, the said information was repeated under a news item. This had further aggravated the situation against the Petitioner.

In the last, the Petitioner contended that the Respondent for exceeded the expenditure, than was shown by him in the account submitted u/s 77 of the Act. That was again a corrupt practice for which the election could be declared void. The Petitioner pointed out definite sums of money which were paid to Ganpat, Krishnoo, Parma Nand, Badda, Dittu, Sukh Ram, Joti, Gokal and Devi Ram. All these amounts were paid for distribution of the pamphlets Ex. P2 and Ex. P3 and for other election work. Similarly the Petitioner contended that a station wagon, a jeep and a car of Himachal Pradesh Transport were engaged by the Respondent at an expense of Rs. 3,000/- at least. This amount was also not shown in the account. On 18th February, 1972, after the Chief Minister had addressed the election meeting at Namhol he was entertained at a lunch given by the Respondent for which he spent Rs. 150/-. This amount too was not shown in the account submitted by the Respondent. After all these amounts are taken care of, the total expenditure would exceed the prescribed limit and that would be a corrupt practice within the meaning of the Act.

On these grounds the Petitioner submitted that the election of the Respondent be declared void and the Respondent be held to have committed corrupt practices within the meaning of Section 123 of the Act and be debarred from contesting the election for a period of six years.

The defence of the Respondent Kuldip Singh is one of total denial. It is averred on his behalf that he was fully qualified to stand in the election. The Jhola Forest contract was in fact transferred by him in favour of his son Pradeep Singh. This he did long before he submitted his momination paper. He ceased to have any interest in that contract. It was denied that Pradeep Singh constituted joint Hindu family with him or that he was not possessed of sufficient funds of his own. In short, according to the Respondent, the contract was not subsisting and as such he was not disqualified. As to the other contract for the construction work, it is stated that the construction of the building in open air jail at Bilaspur was completed in 1967. That contract no longer subsisted on the relevant date. At any rate Section 9A of the Act was either not attracted or if at all attracted it would help the Respondent, because he had fully performed his part of the contract, much before the relevant date and hence no disqualification could be substained against him. The Respondent further pleaded that the contract concerning the open air jail at Bilaspur was not legally executed. Similarly the Jhola Forest contract was also executed against the provisions of Article 299 of the Constitution.

As to the corrupt practices relating to Hari Singh and Uma Dutt, the Respondent denied that these two persons at all visited the Chief Minister on the night between 17th and 18th February, 1972. No such talk took place between the Chief Minister and these two persons. It was also denied that the Chief Minister promised withdrawal of the prosecution case against Hari Singh and others. That case was withdrawn as a result of some independent judicial decision made by the Magistrate himself. The dispensary was never shifted to village Makri and the entire allegation therefore is wrong. Similarly the Respondent denied that Devi Ram or others who were mates employed on Tha-ch-Chokoh-Sakroa road were at all removed from service or were re-employed in the manner stated by the Petitioner. No part was played by Paras Ram, Tehsildar in that connection. Similarly Randhir Singh never held any meeting nor promised re-employment to these mates.

As to the two meetings addressed by Dr. Y.S. Parmar at Chhakoh and Namhol the Respondent admitted that such meetings were held and were also addressed by the Chief Minister. According to him the Chief Minister only stated that the Congress party had done good work in the constituency and that they should vote for the Congress candidate. He never uttered about the keys of the treasury nor did he state that no development work would be done in the constituency unless the Respondent was voted. The entire allegation in this regard, as made by the Petitioner, is incorrect.

The Respondent affirmed that Shrimati Indira Gandhi did visit Bilaspur on 22nd February, 1972. She addressed a public meeting at Bilaspur. According to the Respondent that meeting was organised by the All-India Congress party. In fact Bilaspur town fell outside the constituency of the Respondent. The officials present in such meeting were performing their public duties. There were security arrangements for the Prime Minister. In fact she addressed the meeting as the Prime Minister of India. It was denied that any arrangements were made by the gazetted officers in furtherance of the election prospects of the Respondent. It was also denied that any trucks were deployed by the District Authorities for bringing people to hear that speech of the Prime Minister.

As to the two pamphlets Ex. P 2 and P 3, the Respondent showed ignorance that these were at all distributed within his constituency. He further denied that he got them published or any of his agents got them printed or published in furtherance of his election prospects. He was not aware if the Congress party had approached Raja Anand Chand for issuance of the appeal in favour of the Congress candidates. At any rate the Respondent was not responsible for the two pamphlets. It is averred by the Respondent that the allegations made in the pamphlet Ex. P 2 were substantially true and hence it could not be said that the allegations made therein were false to the knowledge of the Respondent. At any rate the Respondent disowned his responsibility for that pamphlet. The Respondent further contended that Raja Anand Ghand no longer commanded any influence in the constituency. He had left Bilaspur and is residing elsewhere for the last 14 or 15 years. As such he has ceased any contact with the people residing in the constituency. Therefore, said the Respondent, the appeal of the Raja had had absolutely no influence on the voters. At any rate, there is no ground, to hold that the election prospects were materially affected in favour of the Respondent because of these pamphlets.

