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PETITIONER: SHAIK MOHAMMAD UMAR SAHEB

       Vs.

RESPONDENT: KALASKAR HASHAM KARIMSAB & ORS.

DATE OF JUDGMENT: 11/03/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ)

CITATION:  1970 AIR   61            1969 SCR  (3) 966  1969 SCC  (1) 741

ACT: Election  petition-Maharashtra Municipalities Act  1965,  s. 21(7)--Trial   Court   rejecting   application   to   summon petitioner’s  witnesses-Thereafter summoning them  as  court witnesses-Whether  e  powered to do so  Court  not  training separate  clear  cut  issue for  each  charge-Whether  trial vitiated. Constitution of India Arts. 226 and 227-Jurisdiction of High Court Whether can reappreciate evidence.

HEADNOTE: The first respondent challenged the appellant’s election  to the  Sangli  City Municipality held in June 1967  under  the Maharashtra  Municipalities Act, 1965.  It was alleged  that the  respondent  had  published  and  circulated   pamphlets containing defamatory statements against the respondent  and in particular instigating Muslim’ voters to vote against him by arousing their religious sentiments.  At the trial of the petition  the  respondents  applied to  have  two  witnesses examined  but  the  Trial Judge  rejected  the  application, Later,  however, the same two witnesses were called  by  the trial judge as court witnesses.  The Trial Court allowed the petition and disqualified the appellant from being a  member of a Municipality for five years. A  petition under Arts. 226 and 227 of the  Constitution  by the appellant was rejected in limine by the High Court. In  appeal to this Court it was contended inter alia by  the appellant  (i) that the trial court was wrong in calling  as court witnesses the same two witnesses who had been cited as the  respondent’s witnesses and having earlier rejected  the respondent’s application to call them; (ii) on the  evidence the  trial court’s finding was not justifiable;  (iii)  that the  result of the election was published in the Gazette  on the 8th June as well as 151th June but the limitation of  10 days ran from 8th June and the petition was therefore  time- barred;  (iv) the first issue which was decided against  the appellant was confusing and misleading whereby the appellant had  been  denied a fair trial; (v) the order of  the  Judge disqualifying  the appellant for a period of five years  was unduly harsh. HELD:     Dismissing  the  appeal : (i) Although  the  trial

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court’s  earlier order refusing to issue summons to the  two witnesses  was  not  justifiable,’ under  s.  21(7)  of  the Maharashtra  Municipalities  Act, 1965, the Trial  Judge  is given  powers  wider than those given by the Code  of  Civil Procedure under Order 16, Rule 14, as the section does  not prescribe  any pre-requisite to the examination of a  person as  a  court  witness  as envisaged by  the  Code  of  Civil Procedure.   The trial Judge therefore had  jurisdiction  to call  the two persons as witnesses under the  provisions  of the Act. [972 D] R.   M.  Seshadri v. G. Vasanta Pai, [1969] 2  S.C.R.  1019, referred to. (ii) On  the  evidence, no exception could be taken  to  the trial Judge deciding the issue against the appellant on  the facts  and circumstances of the case.  It could not be  said that  there  was no evidence on which the Judge  could  have come to that conclusion.  When the trial Judge accepted 967 the  evidence  with  regard  to  the  distribution  of   the pamphlets  by the appellant, the High Court, which  was  not hearing an appeal, could not be expected to take a different view  in exercising jurisdiction under Arts. 226 and 227  of the Constitution and there was no reason shown to this Court to interfere with the order of the High Court. [975 A] (iii)  The  appellant could have set up  the  first  Gazette publication  as the one fixing the period of  limitation  in which case the trial.  Judge would have been required to  go into  the matter.  But the appellant had  precluded  himself from  doing  so  by  his  unconditional  acceptance  of  the statement  in the petition that the result was published  on 15th June. 1967.     There  was no error apparent on the face of  the  record before the High Court and consequently he jurisdiction under Art.  226 of the Constitution could not have been  exercised on  the  facts  of  the  case by the  issue  of  a  writ  of certiorari.   Neither  could the High Court  set  aside  the order of the trial court under Art. 227 of the  Constitution under  which  the High Court’s power of  superintendence  is confined to seeing that the trial court had not transgressed the limits imposed by the Act.  On the facts of the case the High  Court  was not called upon to go into  this  question. [974 C-D] (iv) It  could not be concluded that because of the want  of preciseness  in  the  issues  framed  the  whole  trial  was vitiated.   The  appellant knew the points he had  to  meet. Although the evidence about the disribution of the pamphlets was  not beyond reproach, it was not for the High  Court  to take  the  view that the order ought to be  quashed  on  the ground that there was no evidence. [974 F] (v)  The  allegations  of  corrupt  practices  against   the appellant  were  of  a serious nature and if  be  was  found guilty, the period of five years’ disqualification could not be considered inappropriate.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2322 of 1968.     Appeal by special leave from the order dated October  4, 1968 of the Bombay High Court in Special Civil  Application, No. 2053 of 1968. N.   N. Keswani, for the appellant. R.   B. Datar and S. N. Prasad, for respondent No. 1. S.   P. Nayar, for respondents Nos. 2 to 4. The Judgment of the Court was delivered by

