REGISTERED No. D. (D.N.)-72
The Gazette of India
EXTRAORDINARY
PART II—Section 3—Sub-section (ii)
PUBLISHED BY AUTHORITY
No. 98] NEW DELHI, WEDNESDAY, MARCH 17, 1982/PHALGUNA 26, 1903
Separate paging to given to this part in order that it may be filed as a separate
compilation
(239)
1451 GI/81
240 , , , , , THE OAZFTTE OP INDIA : EXTRAORDINARY [PART II—S"c. 3{itt|241
ANNEXURE
MINISTRY OF LAW, JUSTICE AND COMPANY AFFAJKi
(Legislative Department)
NOTIFICATION
New Delhi, the 17th Mavch, 198?
S.O. 13W^.—The following Oilder made by the President
is published for general information :—
ORDER
Whereas the election of Shii Hira Ram Toofnni (hcrsin- aftct referred to as the "returned candidate"), ft retu -net! candidate from 308-Kahfce (SC) Assembly Constituency in the State of Bihar, was declared void by the Pavna High Court (Ranchi Bench) bv it" judgement and oidcr dated th© 4th April, 1980. in Election Petition No. 3 cf 1977 (R) on the g bund of commission by the returned candidate of the corrupt practice specified in calusc (4) of section 123 of the Representation of the People Act, 1951 (hereinafter referred to as L'the said Act") ;
And whereas an appeal was filed by the jtetirrned candidate before the Supreme Court and that Court stayed the opera- tion of the High Court's order on the 3Oth April. 1980 ;
And whereas the Supreme Court subsequently vacated its stay ordci' on the 21st July, 1980, and dismissed the appeal filed by the ieturned candidate on the 28th November, 1980 ;
And whereas the case of the returned candidate was sub- mitted by th* Secretary, Bahir Legislative Assembly to the President on the 27th May, 1981, in terms of Section 8AC1) of the said Act ;
And whereas the President hjs sought the opinion of the Election Commission in puiisuance of sub-section (3) of section 8A of the said Act on the question whether the relumed candidate should be disqualified under sub-section (1) of that section of the said Act and. if so, for what neriod ;
And whereas the Flection Commission hai; given its opinion (vide Annexure) Hint the ieturned candidate should be disqualified for a period o[ two ye:irs to be rccloncd flow the 21st July, 1980 i.e. 1he Jate of the judgment of the Supreme Court from which date the order of the High Court under section 99 became effective ;
Now. therefore, I NEEI.AM SANJIVA REDDY, President of India, in exercise of -the powers conferred on me underi sub-section (3) of section RA of the sairl Art do hereby decide that 1he returned candidate should be disqualified for a period of two years from 21st July, 1980.
Rflshtrapati Bhavan
NEELAM SANJIVA REDDY
New Delhi,
ELECTION COMMISSION
OF INDIA
BEFORE THE ELECTION COMMISSION OF INDIA
In re : Refeilence Case No. 4 of 1981—disqualification of Shri Hira Ram Toofani, Ex-M.L.A., Bihai
OPINION
This is a Reference from the President under section 8A(3> lead with scct'on i\(\) of the Rcpicsentalion of the People A' (, Iy51, sowing the opinion of the Election Commission •whethci Shri lliia Rnm Toof.mi, a former, member of (he Bihar Legislative Assembly, should he disqualified for the comnrssion of the corrupt piaUicc under section 123(4) of the said Act and, it so, for whiit period.
The Patna Nig1! Court (Ranchi Rench), by its judgment, and nri/c I d'lted the 4th Apiil, 19S0 in election petition No. 3 or 1977 (It), declared the election of Shri llira R.im Toofani to Bihar legislative Assembly from 308-Kankc [SC) Assem- bly Constituency held in May/Tune 1977, void. The High Court found that Shri Hira Ram Toofani had committed a corrupt practice under section 123(4) of the Representation of the Peoplc Act, 1951 by publishing and distributing a pamphlet containing false statement of facts amounting to character assassination of the rival candidate Shri Ram Rattan Ram. The objectionable portion of the offending poster referred in the K'gh Court judgment runs as> follows:—
"The person who has been set up as a Congress candidate from Kankc Legislative Assembly Constituency is one of the old authorities of the Math. Shri Ram Rattan was a Minister for Jail during the emerp^ncy period and within 20 months, he pushed 30 fhou- land political wo Lcnj inside the jails of Bih.n in- huminlv tike sheep ,md goals without anv reason nml got (he ration of the prisoners curtailed and got his single storeyed building conveiled into a double storeyed building overnight. Thcic is a long history of loiruplion of Sh-'i Rtim Rnttao Ram."
Shri Toofani filed an appeal before the Supreme Court and that Court itayed the operation of the High Court's order on 30-4-1980. Howevei, the Sup temc Court vacated its stay order on 21-7-1980 and also dismissed the appeal on 2R 1M98O on (he failure of (he appellant to deposit the requisite security amount within the time allowed for the purpose.