The Respondent submitted that the news bulletin of 10th February, 1972, which was broadcast in the air might have been the result of a communication received from the government. The Respondent was no longer responsible for the news item. Regarding the expenditure incurred, the Respondent denied that any money was distributed by him to the persons named by the Petitioner. Similarly he did not engage the station wagon or the jeep or the car, nor did he spend Rs. 3,000/- for these vehicles. He had not entertained the Chief Minister at a lunch on 18th February, 1972, after he addressed the election meeting at Namhol. In fact Tulsi Ram, Pradhan of Namhol Panchayat, had met the expenditure of that lunch.

The Respondent not only denied his knowledge for all these alleged corrupt practices but also stated, that firstly all these acts of corrupt practices were not committed by any one and secondly if at all any such act could be stated to have been committed, the same was not done with his consent nor by any one who could be considered his agent. Similarly it could not be stated that the results of the election were materially affected because of any such alleged act of corrupt practice. The Respondent, therefore, submitted that election petition deserved to be dismissed with costs to him.

Upon the pleadings of the parties the following issues were framed for decision:

Issue No. 1: Whether full particulars of any corrupt practice that the Petitioner alleges have not been reproduced in the petition, as provided in Section 83(1) of the Representation of Peoples Act, 1951. If so, its effect? Issue No. 2: Whether the election petition does not contain a concise statement of the material facts on which the election petition relies, as provided in Section 83(1)(a) of the Representation of Peoples Act, 1951. If so, its effect? Issue No. 3: Whether the affidavit submitted along with the petition is not in the prescribed form and is defective. If so its effect? Issue No. 4: Whether the annexures supplied with the petition have been singed and verified as provided in Section 83(2) of the Representation of Peoples Act, 1951. If not, its effect? Issue No. 5: Whether the copies served upon the Respondent are not true copies, as alleged. If so, its effect? Issue No. 6: Whether the amount of security has been deposited in the manner required by Section 117 of the Representation of, Peoples Act, 1951, read with Rule 23 of the rules of this Court. If not, is the petition liable to rejection under Section 86 of the Representation of Peoples Act, 1951? Issue No. 7: Whether a contract as alleged in para 4. a(i) and (ii) entered into by the Respondent in the course of a trade or business with the Government for the supply of goods to or for the execution of any work undertaken by the Government subsisted, and as such the Respondent is deemed disqualified from being chosen as a member of the Legislative Assembly of Himachal Pradesh. Issue No. 8: Whether any or all alleged corrupt practices contained in para 5 of the petition were committed by the Respondent or his agent or by another person with the consent of Respondent within the meaning of Section 123 of the Representation of Peoples Act, 1951. If so, its effect? Issue No. 9: Whether any corrupt practice was committed in the interest of the Respondent by his agent other than his election agent, and whether any noncompliance has been made with the provisions of the Constitution or of the Representation of Peoples Act, 1951 or of any rules or orders made thereunder, as alleged in para 6 of the petition. If so, has the result of the election, in so far as it concerns the Respondent, been material affected? Issue No. 10:To what relief, if any, is the Petitioner entitled? FINDINGS Issues 1-6: These issues being preliminary have already been decided.

Issue No. 7:

The Petitioner has contended that a forest contract namely the Jhola contract which was for the cutting of dry cheel trees, subsisted between the Respondent and the State Government. As such according to the Petitioner, the Respondent was disqualified so long as this contract subsisted, from standing in the election. In reply, the Respondent submitted that a contract of like nature was no doubt entered into by him with the State Government but he had moved an application to the authorities that he would no longer have any interest in the contract. He requested for transfer of his interest in favour of his son Pradeep Singh. The department accepted the request of the Respondent. A new contract was brought into existence between Pradeep Singh and the State Government. In this manner long before the submission of his nomination paper, the Respondent ceased to have any interest in the contract. It is further submitted by the Respondent that the contract was not even complete within the meaning of Article 299 of the Constitution. The Petitioner submitted by way of rejoinder that the contract was transferred benami in the name of Pradeep Singh who formed a joint Hindu family with the Respondent.

The technical objection submitted by the Respondent that the contract did not satisfy the requirement of Article 299 of the Constitution cannot be sustained. It is manifest, both the parties acted in the belief that a valid contract was brought into existence. The State Government itself stood to gain under the contract. It cannot be stated that the contract was void or that it could not be ratified subsequently by the Government. The technical difficulty pointed out by the Respondent is that no one had signed the contract on be-half of the Government on 2-12-1971. (Ex. P. 28/A). This by itself would be of no avail.

In this connection the Petitioners can rely on the observations of their Lordships in Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and Others, That was a case before the Supreme Court under the provisions of the Representation of Peoples Act, 1951, and a plea was set up relating to Article 299 which according to the Respondent made the contract unenforceable. Their Lordships did not uphold the plea and held that the contract nonetheless subsisted and the technical defect did not render it void for the election purposes.

With this evidence on the record it is not difficult to hold that the Jhola contract pleaded by the Petitioner never subsisted on the date the nomination paper was submitted by Kuldip Singh or when he was declared to be a candidate for election. In fact after 5-2-1972 Kuldip Singh had had no connection with this contract. He cannot be held to be disqualified on this account.

It is then also alleged in the petition that the Respondent had entered into a contract in the course of his trade or business with the State Government for the execution of a work which he described as "a building in the open air jail at Bilaspur". It is stated that a dispute regarding fair wages existed in respect of this contract. The fair wages were not paid by the contractor and as such the security was not refunded. In this manner the argument is founded by saying that the building contract had subsisted even on the date of the filing of the nomination and much afterwards. According to the Petitioner, the Respondent was disqualified to stand in the election. From the side of the Respondent there is no denial of any such contract which might have subsisted between him and the State Government. According to the Respondent, no labour dispute existed for the contract pleaded. The construction of a building in the open air jail at Bilaspur was completed in June, 1967 long before the filing of the nomination paper.