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Mitter, J. This is an appeal by special leave from an  order of the Bombay High Court dismissing in limine an application under Arts. 226 and 227 of the Constitution and refusing  to quash  the  judgment  and order of the  Assistant  Judge  at Sangli  rendered in Election Petition No. 10 of  1967.   The facts are as follows.      On  June 3, 1967 election of councillors to the  Sangli City   Municipality   was   held   under   the   Maharashtra Municipalities  Act,  1965 (hereinafter referred to  as  the Act.  The counting 968 of  votes took place with regard to Ward No. 25 on  June  4, 1967.  According to the election petition, the results  were published  in the Official Gazette on June 15, 1967 and  the petition was filed on June 24, 1967.  The petitioner who was himself  a  candidate  for  election  from  the  said   ward challenged  the  election  of the  appellant  before  us  on several  grounds set forth in paragraph 3 of  the  petition. The first of these was to the effect that the appellant bad, with  the  help  of his  supporters,  published  an  undated pamphlet and circulated the same on a large scale among  the voters  in Ward No. 25 and that the said pamphlet  contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and  in particular instigating the Muslim voters to vote against him by  arousing  their religious sentiments.   Another  similar ground  based on a defamatory pamphlet dated 30th  May  1967 was  urged in the petition.  Charges of  terrorising  voters and  securing votes by false personation were also  levelled therein.   Statements  were made in the  petition  that  the appellant’s  name  as councillor had been  declared  in  the Official Gazette on June 15, 1967 and the petitioner’s cause of  action bad arisen on that date.  The first of these  was expressly  accepted as correct in the written  statement  of the  appellant  and the second remained  unchallenged.   The appellant  however repelled the charges mentioned above  and denied that he was responsible for the publication of any of the impugned pamphlets. Of  the four issues framed at the hearing of  the  petition, the first was :               "whether  the petitioner proved that  opponent               No. 1 who was elected as Municipal  Councillor               for  Ward No. 25 had used malpractices at  the               time  at  the election by  arousing  religious               sentiments of the voters and making defamatory               statements    against   the   petitioner    by               publishing pamphlets?" The  petitioner gave evidence himself about the  allegations in  the petition to substantiate the charges raised by  him. The  appellant  examined  himself  to  contradict  the  said evidence.  It appears that the petitioner had in the list of witnesses  filed by him, mentioned the name of two  persons, Hakim  Abdul Rahiman Shaikh and Gopal Chintaman Ghugare  and that  these  two persons had attended the court  on  certain days  when they were not examined.  On August 21,  1968  the petitioner made an application before the Judge for  issuing summons  on  these  two persons as his  witnesses,  but  the learned  Judge rejected that application.   The  appellant’s case was closed on the same day and the arguments started on August  22,  1968.   On that date the  court  adjourned  the hearing of the case to August 24, 1968 for 969       recording  the  evidence  of these  two  witnesses  in respect of whom an application had been made by the election petitioner  on  the previous day.  The order  Ex.  36  dated