In terms of section 8A(1) of the Representation of the People Act, 195] ihe cose of Shri Hiria Ram Toofani was. submiitrd by the Krxietary, Bihar Legislative Assembly to the President on 27-5-1981 for determination of the question as to whether Shri Toofani 'hould be disqualified find, if so, for what period. The President, m pursuance ot section 8Af3) of the said Act hns ifcferred the matter on 6-C-1981 to the Commission for its opinion.
Before tendering its opinion to the President, the Cftm- r>ifssion afforded .in opportunity (o Shri Toofani of being heard in the matter.
PRESIDENT OF INDIA
the 12 March, 1982-
At the personal hearing granted to Shri To-of.ini on 19-9-1981, his Counsel, ShrJ TWai Proftip Singh, submitted thjl h; was bound by the findings of the High Court which found Shri Hira Ram Toofani gnillv of commission of corrupt practice under section 123(4) of the Representation of the Pconle Act, 1951. But he poinled out thnt unfortunately the Supreme Court could not test those findings because the appeal filed by Shri Toofani WHS dismissed for default in depositing the icquisife security for costs as Shri Toofani being a man of no means could not arrange sufficient money for mating the said deposit, He stated that he was confident that if the Supreme Court lind decided the nppe;il on rretffs the decision of the High Court would have been reversed. In h Court to show that the impugned poster' was rot exhibited and brought on record and the priting- and publi- cation thereof at the instance of Shri Toofani was not proved.
242 THE GAZETTE OF INDIA : EXTRAORDINARY [PA"T II—SEC. ^(ifl]He also submitted that the corrupt practice under section 123(4) lay in making a statement of fact in relation to the pCiSonal character or conduct of a rival candidate which the person making that statement either believed to be false or did not believe to be true. He contended that these essential ingredients of the corrupt practice had not been established in the High Court's findings against Shri Toofani. He also submitted that statements made in the offending poster related mostly to the public conduct of the rival candidate and there was nothing in that poster to warrant the inferences relating to the personal character or conduct of the rival candidate concerned as were drawn by the High Court.
Shri Udai Pratap Singh also submitted that Shri Toofani was only about 26 yeaib of age when he contested the election under reference and that was his first^xperience of contesting an election. He submitted that Shri Toofani's conduct other- wise had been quite good and he won that election with a substantial majority. He also stated that Shri Toofani had contested the last general election to Bihar Legislative Assembly held in May-June, 1980 from the same constituency against the same rival candidate and lost that election by only about 830 votes. Ho urged that keeping in view the above submissions and the young age of Shri Toofani, the Commission might take a lenient view In the matter and not award 'o him the maximum period of disqualification and that the disqualification in his case for the peniod already undergone from the 21st July, 1980. i.e. the date on which the Supreme Court vacated its stay order, might be con"l- deted syfflcjent in the interests of justice,
I have considered and analysed carefully the submissions made by Shri Udai Pratap Singh. The findings of the High Court are final in so far as the Commission is concerned and it cannot sit in judgment over those findings. Nonetheless, the submissions made by Shri Udai Pratap Singh touching upon these findings cannot be said to be wholly irrelevant to the question referred to the Commission for its opinion.
The Commission is to give its opinion whether on the finding of the High Court Shri Toofani should be disqualified a,p(i, if so, for what period. The answer to this two-fold question wfll depend upon the gravity of the corrupt practice brought borne to Shri Toofani in these findings. The reading of the objectionable portion of the offending poster! which has been reproduced above would show -"that most of the statements made therein relate to the public conduct of the rival candi- date as Minister for Jails and the only allegation touching upon his personal character or conduct is the one relating to the conversion of his single storey house into a double storey house by him overnight. I do not feel that the state- ments made therein contained such scurrilous or scandalous material which ought to be viewed with utmost seriousmeBS.
As the High Court, however, has recorded the finding of guilt against Shri Toofani foil commission of a corrupt practice and a" the corrupt practice proved against him is not of a technical nature, I am of the opinion that he should incur the disqualification. As regards the period of dis- qualification, I feel that Shri Toofani deserves a lenient treat- ment having ilegord to the submission made by Shri Udaf Pratap Singh regarding his young age and inexperience In political field. I think & disqualification for a period of two years from the date on which the findings of the High Court became effective i.e. the 21st July. 1980 in the present case, would serve the ends of justice.
I accordingly tender my opinion to the above effect to the President under! section SAO) of the Representation of the People Act, 1951.
S. L. SHAKDHER, Chief Election Commissioner
of India
N"w Delhi September 26, 1981.
[No. F. 7(33)/82-Leg. UJ
R. V. S. PERI SASTRI, Secy.