In order to attract Section 9A of the Act, the Petitioner had to prove that this contract subsisted in the course of a trade or business and that the contract was with the appropriate government for the execution of any work. It was argued with some vehemence by the learned Counsel for the Respondent that the contract could not be stated to be executed with the appropriate government and as such at the very outset the plea would not be sustainable in favour of the Petitioner. These two contracts for construction of work were admittedly executed in the years 1961 and 1962 when Himachal Pradesh was either apart "C" State or a Union terri-tory. The learned Counsel submitted that in February, 1972 Himachal Pradesh had become a State. As such the contract which was executed in favour of the Central Government could not be stated to have been executed in favour of the State Government. For this the learned Counsel for the Petitioner relied upon Section 37 of the State of Himachal Pradesh Act, 1970. Under this provision, all liabilities, rights and obligations arising out of any contract and relating to the Central Government in connection with the Governance of the Union territory of Himachal Pradesh would be the rights, liabilities and obligations of the State of Himachal Pradesh. Therefore, the learned Counsel concluded that these two contracts although executed when Himachal Pradesh was part ''C State or Union territory, would nonetheless be contracts entered into with the State of Himachal Pradesh. I am not satisfied with this reasoning, because it would be one thing to say that the rights, liabilities and obligations of a contract devolved upon the State of Himachal Pradesh and quite another thing to say that the contract itself was engrafted over the State of Himachal Pradesh. In other words, the contract would nonetheless remain as executed with the Central Government, although its rights, liabilities and obligations would devolve u/s 37 upon the State of Himachal Pradesh.

This argument is strengthened by noticing provisions in pari materia, existing in other enactments. Article 8(1) of the Independence Order, 1947 which dealt with the contract made on behalf of the Governor General-in-Council stood in the following terms which is quoted below excluding other language which is not relevant:

Artical 8(1). Any contract made on behalf of the Governor, General-in-Council before the appointed day shall, as from that day,-

(a) If the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor General-in-Council; and (b) in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor General-in-Council....

Section 87 and 101 of the States Re-organization Act, 1956 also provide as below: (language not relevant excluded).

Contracts.--(1) Where before the appointed day an existing State has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power-

(a) If there be only one successor State, of that State.

Contracts.--(1) Any contract made before the appointed day by the Union in the exercise of its executive power for purposes of the Governance of an existing State shall, as from that day, be deemed to have been made in the exercise of the executive power of the successor State....

Section 58(2)(c) of the Government of Union Territories Act, 1963 need also be noticed which excluding the portion not relevant reads as below:

58(2)(c) All debts,, obligations and liabilities incurred, all contracts entered into.... for the Territorial Council before such repeal shall be deemed to have been incurred, entered into or engaged to be done in the exercise of the executive power of the Union.....

Section 59 of the Punjab Re-organisation Act, 1966 also dealt with the contracts and laid down as below: (Language not relevant excluded)

59(1) Where before the appointed day the existing State of punjab has made any contract in the exercise of its executive power for any purposes of the State, that contract shall be deemed to have been made in the exercise of the executive power....

All these provisions of the various statutes clearly lay down that the contracts would be deemed to have been made by the successor government. In other words, the successor Government was engrafted as one of the party in the contract. In that language of the statute it was not difficult to infer that the contract itself was deemed to have been executed by the successor Government. Such is clearly not the position u/s 37 of the Himachal Pradesh State Act, 1970. There, the rights, liabilities and obligations of the contract have only devolved upon the State and not the contract itself.

If authority is needed for this proposition, reference can be made to Inayatullah Khan Vs. Diwanchand Mahajan and Others, That case related to election and the expression "appropriate government" was considered with reference to Section 101 of the States Re-organisation Act, 1956. It was considered that by a fiction u/s 101 the contract of one government became the contract of the successor government. As such the said contract could be deemed to be executed with the appropriate government. The contract was novated statutorily to substitute for the previous state and novation came to be statutorily engrafted upon the contract which stood in favour of the successor government. As the position u/s 37 of the Himachal Pradesh State Act, 1970, is quite different, the contract entered into with the Central Government cannot be considered to have been entered into with the State Government. As I have already pointed out the rights, and obligations under the contract might have devolved upon the State of Himachal Pradesh.

In this view of the matter, I have every reason to conclude that the two contracts for construction of works did not exist as executed in favour of the State of Himachal Pradesh. These ''contracts were entered into with the Central Government. As such on this short ground, the Respondent cannot be said to be disqualified u/s 9A because no contract for execution of work had subsisted between him and the State of Hima-chal Pradesh.

