Pushp Pal Singh vs Sri Ghanshyam Singh Lodhi
2019 Latest Caselaw 5284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
AFR
 
Court No. - 39
 

 
Case :- ELECTION PETITION No. - 1 of 2016
 
Petitioner :- Pushp Pal Singh
 
Respondent :- Sri Ghanshyam Singh Lodhi
 
Counsel for Petitioner :- Vinay Kumar Khare
 
Counsel for Respondent :- Madhur Prakash,Madhur Prakash,Sharad Sharma
 

 
Hon'ble B. Amit Sthalekar,J.

This Election Petition has been filed by the petitioner Pushp Pal Singh seeking a declaration of the election of the respondent Ghanshyam Singh Lodhi as member of the Legislative Council of Uttrar Pradesh from Rampur - Bareilly Local Authority Constituency as null and void.

Briefly stated, the facts and allegations as set out in the Election Petition are that election of Rampur - Bareilly Local Authority Constituency was notified by the Election Commission of India on 8 February, 2016. The last date of filing of nomination was 15 February, 2016 and the date of scrutiny of nomination was 16 February, 2016. The last date for withdrawal of candidature was 18 February, 2016. The date of polling was 3 March, 2016 from 8 A.M. to 4 P.M. and the date for counting of votes was 6 March, 2016 and the election process was to be completed on or before 9 March, 2016. The election schedule as stated in the Election Petition is extracted below :

Issue of Notification 		     :   8th February, 2016 (Monday)
 
Last date of making nomination :  15th February, 2016 (Monday)
 
Scrutiny of nominations 	     :  16th February, 2016 (Tuesday)
 
Last date of withdrawal of 
 
candidatures 			     :  18th February, 2016 (Thursday) 
 

 
Date of Poll 			     :  3rd March, 2016 (Thursday) 
 
Hours of Poll 			     :  8 A.M.  To 4 P.M.
 
Counting of Votes 		    :  6th March, 2016 (Sunday)
 
Date before which election 
 
shall be completed                     :  9th March, 2016 (Wednesday)
 

 
	It is stated that the petitioner was one of the contesting candidates in the said election and was nominated by the Bhartiya Janata Party (in short 'B.J.P') with the symbol of 'Lotus' whereas the respondent was nominated as candidate of the Samajwadi Party (in short 'Samajwadi Party') with the symbol of 'Cycle'). 
 

The allegation is that the respondent has adopted and committed a corrupt practice as defined in sub-section (7) of Section 123 of the Representation of the People Act, 1951 (for short 'Act, 1951') and therefore, his election is liable to be declared as null and void. In the said election which was declared on 6 March, 2016 the petitioner is stated to have secured 962 votes whereas the respondent secured 2285 votes. Alleging corrupt practice it is stated that one Dr. Anil Sharma had filed his nomination on 15 February, 2016 at 11.15 A.M. (the last date for filing nomination) as a Samajwadi Party candidate for election to the Legislative Council of Uttar Pradesh from Rampur - Bareilly Local Authority Constituency. The respondent on the other hand filed his nomination for the same constituency as Samajwadi Party candidate also on the last date of nomination i.e. 15 February, 2016 at 14.28 A.M. The allegation is that the authorization letter of the respondent was brought on 15 February, 2016 by Sri Jagdev Singh, Officer-on-Special Duty (OSD) to Sri Akhilesh Yadav, the then Chief Minister of Uttar Pradesh in a Government Helicopter. It is alleged that Sri Jagdev Singh came to Bareilly in a Government Helicopter and landed in the ground of Police line, Bareilly carrying the authorization letter of the Samajwadi Party in favour of the respondent on 15 February, 2016 and that he was received in the Police Line by the respondent Sri Ghanshyam Singh Lodhi and the other political workers and supporters of the Samajwadi Party and other district officials. The authorization letter in favour of the respondent was handed over by Sri Jagdev Singh in furtherance of the election prospect of the respondent after landing at Bareilly from a Government Helicopter and Sri Jagdev Singh being a government official on the said date such act constituted corrupt practice. It is stated that after receiving the Samajwadi Party authorization from Sri Jagdev Singh, the respondent filed his nomination on 15 February, 2016 at 14.28 P.M. Thus, the respondent adopted corrupt practice in filing his nomination as he has received the authorization letter of the Samajwadi Party from Sri Jagdev Singh who was the O.S.D. and therefore, a government official who brought the authorization letter to Bareilly in a Government Helicopter and handed it over to the respondent.