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August  22,  1968 tends to show that the learned  Judge  was persuaded  to  do  so  by  the  mere  fact  that  they  were Government  servants.  He however recorded that the ends  of justice  required that these witnesses should  be  examined. He  fixed August 24, 1968 for further hearing of the  matter and  directed the issue of summonses to these  two  persons. These two persons were examined on the 24th August as  court witnesses and thereafter the argument of counsel was resumed and concluded.  By judgment delivered on August 30, 1968 the learned  Judge  allowed  the election  petition  holding  in favour of the petitioner on the first issue.  The  appellant before  us presented an application to the High Court  under Arts. 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has now  come up before this Court by special leave. Learned counsel for the appellant raised five points  before us.  The first point was that the procedure adopted  by  the trial  court  was wrong in that the two witnesses  who  were examined  as court witnesses had been cited by the  election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses  to them when he was asked to do so on August 21, 1968.  It  was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and  this  was a serious irregularity which the  High  Court should  have  set right by quasbing the order of  the  Judge based on the evidence of these witnesses.  The second  point was  that the election petition was filed beyond the  period prescribed  by the Act and as such it was not  maintainable. The  third point was that the first issue which was  decided against  the appellant was so confusing and misleading  that there was no fair trial of the petition to the prejudice  of the appellant.  The fourth point was that in any event there was  no evidence of corrupt practice of which the  appellant could  be found guilty.  The fifth point was that the  order of  the  Judge disqualifying the appellant for a  period  of five years was unduly harsh and ought to be set aside. With  regard to the first point it is to be noted  that  the case  of the election petitioner was that the appellant  was guilty  of publication of two pamphlets which  cast  serious aspersions  on his character and conduct and prejudiced  him materially in the eyes of the voters as a result whereof  he lost  the election and that the first of these also  aroused the  religious  sentiments  of  the  Muslim  voters  to  his detriment.  The appellant was found guilty of publication of the first pamphlet only.  This was. signed by 970 six  persons.   There  was no evidence as to  where  it  was printed or who got it printed.  The evidence adduced by  the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed  the same  amongst the voters and the petitioner had come  across the  first  pamphlet  during the  process  of  distribution. There  can  be  no two opinions about the  contents  of  the pamphlet  being  defamatory  of  the  election  petitioner’s character.  The pamphlet read :                 "H. K. Kadlaskar, who contests the  election               from Ward No. 25 is an independent  candidate,               has been ostracized from the Muslim  community               and he has no support of the Muslim  community               and therefore nobody should vote for him." While  Kadlaskar  was  in charge of the  management  of  the Kabarasthan,  he  was  extracting Rs. 12  for  allowing  the members  of  Muslim  community to bury their  dead  and  had