32, Apart from the position stated above which strikes at the root of the plea, the case is not even otherwise made out on merit and since the Petitioner has raised several questions of law and fact relating thereto, I think it worthwhile to consider the case in its, other aspects as well. In this regard, the contention of the Respondent has been that the breach of the contract was accepted by the government and the obligation lay upon them to pay fair wages out of the money lying with them and due to the contractor and as such, it cannot be stated that the contract for the execution of work as such had subsisted. The Respondent further contended that the labour dispute started in 1964 and continued to exist up to June, 1972. All along neither the government took any step to realise the amount due from the contractor nor the latter was informed to pay at any stage of the proceedings. A period of 8 years was more than sufficient to infer that the condition in the contract relating to fair wages, was abandoned under the conduct of the parties. This abandonment took place before February, 1972 when the nomination paper was filed. Therefore, no con-tract could be said to have subsisted. It is also submitted on behalf of the Respondent that the award given by the Labour Inspector was itself reduced so as to make it conform with the amount already lying with the department and due for payment to the contractor. By this conduct on the part of the Government the novation of the contract relating to fair wage condition was proved and the entire contract was satisfied although it was posted in the books of the government only in June, 1972-

From these contentions made by the Respondent, the inference drawn is that under the Explanation to Section 9A, the contract was fully performed by the Respondent and what remained to be performed was the part to be performed by the government for which the Respondent was not responsible. Further the entire contract was fully performed by applying the principle of abandonment which related to the fair wage condition incorporated in the contract. Therefore, it was contended that under the Explanation to Section 9A the contract itself could not be deemed to be subsisting and as such the Respondent was not disqualified to stand in the election.

It would be instructive at this stage to notice a few authorities. The three stages in the life of a contract are very aptly pointed out in Satyendra Kumar Das v. Chairman of the Municipal Commissioners of Dacca and Ots. AIR. 1931 Gal. 288. There is first the making of the contract, secondly the performance of the contract and lastly the discharge of the contract. In the instant case, there is no dispute as to the making of the contract. It is of course correct to say that discharge can be by performance of contract. There is a dispute as to that. It is submitted by the Respondent that he had fully performed his part of the contract in 1967 and there-after it was for the government to have performed its part of the contract. In H.R. Annamalai Mudaliar v. Devraja Urs and Ors. AIR. 1968 Mys 140 it has been rightly pointed out that the explanation provided to Section 9A of the Act refers to a case of discharge of contract by performance, that is where the contract is fully performed by one party. All other cases not covered by the Explanation come within the scope of the disqualification u/s 9A. In Konappa Rudruppa Kadgouda v. Vishwanath Reddy and Anr. AIR. 1969 S.C. 447, their Lordships pointed out the circumstances in which a contract can be stated to be fully performed. It was pointed out that a right of a person to stand for election is a valuable right just as a right of a person to vote. As such a sensible view of Section 9A will have to be taken and "the law is not so strict as all that". The observations of course related to the facts and circumstances of that case. Still a guidance can be taken from the decision. A very strict and technical view of explanation to Section 9A may not be taken. In the Instant case the contractor had performed his part of the contract. The breach was committed and it was for the government to pay back the labour out of the money due to the contractor. This they did, although delayed the matter untill June, 1972. In such circumstan-ces, the contract cannot be stated to be subsisting. In Atma Dass v. Suriya Prasad (1969 SCC . 616) their Lordships were considering a case in which a plea under Explanation to Section 9A was sustained. It was held that failure to settle the respective claims of government for a number of years, (in that case 6 years) does not evidence an intention to keep the original contract alive or susbsisting on the nomination date for the election. The silence is evidence of acquiescence in the "abandonment of the contract" and not of a subisting contract. Similarly, in the instant case the least that can be stated in favour of the Respondent is that the settlement of the claim regarding fair wages to the labour was left pending for no fault of his up to June, 1972. The inference can be of the abandonment of the contract. This case of the Supreme Court was noticed in Anokh Singh v. Surinder Singh and Ors. ILR 1971 P&H. 585. That case also related to Section 9A and dealt with the disqualification stated to be incurred by a candidate. It was held that a candidate gets the benefit of the Explanation if the contract entered into by him has been fully perform and all that remains is the discharge of the corresponding obligation of the government under the terms of the contract. The contractor having done all that would be required of him, would be deemed to have fully performed his part and merely because there was a subsisting claim of the government, the contract itself would not be deemed to be subsisting within the meaning of Section 9A. This is all the more true in the case of a contract for execution of work because what has remained to be performed is not the execution of work but some ancillary claim made by the government relating thereto. The section itself prohibits a subsisting contract for execution of work and nothing more or less. The parliament appears to have felt that the state of law pointed out in C. Vithaldas Jasani v. Moreshwar Prasad and Ors. (Supra) would have disentitled any candidate who had once entered into a contract of any of the two specific kinds with the government to become a member of the Parliament or of any State Legislature for any length of time till the government chose to make final payment to him and that disputes arising out of the contractor''s claim against the government or vice-versa involving possible litigation might have resulted in taking away from certain electors their valuable right of standing in the elections for a major part of their life in spite of the contract having been fully performed by the contractor. In order to meet such a situation the Explanation to Section 9A was appended. If a loose interpretation is given to the section, a mischief would be perpetrated and despite the Explanation the candidate for no fault of his would be debarred from contesting the elections. This cannot be permitted, otherwise the very purpose of the amendment made by Parliament would be defeated. In my opinion, the present case falls exactly within the ambit of the Explanation. Pollock and Mulla in their INDIAN CONTRACT AND SPECIFIC RELIEF ACT (9th Ed.) page 449 dealt with the question of discharge of a contract. The observation made was that where an ino-rdinate length of time has elapsed during which neither party has attempted to perform or called upon the other to perform the contract between them, it may be in-ferred that the contract has been abandoned--"the matter is off altogether". Therefore, in the situation made out in the present case, the contract was off al-together up to February, 1972. The mere fact that a casual letter was despatched by the General Secretary of the Labour Union to the Labour Inspector or the Executive Engineer or vice-versa would be of no material consequence. It has been established that neither the government performed its part of the contract nor asked the contractor to perform it. As evident, the main contract for execution of work was long fulfil-led. The dispute regarding fair wages although arising out of the contract cannot be considered to be itself a contract for execution of work said to be subsisting on the date of the filing of nomination paper.