It is stated that this fact was mentioned in several newspapers with photographs and it was also reported that Rs.2500/- had also been deposited as Helicopter landing charges in the concerned office. It is also stated that the newspaper also published a news item that the Election Officer had issued a notice to the respondent and the election observer Sri Yashwant Kerure had also submitted a report in this regard to the Election Commission alleging corrupt practice by the respondent and that an enquiry was also conducted by the Election Officer in this matter but no report was made public.

A written statement has been filed by the respondent denying the allegations of the Election Petition. It is stated that under Section 79(b) of the Act, 1951 on a mere authorization in favour of a person it cannot be said that the person is nominated as a candidate unless he files his nomination papers in accordance with the due process. It was denied that the respondent had requisitioned the services of a Government Helicopter or any other person in this regard and therefore, he had not adopted any corrupt practice as defined in sub-section (7) of Section 123 of the Act, 1951. It is stated that the authorization letter of the respondent was brought by one Sri Praveen Maheshwari, an employee of the State Office of the Samajwadi Party., Lucknow through a helicopter hired from the Director, Civil Aviation, Uttar Pradesh, Lucknow by the Samajwadi Party and charges of Rs.2,21,575/- were paid through cheque no. 778886 dated 15.02.2016 by the Samajwadi Party State Office. It is also stated that a certificate in this regard being letter no. 2203 of 2016 dated 22.6.2016 has also been issued by the State Secretary, Samajwadi Party, Uttar Pradesh and the authorization letter which was brought by Sri Praveen Maheshwari was handed over to the District President, Samajwadi Party, Bareilly which was attached along with the nomination papers of the respondent. It was denied that the authorization letter was brought by Sri Jagdev Singh, O.S.D. to the Chief Minister on 15 February, 2016. It is denied that Sri Jagdev Singh handed over the authorization letter of the Samajwadi Party. Rather it was Sri Praveen Maheshwari, an employee of the State Office of the Samajwadi Party, Lucknow who handed over the authorization letter to the District President, Bareilly. It is also stated that no free services were availed by the Samajwadi Party From the Government in this regard and that the helicopter was hired by the State Office of the Samajwadi Party, Lucknow and not by the Government.

The following issues were framed by the Court :

(1)    Whether the respondent has committed corrupt practice as defined under Section 123 (7) of the Act, 1951?
 
(2)     Whether Sri Jagdev Singh, OSD to the U.P. Chief Minister Sri Akhilesh Yadav came to Bareilly in a Government Helicopter on 15.02.2016 bringing with him Samajwadi Party Authorization letter in Form 'AA' and 'BB' for the respondents?
 
(3)    Whether the respondent thereby procured the assistance of a Gazetted Officer, Sri Jagdev Singh, O.S.D. to the Chief Minister of U.P. Sri Akhilesh Yadav for furtherance of the prospects of his election as a Member of Legislative Council of U.P. from Rampur Bareily Local Authority Constituency?
 
 
 
(4)     Whether the U.P. State Government Helicopter was used by Sri Jagdev Singh to bring the authority letter Form 'AA' and Form 'BB' of the Samajwadi Party in favour of the respondent on 15.02.2016 at Bareilly?
 
 
 
(5)    Whether there is any allegation in the pleadings of the Election Petition of the opposite party having committed any corrupt practice after filing nomination papers? 
 

 
(6)    Whether the Election Petition does not contain material facts and the pleadings are absolutely vague, not accompanied with necessary particulars required by law and therefore, on this ground the Election Petition deserves to be rejected?
 

 
	The parties led evidence. Sri  Pushp Pal Singh was examined as a witness and he has reiterated the allegations as contained in the Election Petition.
 