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prohibited  the burial of the dead bodies of  dancing  girls and had extracted hundreds of rupees from the persons  whose dead  were buried there.  He turned the Kabarasthan  into  a brothel  and was trading in illicit liquor for which he  was convicted.  Recently he got published a pamphlet in the name of  his  mistress  Noorjahan Bapulal  Kavathekar  to  defame Mohamad  Umar  Shaikh  and he  is  making  some  imputations against  the  private character of Mohmad Umar  and  Moulana Innan and nobody should vote for this mean-minded and  anti- social person. In a meeting of the Muslim workers held on 29-4-1967 in  the Madina  Masjid Hall under the presidentship of M. G.  Shaikh it  was  resolved unanimously that in the  place  of  Shaikh Usman Abdul Bidiwale the Congress ticket should be given  to Umar  Shaikh,  who had the backing of Muslim  community  and that  he did great public service in the past.  So  all  the voters  should cast vote in favour of Mohammad  Umar  Shaikh whose symbol is a pair of bullocks. (1)  Ramjan  Mohiddin  Jamadar (Hundekari),  Chairman  Idgah Committee.  (2)  Shaik Abdul  Sattar  Rahimanbhai  Bidiwale, Treasurer, Idgah Fund Committee. (3) Moulana Hannan, manager of  Madrasa-e-Hidayatul Islam, and member of  Madina  Masjid (4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and  member  of Idgah Committee (5) Sayyed Amin,  member  of Madrasa-e-Hidayatul   Islam   and   Idgah   Committee.   (6) Jalaloddin  Allabus Sayyad, B.A.LLB., member  of  Madrasa-e- Hidayatul Islam." The appellant who led evidence on his own behalf denied  the publication  of the pamphlet and the distribution of  it  by him  as  alleged  by the petitioner.  Nothing  came  out  in cross-examination  of  the  appellant  to  substantiate  the election petitioner’s averment 971 that  he was responsible for its distribution.  Of  the  two witnesses who were examined as court witnesses by the Judge, the  witness  Gopal Chintaman Ghugare did not  say  anything material on the point of distribution by the appellant.   He merely said that he had seen people reading the pamphlet but he  did not know who had distributed it.  The other  witness Hakim Abdul Rahiman Shaikh stated categorically that he  had received  a copy of the pamphlet on the day previous to  the municipal  election, that is to say, on June 2, 1967 and  he gave  full particulars as to how he came to receive it.   He stated that he had attended a prayer meeting at a mosque  on the 2nd June and after the Namaj was over the appellant  had read over the pamphlet and one Moulana Hannanlent support to the  appellant.  In cross-examination it was  elicited  from him that although he had occasion to see the distribution of other  pamphlets,  he  could give no  details  thereof  i.e. either  about the person who distributed them or  the  dates when  that was done.  In cross-examination of  this  witness serious  accusations  were made against  his  character  and probably  no  exception could have been taken if  the  Judge hearing the matter had refused to believe him.  However that may be, the learned Judge accepted his testimony and came to the  conclusion  that  the  appellant  had  been  personally responsible  for the distribution of the first pamphlet  and as  such found him guilty of a corrupt practice and made  an order  disqualifying him under the Act from taking  part  in municipal elections for the next.five years.      It  was strenuously argued by learned counsel  for  the appellant  that  the  recepition  of  evidence  of  the  two witnesses called as court witnesses vitiated the whole trial and  therefore the High Court was not right in  refusing  to quash the order.  Our attention was drawn to the  provisions

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of  O.  XVI  r.  14  of the  Code  of  Civil  Procedure  and particularly  to  the conditions under which the  court  may examine  any person other than a party to the suit  and  not called  as a witness by a party to the suit but of  its  own motion  to give evidence therein.  It was argued that  after having   turned  down  the  application  of   the   election petitioner on the 21st August for issue of summons to  these two  persons,  the  learned  Judge  clearly  went  wrong  in allowing  them  to be called as court  witnesses.   In  this connection we. may note the provisions of s. 21 sub-s. 7  of the  Maharashtra  Municipalities Act, 1965. It  provides  as follows               (7)  For the trial of such petition, the Judge               shallhave  all  the powers of  a  civil  court               including  power in respect of  the  following               matters :-               (a)   discovery and inspection;               972               (b)   enforcing  the attendance  of  witnesses               and requiring the deposit of their expenses;               (c)   compelling the production of documents;               (d)   examining witnesses on oath;               (e)   granting adjournments;               (f)   reception of evidence on affidavit; and               (g)   issuing commissions for the  examination               of witnesses;               and  the Judge may summon suo motu any  person               whose evidence appears to him to be  material.               The Judge shall be deemed to be a Civil Court,               within the meaning of sections 480 and 482  of               the Code of Criminal Procedure, 1898." It  appears  that  under this section, the  Judge  is  given powers wider than those given by the Code of Civil Procedure under 0. 16 r. 14 inasmuch as the section does not prescribe any  prerequisite  to the examination of a person  as  court witness as envisaged by the Code of Civil Procedure.  In our view,  the learned Judge had jurisdiction to call these  two persons  as witnesses under the provisions of the  Act.   We may  note that even under the Representation of  the  People Act, 1951 which does not contain a similar provision it  has been held by this Court that               "although........ the trial court should be at               arms  length and the court should  not  really               enter  into the dispute as a third party,  but               it  is  not to be understood  that  the  Court               never has the power to summon a witness or  to               call  for a document which would  throw  light               upon  the  matter,  particularly  of   corrupt               practice which is alleged and is being  sought               to be proved.  If the Court was satisfied that               a   corrupt   practice  has   in   fact   been               perpetrated, may be by one side or the  other,               it  was absolutely necessary to find  out  who               was the author of that corrupt practice." (see               R. M. Seshadri v. G. Vasanta Pai(1). In that case, the corrupt practice with which the  appellant was charged was having used a large number of motor vehicles for the free conveyance of voters at an election.  The trial Judge  examined two witnesses as court witnesses and  it  is quite clear that but for the evidence of these two  persons, it  would have been very difficult. if not  impossible,  for the Judge to have come to the conclusion he did and find the appellant  guilty of corrupt practice.  Although one of  the two  witnesses  so  examined had been  cited  earlier  as  a witness by one of the parties, he was not