I have already pointed out that under the fair wags clause of the agreement it was the duty of the contractor to make payment to the labourers. It may be that the Respondent came to know of the claim which was set up by the labourers right from 1964. With that idea he did not recover his security and other dues from the government. It is also manifest from the condition Clause 19B(a) of the agreement that the Executive Engineer or the Sub-Divisional Officer had the right to deduct from the moneys due to the contractor any sum required to make good the fair wages due to the labourers. This was certainly an act to be performed by the Executive Engineer or the Sub-Divisional Officer. The contractor was not required to perform this act in any manner. The mere fact that the contractor did not write to the Executive Engineer or the Sub-Divisional Officer that he was leaving the security deposit to make good the fair wages, would not go to prove that he had refused such payment which was to be made to the labour. I have already pointed out that the claim itself was made by the labour from time to time without any consistency. The award was given behind the back of the contractor. No evidence whatsoever was recorded to justify such an award. Subsequently, the award itself was reduced so as to make it conform with the amount lying with the department. Therefore, everything was one sided and the performance was to be made by the government which they ultimately did in June, 1972. It cannot be stated by any stretch of imagination that the contractor had to perform any part of the contract, in the circumstances. In my opinion, therefore, the Explanation of Section 9A fully applied and the contract did not subsist. The Respondent had fully performed his part and the breach regarding fair wage was accepted by the government. It was then for the government to have performed its own part regarding fair wage which they ultimately did in June 1972. Even if it is stated that the dispute regarding fair wage was subsisting on the date of the filing of the nomination paper, that dispute by itself would not constitute a contract for execution of work and hence Section 9A was not attracted. In the alternative, it can also be inferred that the contract itself was abandoned by the conduct of respective parties for having left the fair wage condition without performance for a considerable period of time, in this case near about 8 years. Therefore the contract never subsisted on the date of the filing of the nomination paper. The reduction of the wage award was novation of the condition regarding fair wage and was deemed satisfied in June 1972. There is no indication from the record that the matter was kept alive except the letter (Ex. PW. 29/R), dated 2-12-1972 which was endorsed to the contractor-Respondent which too was not received by him. There, the matter ended. No effort whatsoever was made either by the labourers themselves or by the government to lay a further claim upon the contractor.

I can, therefore, conclude that the Respondent was not disqualified from standing in the election.

The issue is decided in favour of the Respondent.

Issues No. 8 and 9:

The Petitioner has given details of such corrupt practices and his case is that either the Respondent himself committed them or his agents committed them with his consent. It is admitted that the Respondent had no election agent. If the corrupt practices were committed by the agent of the Respondent, other than his election agent, u/s 100(1)(d)(ii) the Petitioner had to prove material effect on the election in favour of the returned candidate before the election could be declared void. The Petitioner has also alleged non-compliance with the provisions of the Act and its material effect on the election has also to be proved. A plea in an election petition that a candidate or his agent is guilty of corrupt practice is a plea relating to a grave charge. It is manifest that if this charge is proved, not only the election is invalidated but the Respondent is also disqualified for standing in the election. A charge of this nature must be established by clear and cogent evidence by those who seek to prove it. Mere preponderance of probability in the matter of evidence will not be sufficient. He has to satisfy that the conduct attributed to the offender is proved by evidence which is clear and cogent and almost clinching to the issue. In other words, the charge must be proved beyond reasonable doubt. This view can be substantiated by a member of authorities. See Mahant Shero Nath v. Choudhary Ranbir Singh (Unreported Judgments S.C. 1970 Vol. II, 762), and Lalroukung v. Maokho Thangjom Unreported Judgments S.C. 1969 (Vol. I), 12. A similar view was taken in Ghasi Ram Vs. Dal Singh and Others, . It would then be convenient to take up individual items of corrupt practice as alleged by the Petitioner.

Now, I shall advert to the alleged instance of undue influence within the meaning of Section 123(2) of the Act. It has been pleaded that Dr. Parmar, the Chif Minister had arrived at Bilaspur on the night between 17th and 18th February, 1972. He addressed a meeting at Chakoh at 10 A.M. on 18-2-1972. Thereafter, he addressed another election meeting at Namhol at 2 P.M. on the same day. In the two meetings, according to the Petitioner, the Chief Minister stated that he was ruling the government and was possessed of the keys of the treasury and that he would give money for development work in the constituency provided the Congress candidate was returned successful in the election. According to the Petitioner this would amount to undue influence within the meaning of the Act. The Respondent admits that the two election meetings did take place and were addressed by the Chief Minister. However, he denied that any speech was given by the Chief Minister. The Respondent also stated that the two meetings were organised by the District Congress Committee and that Dr. Parmar could not be considered to be his agent for the purpose of election work. In fact the tour was organised by the Chief Minister in support of all the Congress candidates. The tour programme (Ex. D. 21) was issued by the Pradesh Congress Committee. As a political leader, the Chief Minister was undertaking an extensive tour for the success of his party. This he could bonafide do and no exception can be taken to his conduct.