In cross-examination by learned counsel for the respondent, Sri Pushp Pal Singh stated that the nomination had been filed on 15 February, 2016 and that he had proceeded from his house at 10 A.M. and after purchasing the nomination form, he had filed the same along with proposal around 12 to 12.15 P.M. and thereafter, along with his party workers, he started from Sanjay Nagar Office and filed nomination before the Election Officer at about 2.45 P.M. When asked whether two sets of nomination were filed, the witness stated that the first set was filed at 12.15 P.M. and second set was filed at 2.45 P.M. With regard to nomination of respondent being brought by the O.S.D. of the then Chief Minister Sri Akhilesh Yadav in a Government helicopter which landed at the police line and was handed over to the Samajwadi Party District President Sri Veer Pal Yadav, the witness stated that he had received the information at the same time from S/Sri Hari Pal Singh, Satya Prakash Patel and Surendra Pal Singh. Therefore, he directly went to the police line but by that time the O.S.D of then Chief Minister Sri Akhilesh Yadav was leaving. He also confirmed the information from the newspaper reporting of next day which also contained the photograph. Regarding as to whether the incident was witnessed by him and his information was based on personal knowledge, the witness stated that his statement is absolutely correct and on receiving information he had rushed to the police line and saw the opposite Party Sri Ghanshyam Singh Lodhi and Sri Veer Pal Yadav coming out from the police line and the helicopter was still standing in the police line. With regard to the expenses incurred in engaging helicopter etc. the witness stated that he had obtained information under the Right to Information Act and was informed that a sum of Rs.2,21,000/- had been deposited on 28 February, 2016 and not earlier and in the same RTI it was informed that the helicopter was booked by Sri Jagdev Singh, O.S.D. to then Chief Minister Sri Akhilesh Yadav and that Sri Jagdev Singh had also travelled in the same helicopter. The witness confirmed that the respondent had deposited Rs.2,21,575/- through cheque dated 15.2.2016 drawn in favour of the Director, Civil Aviation, Uttar Pradesh, copy of which has been filed along with the documents and is part of the record. When asked that corrupt practice alleged to have been committed under Section 123(7) of the Act, 1950 was committed at the time when the opposite party had filed nomination as a candidate and not after the filing of the nomination papers, the witness replied that the engagement of government helicopter by the O.S.D. to then Chief Minister Sri Akhilesh Yadav was a violation of the Model Code of Conduct. When asked that Sri Praveen Maheshwari, a Samajwadi Party Office worker had handed over the acknowledgment letter and election symbol and the nomination was filed on 15.2.2016 at 2.28 P.M. and after filing of nomination only thereafter a candidate can be called a 'Candidate' and from that time till the completion of election whether there was any allegation levelled against the opposite party of committing corrupt practice during this period, the witness replied that in the Election Petition the allegation is with regard to handing over of the nomination papers by Sri Jagdev Singh, O.S.D. to then Chief Minister Sri Akhilesh Yadav and Sri Praveen Maheshwari to the opposite party. When asked whether any other allegation of corrupt practice was alleged by him against the opposite party, the witness replied in the negative.