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(1)  [1969] 2 S.C.R. 1019. 973 examined  but during the course of the evidence  led  before the  rial court, it became quite clear that the two  persons who  were  called as court witnesses were  fully  conversant with  the  engagement of the motor vehicles  and  the  court therefore examined them as court witnesses and on the  basis of  their evidence, found the appellant guilty of a  corrupt practice.  There, this Court had to deal with the provisions of  0. 16 r. 14 and the quotation from that  judgment  shows that  the  powers of the court in this respect are  of  wide amplitude,  specially when investigation is being made  into allegations about the commission of a corrupt practice.   It may be that in the instant case, if the two persons had  not been  examined, the Judge might well have decided the  issue the other way.  But the Act certainly gave him the power  to do so and no exception can be taken to the course adopted by the  Judge  although it must be recorded  that  his  earlier order  refusing  to  issue summonses to  them  in  the-first instance  when asked to do so on the 21st August was  hardly justifiable.   Probably the learned Judge realised that  his order  of the 21st August needed recalling.   The  appellant would  have had a real cause for grievance if he  had  asked for  an  opportunity  to rebut the  evidence  of  these  two witnesses and had been denied the same but this has  nowhere been alleged.  On the evidence no exception can be taken  to the  course  adopted  by the Judge  in  deciding  the  issue against the appellant on the facts and circumstances of this case.  It may be that the evidence which was adduced was not so  immaculate  that  another  learned  Judge  deciding  the petition  might  not have taken a different  view.   But  it cannot be said that there was no evidence on which the Judge could  have come to the conclusion he did, The  first  point therefore fails. With regard to the second point, the learned counsel  argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967  that the  first publication having- taken place on the  8th  June the  time-limit of ten days fixed under s. 21 sub-s. (1)  of the  Act began to run from that date and the petition  which was  filed on the 24th June was beyond time and  should  not have  been entertained.  It is difficult for us to  see  why two’ Gazette notifications had become necessary.  One  seems to  be  the  verbatim  reprint  of  the  other.   The  first publication dated 8th June is headed "Maharashtra Government Gazette-Extraordinary-Official Publication" while the  other is   headed   "Maharashtra   Government    Gazette--Official Publication".   The  first bears the date 8th June  and  the second  bears  the date 15th June and both  start  with  the sentence  "in  accordance with s. 19(1) of  the  Maharashtra Municipalities  Act, 1965 it is declared that in respect  of the  Sangh Municipal Council General Elections held  on  3rd June 1967, the below mentioned candidates are elected  from. the below mentioned 974 wards for the seats mentioned as against their names".  As a matter  of  fact,  it  does not appear  that  there  is  any difference between the two Gazettes with regard to the names of the successful councillors.  The appellant might have, if so  minded, set up the first Gazette publication as the  one fixing  the  period of limitation in which  case  the  trial Judge  would have been required to go into the matter.   But the  appellant  precluded  himself  from  doing  so  by  his unconditional  acceptance of the statements in paragrapbs  1 and  2  of the petition.  If the point  had  been  canvassed