With this evidence on the record it is not proved that Dr. Parmar at all stated in the manner suggested by the Petitioner. Whatever he is supposed to have stated in the two election meetings appears to be quite justified and no exception could be taken to that. While [addressing such meetings, he could not be considered to be an agent of the Respondent.

It is, therefore, evident that the Petitioner has also failed to prove his case of undue influence with reference to Namhol meeting. Whatever he alleged regarding the speech delivered by Dr. Parmar is not borne out from the record.

As regards the visit of Shrimati Indira Gandhi, it was pleaded that the Respondent received her and garlanded her, that he was introduced to the public from the dais of the meeting by the Chief Minister in the presence of the Prime Minister, that he remained seated over the dais while the speech was being delivered by the Prime Minister and that the Congress symbol was spread out below the dais to give the impression that the Prime Minister was addressing the election meeting in favour of the Congress. It is further pleaded on behalf of the Petitioner that a heli pad was constructed at a considerable cost for the landing of the Prime Minister. Similar arrangements were made for dais etc., and purchases were made from the market especially of khadi. The government officials were present and one Chattar Singh, Dy. Director Public Relations, was even announcing from the stage that the Prime Minister was to arrive and the people should wait for her. It is further pleaded that the Respondent himself made the announcement in the village that the Prime Minister was to arrive and that she was to address the meeting on 22nd February, 1972 at Bilaspur. Another specific allegation has been made that people were brought to attend that meeting in government trucks and thus assistance of the government servants was obtained.

It is evident that all these pleas make a reference to Sub-clauses (2) and (7) of Section 123 of the Act. According to the Petitioner, the corrupt practice of undue influence by the presence of the Chief Minister and the Prime Minister was committed and assistance of government servants of gazetted rank was obtained and procured in furtherance of the election prospects of the Respondent.

The Congress pamphlets which indicated the visit of the Prime Minister and also contained an appeal to voters are Ex. P. 15, 19 and 20. No exception could be taken to these pamphlets because Shrimati Indira Gandhi belonged to the Congress party and as a political leader she was entitled to issue the appeal to the voters. Ex. P. 18 is a cash memo, which proves that some khadi was purchased by the District authorities and perhaps the khadi cloth was used for setting up the stage. When the Prime Minister was visiting, some arrangement was bound to be made and the District authorities were required to make that arrangement. A solitary case of purchase of khadi, in my opinion, will not amount to such an assistance which would invalidate the election. The District authorities were not agents of the respondeat. The latter could not be held responsible for this expenditure made by the District authorities.

In order to succeed in his plea under subsections (2) and (7) of Section 123 of the Act, when obviously the Respondent did not invite Dr. Parmar or Shrimati Gandhi to address these meetings,, the Petitioner will have to prove that these two political leaders were the agents of the Respondent. There is absolutely. no evidence that the Respondent obtained or procured the assistance of government servants. Similarly it cannot be said that the mere presence of the Chief Minister or the Prime Minister caused and undue influence upon the voters. There is not even an iota of evidence to indicate that any elector was influenced by these meetings so that he voted in favour of Kuldip Singh, though, he formerly intended to vote for Sankhyan. Therefore, neither the Chief Minister nor the Prime Minister were the agents of the Respondent, nor any undue influence was caused by them in the furtherance of the prospects of the Respondent. It is abundantly clear that Dr. Parmar as well as Shrimati Gandhi never ceased to hold the offices of the Chief Minister of the State and Prime Minister of India respectively. It was difficult to say without support of evidence, that these political leaders visited Bilaspur exclusively to address election meetings. Their official capacities cannot be separate from their political capacities. They might have done some official work for, the denial of which, no evidence has been procured by the Petitioner. It is manifest political leaders are not debarred from addressing public meetings in furtherance of the case of their candidates. While holding public offices, they are also required to carry along with them their paraphernalia which necessarily means persons in government service. The candidate cannot be held to be guilty of corrupt practice merely because the Chief Minister or the Prime Minister addressed public meetings whereat they canvassed support of his candidature. Though public servants and ministerial officers are not to take part in public affairs or participate in elections, that interdict, does not apply to Ministers of government. The Ministers, however, are not entitled to misuse their official position in any manner in furtherance of the election prospects of the candidate of their party or otherwise act in any manner which is not consistent with the Act. Besides all that, in my opinion, they are within the bounds of their duties to go and address public meetings. One cannot deny that the essential basis of the working of a responsible government is the existence of the party system. It must be remembered that in our country there is a responsible system of government, both at the Centre and in the States. The selection of candidates for the election and education of the electorate are the main functions which a party has to perform so that it is returned to power. Public meetings are a very important part of its organization. Therefore, if the Ministers address public meetings, there is no harm so long as they observe the conditions laid down in the Act.

A few cases need be noticed at this stage. In Triloki Singh v. Shivrajwati Nehru and Ors. 16 E.L.R. 234, the right to canvass by a Minister was conceded as they are leaders of the political party which had a majority in the Legislature and which is to maintain that majority in order to function effectively. Just as they have a right to vote and to stand as a candidate they also have a right to canvass for themselves and for the other candidates set up by their party. If they ask the electors not to vote for any other candidate than their own party candidate, they cannot be said to interfere with the free exercise of the electoral rights of voters. In this case nothing further seems to have been done by the Chief Minister as well as the Prime Minister. In Triloki Math v. Shivrajwati Nehru (supra) it is also held that a Minister has not only a right to canvass for the candidate supported by his party but he can canvass without divesting himself of the paraphernalia of his office while so canvassing. The mere fact that the Ministers went to the election meetings in the State cars flying national flag or were accompanied by their orderlies or shadows cannot be held to amount to their using undue influence over the voters within the meaning of Clause (2) of Section 123. In Biresh Misra v. Ram Nath Sharma and Ors. 17 E.L.R. 243 , the words "obtain" and "procure" used in Section 123(7) have been explained. These words cannot purpose or effort behind the action of the candidate and do not include passive receipt of assistance. There is absolutely no evidence that Kuldip Singh obtained or procured the assistance of the Chief Minister or the Prime Minister or other government officials in furtherance of his election prospects. If he consented to go to the meeting and even welcomed the Prime Minister, that would not amount to obtaining or procuring assistance from government servants. In Moti Lal Vs. Mangla Prasad and Others, the word "obtain" in Section 123(7) was held to connote purpose or effort behind the action of the candidate. Therefore, a mere passive receipt of assistance without the candidate being even conscious of the fact that the assistance has been rendered, will not be sufficient. In Dalchand Jain v. Maryan Shankar Trivedi and Anr. 1969 S.CC 685, their Lordships were considering a case u/s 123 and referred to a publication for which the candidate had not raised any objection. The observation was that mere omission to raise any objection does not establish his consent. Extending the analogy further, I can hold in this case, that mere omission on the part of Kuldip Singh to object to the visit of the Chief Minister or the Prime Minister would not amount to his consent for their visit. This would be material on the question of agency.

There is no evidence that any elector was influenced by the speeches delivered by the Chief Minister or the Prime Minister. There can be no presumption in this regard. Some evidence could be procured to indicate that so many voters did not vote in favour of Sankhyan because of these speeches or because of any conduct displayed by the Respondent in the meeting addressed by the Prime Minister. As to the trucks, I have already indicated that there is hardly any evidence worth the name. As such people were not taken to the meeting in government trucks.

The result is that the corrupt practices under sub-sections (2) and (7) of Section 123 of the Act in connection with the meetings addressed by the Chief Minister or the Prime Minister were not made out.

The Petitioner referred to election pamphlets or posters marked Ex. P. 2 and P. 3 and canvassed that a corrupt practice u/s 123(4) of the Act was committed. Besides, he also pleaded that Section 127A was also not complied with, inasmuch as a declaration as to the identity of the publisher thereof sighed by him and attested by two persons to whom he is personally known was not delivered by him to the printer in duplicate. As a result of this non-compliance with the provisions of the Act, according to the Petitioner, a ground was made out u/s 100(d)(iv) and the result of the election in favour of the Respondent was materially affected.

It is, therefore, evident that the persons who printed or published the poster (Ex.. P. 2) were not the agents of the Respondent. It is also borne out by evidence that whatever was stated in this poster was not false and at any rate if it is considered that the Respondent got the poster published it cannot be stated that he never believed the allegations made in the poster to be false or did not believe them to be true, within the meaning of Section 123(4). There is absolutely no evidence that the poster was reasonably calculated to prejudice the prospects of Sankhyan''s election. Regarding the publication, it is not proved that the posters (Ex. ] 2 and P. 3) were at all published at the instance of the Respondent. It may be that this poster (Ex. P. 2) was surreptitiously distribued by some agency inimical to Sankhyan and obviously the Respondent could not be held responsible for such agency. It may be true to contend that the posters were printed for publicity, otherwise these would not have been obtained from the press. The crux of the matter would lie in the responsibility that can be fixed upon the Respondent or his agents. But such a responsibility cannot be fixed as is clear from the evidence.

Now I shall deal with the poster (Ex. P. 3).This is an appeal made by Raja Anand Chand of Bilaspur in favour of the Congress candidates includidng the Respondent. The appeal was undoubtedly got printed by the H.P.C.C and the printers were Himdeep Printers and Publishers (Simla).

It is not difficult to conclude with this evidence that if at all the Congress organization got printed the appeal (Ex. P 3), they were not the agents of the Respondent. Similarly, Himdeep Printers were not his agents. The witnesses regarding the publicity could not be believed to be starting the truth. Since the Raja himself has denied the issuance of the appeal, it may be stated that the appeal itself was false and hence it was a false statement. At the same time the conduct of the Raja indicates that the Congress had no reason to consider that the appeal was false and it could not be stated that the organization either believed it to be false or did not believe it to be true. In 1967, a similar appeal was issued by the Raja. In the second letter written by Shrimati Dang, it was specifically written that a presumption would be drawn that the Raja had no objection to the issuance of the appeal if no reply was received. Therefore, it could not be stated that Shrimati Dang either believed the appeal to be false or did not believe it to be true. Above all, the Respondent was not in any manner responsible for the printing or publication of the appeal. There is overwhelming evidence to prove that the Raja lost his influence in the District. He lives out of the District for the last 14 or 15 years. He himself lost the election in 1957. His daughter lost in 1962. It may be that some of his candidates won the election in 1957. There is absolutely no evidence that any voter was influenced by such an appeal in favour of Kuldip Singh. Therefore, there is hardly any evidence to conclude that the appeal was reasonably calculated to prejudice the prospects of the Petitioner.