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before the learned trial Judge, he would certainly have gone into  the  matter and found out why there were  two  Gazette Publications and which was the publication to be taken  into account   for  computation  of  the  period  of   limitation prescribed  by  s. 21 (1) of the Act.  There  was  no  error apparent on the face of the record before the High Court and consequently   the  jurisdiction  under  Art.  226  of   the Constitution  could not have been exercised on the facts  of the  case  by the issue of a writ  of  certiorari.   Neither could  the High Court have set aside the order of the  trial court  under  Art. 227 of the Constitution under  which  the High Court’s power of superintendence is confined to  seeing that the trial court had not transgressed the limits imposed by the Act.  On the facts of the case the High Court was not called upon to go into this question. There is certainly-some substance in the grievance raised on behalf  of  the appellant that the first  issue  was  rather confusing  and  misleading.  Instead of framing  a  separate issue with regard to each charge of corrupt practice  raised in  the petition, the learned Judge, framed the issue  in  a manner  which  leaves much to be desired.  For  instance  he should have framed separate issue with regard to each of the pamphlets.   The  issues should further have  specified  the different heads of corrupt practice committed in respect  of each  of  the pamphlets.  We cannot, however,  come  to  the conclusion that because of the unsatisfactory nature of  the issues  framed, the whole trial is vitiated.  The  appellant knew  exactly  what  points he had to  meet.   Evidence  was adduced  about  the publication and  distribution  of  the-- pamphlets by the election petitioner and contradicted by the appellant.  As we have already stated, although the evidence about  the distribution of the pamphlet was meagre  and  not beyond  reproach it was not for the High Court to  take  the view  that the order ought to be quashed on the ground  that there was no evidence.  It was urged by learned counsel  for the  appellant that there was enough material for the  court to come to the conclusion that Hakim Abdul Rahiman Shaik was not  a  person whose veracity could not  be  depended  upon. There is much that can be said against him but this does not mean  that everything deposed to by him should  be  rejected and  when the trial Judge accepted the evidence with  regard to  the  distribution of the pamphlet by the  appellant  the High Court 975 which  was  not hearing an appeal could not be  expected  to take a different view in exercising jurisdiction under Arts. 226 and 227 of the Constitution and for- ourselves, we  see no reason to interfere with the order of the High Court. The  fourth  point  too is not one  of  substance.   If  the distribution  of the pamphlet be accepted, there can  be  no doubt  that  the appellant was guilty of  trying  to  arouse religious sentiments of the voters of the particular ward  a majority  of whom were Muslims.  The pamphlet starts off  by describing  the election petitioner as a  person  ostracised from  the  Muslim community.  If this  statement  was  true, naturally any right-thinking Muslim would think twice before casting his vote in favour of such a person.  There was also a charge in that pamphlet that he had turned the Kabarasthan into  a brothel and was trading in illicit liquor for  which was  alleged to have been convicted.  In our view, there  is no merit in this point raised by the learned counsel. As  regards the last point, it was for the learned Judge  to have  come  to  his  own conclusion  as  to  the  period  of disqualification.  The maximum penalty which the Act allowed him to impose was disqualification for six years and we  see

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no  reason  to take any exception  to  the  disqualification actually  imposed.   As  noted  above,  the  allegations  of corrupt  practice  were  of  a serious  nature  and  if  the appellant  was found guilty of the commission  thereof,  the period  of five years’ disqualification would certainly  not be inappropriate.   In  the  result, therefore, the appeal fails; but  in  the circumstances of this case, we make no order as to costs. R.K.P.S.                            Appeal dismissed. 976