There was a controversy at the bar as to whether the appeal (Ex. P.3) at all related to the candidature of the Respondent, and as such was covered u/s 123(4). In Sudhir Laxman Hendre Vs. Shripat Amrit Dange and Others, the expression "candidature" was held to have reference to the qualification of the candidate for being nominted as such in a constituency and to his being so nominated in fact. In Kanhaiyalal Tiwari v. Shyam Sunder Naryan Mushran 15 E.L.R. 285 , the word "candidature" was considered norrower in its connotation than "candidate". It means the State of being a candidate and a statement relating to a candidate need not necessarily relate to his candidature. This view was followed in Smt. Sarla Devi Vs. Birendra Singh and Others, and in Salra Devi Pathak v. Birendra Singh and Ors. 20 E.L.R. 275. In all these cases, it has been held that the word "candidature" means the state of being a candidate and as such a candidate himself must suffer by the statement or aspersion. The word "candidature" has been used in conjunction with the word "withdrawal" which is decidedly a stage before the person becomes a candidate as such. Even keeping regard to these rulings, the poster (Ex. P.3) did relate to the candidature of Kuldip Singh. The appeal was no doubt issued at a stage when he had become a candidate but it nonetheless referred to his candidature, he being set up by the Raja to contest the election. I cannot, therefore, persuade himself to agree with the learned Counsel for the Respondent that the appeal is not covered u/s 123(4).

The application of Section 123(4) has been a subject to several decisions of the Supreme Court. The latest are Raghu Nath Singh Vs. Krishna Chandra Sharma, and Mangi Lal Vs. K.R. Pawar and Another, . Where it is not proved that the impugned statement was false and was either believed to be false or not believed to be true by the returned candidates and his agents, the statement does not come within the mischief of Section 123(4). In Dev Kanta Barooah Vs. Golok Chandra Baruah and Others, a statement although true yet a little exaggerated was considered with reference to Section 123(4). It was held that the section is not attracted. In Guruji Shrihari Baliram Jivatode Vs. Vithalrao and Others, the expression "calculated" used in Section 123(4) was considered. It was held that the word "calculated" means design and denotes more than mere likelihood and imports the design to affect voters. Such a design even by implication cannot be inferred from the evidence. The Petitioner never relied upon a likelihood of some harm done to him in the election. In Sheopat Singh Vs. Ram Pratap, the element of mens rea was considered necessary ingredient to attract Section 123(4). In the facts made out in the present case such mens rea cannot be inferred against the Respondent. I, therefore, consider myself on firmer footing when I conclude that a corrupt practice u/s 123(4) is not proved against the Respondent.

It was also contended on behalf of the Petitioner that compliance of Section 127A was not made. It is proved that the Respondent cannot be held responsible for the posters (Ex. P.2 and P.3). If non-compliance of that section was committed, it was not done by the Respondent. Apart from that, any material effect on the election was not proved for such non-compliance. It has been stated that either a declaration or an attestation by two witnesses contemplated u/s 127A for these posters was not available. In what manner the election was materially affected because of these irregularities is not explained. Therefore, such a non-compliance of a provision of the Act was immaterial for the election. As such the ground is not sustainable.

The last plea of the Petitioner pertains to the news bulletin which was broadcast from the All-India Radio, Simla on 10-2-1972 at 7.15 P.M. in their Pradcshik Samachar. It is stated that in that news bulletin it was broadcast that Sankhyan had been dismissed from the post of Deputy Minister and that the dismissal was due to certain charges proved against him. It was also stated that undue favour was shown by Sankhyan to his relations and he had also acted arbitrarily while performing the duties of the Deputy Minister. According to Sankhyan, the statement was false and related to his personal character and conduct. It was further stated by him that on 11-2-1972 the Urdu daily ''Partap'' also published that news and this. further aggravated the situation. On this account, according to the Petitioner, he was disreputed and his election result was materially affected.

The Respondent rightly pointed out that the Chief Minister or the Governor of the State who removed Sankhyan from his office were not his agents. Similarly, he pointed out that the All-India Radio was also not his agent. How could the Respondent be held responsible for the news item which was definitely based on a communica-tion received in the office of the All-India Radio from the government sources? This plea of the Respondent is easily sustainable and no exception could be taken to this plea.

Therefore, it is neither established that the news bulletin was false nor that it affected the personal character or conduct or even the candidature of Sankhyan. It could not be stated that the news item was reasonably calculated to prejudice the election prospects of Sankhyan. Therefore, the plea u/s 123(4) in respect of this news bulletin is not proved. In this manner, I have dealt with all the pleas of corrupt practices raised by the Petitioner and in my opinion, none of the pleas is established in favour of the Petitioner. Similarly, it is not proved that any provision of the Constitution or of the Act was not complied with so that the election prospects of the Petitioner were materially affected. These issues are, therefore, decided against the Petitioner.

Issue No. 10.

The upshot of all that I have stated above is that the Petitioner is not entitled to any relief. The election of the Respondent cannot be declared to be void. Nor can it be stated that the Respondent or any other person committed any act of corrupt practice within the meaning of Section 123 of the Act.

ORDER

The petition is dismissed. The Respondent shall get Rs. 2,500/- as costs from the Petitioner.

A substance of this decision shall immediately be intimated to the Election Commission and to the Speaker of the Legislative Assembly of Himachal Pradesh. Thereafter, an authenticated copy of the decision shall be sent to the Election Commission.