The next witness P.W. 2 Sri Satya Prakash Patel in his affidavit has stated that on 15 February, 2016 when he was near the Chaupala Crossing near Bareilly Police Line, he swa a helicopter which landed in the police line and there was a large crowd in the police line ground. After the helicopter landed the person who got down from it shook hands with Sri Veer Pal Singh Yadav, the District President of Samajwadi Party, Bareilly and handed over to him some papers and Sri Veer Pal Singh Yadav took the papers and along with opposite party went to the Collectorate, Bareilly immediately. It is also stated that from some police personnel and other persons standing in the police ground, he learnt that nomination and acknowledgment papers of the opposite party were brought by Sri Jagdev Singh, O.S.D. to then Chief Minister Sri Akhilesh Yadav by helicopter and thereafter, gave this information to Sri Pushp Pal Singh informing him that the Samajwadi Party had changed its candidate. In cross-examination Sri Satya Prakash Patel when asked as to how he came to be near police line ground, he stated that he is an agent of the Life Insurance Corporation of India whose office is close to the Collectorate and when he was going to his office he saw a helicopter landing in the police ground at about 1.30 P.M. and that a large crowd of Samajwadi Party workers and other persons had collected in the police line ground and out of curiosity he also went there. When asked as to how he came to know that there were Samajwadi Party workers in the crowd, the witness stated that the then District President of the Samajwadi Party Sri Veer Pal Singh Yadav, Mayor Dr. I.S.Tomar and former MLC Sri Ghanshyam Singh Lodhi etc. were also present there. When asked as to whether he himself saw the O.S.D. Sri Jagdev Singh handing over papers regarding election symbol and nomination to the District President Sri Veer Pal Singh Yadav, the witness replied in the affirmative and stated that two persons got down from the helicopter and came towards Sri Veer Pal Singh Yadav, District President of Samajwadi Party and one of them was an elderly person who handed over certain papers to Sri Veer Pal Singh Yadav and when out of curiosity asked some of the persons standing there he was informed that the name of Sri Anil Sharma, the previous candidate had been cancelled and nomination papers and symbol had been brought by Sri Jagdev Singh, O.S.D. to then Chief Minister Sri Akhilesh Yadav in favour of Sri Ghanshyam Singh Lodhi and thereafter, Sri Veer Pal Singh Yadav, the then Mayor Dr. I.S. Tomar and former MLC Sri Ghanshyam Singh Lodhi went in haste towards the Collectorate. The witness stated that Sri Jagdev Singh was holding papers in his hand. Looking at the photographic documents, page 46 of the documents, the witness stated his statement is with regard to the time when Sri Jagdev Singh got down from the helicopter and handed over the papers to Sri Veer Pal Singh Yadav. When asked whether he recognized the two persons in the photograph at page 46 of the documents, the witness replied that he did not know either of the two persons in the photograph but he was informed by persons standing in the crowd that one of them was Sri Jagdev Singh, O.S.D. Looking at the photograph at page 51 of the documents, the witness stated that neither of the persons in the photograph was holding any paper. Similarly, looking at the photograph at page 50, the witness stated that Sri Jagdev Singh was not seen in the photograph but another person who came with him in the same helicopter is clearly visible but Sri Jagdev Singh coming out of the same helicopter with some other person itself was enough. Looking at the photographic at page 50 when asked whether the other person in the photograph was carrying papers which he handed over to Sri Veer Pal Singh Yadav, the District President of Samajwadi Party, Bareilly and Sri Veer Pal Singh Yadav took papers from him, the witness stated that the other person and Sri Veer Pal Singh Yadav are visible in the photograph but Sri Jagdev Singh was not visible in the photograph. When asked that other person who handed over the papers to Sri Veer Pal Singh Yadav was Sri Praveen Maheshwari, the witness stated that he was only stating that what he had seen.

The P.W. 1 Sri Hari Pal Singh in his affidavit has stated that on 15 February, 2016 he had come to Bareily and when he was near Chaupala Crossing which was close to the police line, he saw the Helicopter landing in the police line and there was a big crowd collected there and one person got down from the helicopter and shook hand with Sri Veer Pal Singh Yadav, Disrict President of Samajwadi Party, Bareilly and handed over some papers to him after which Sri Veer Pal Singh Yadav and Sri Ghanshyam Singh Lodhi, the opposite party herein immediately came out from the police line and left for the Collectorate, Bareilly. He also stated that Sri Ghanshyam Singh Lodhi had been put up as a candidate of the Samajwadi Party for the election and that his election symbol and nomination papers were brought by Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav in a government helicopter.

In cross-examination by learned counsel for the opposite party, the plaintiff-witness Sri Hari Pal Singh stated that he is working privately in M/s. G.P. Enterprises under the proprietor Sri Rajeev Agarwal and that on 15 February, 2016 when he was working in his office he had to go for work of collection and this took him to the Chaupala Chauraha and when he saw the crowd in the police line, he went there to see what was happening. He saw Sri Pushpal Singh who is his maternal cousin there. He clearly saw Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav was carrying some papers in his hands which were election symbol and nomination papers which he handed over to Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly. He also stated that he saw the helicopter landing in the police line and stood behind the crowd who were already present on the spot. There were about 50 people. The witness identified Sri Jagdev Singh from page 46 of the list of documents which is the newspaper cutting of 'Amar Ujala', Bareilly dated 16.2.2016 but also stated that in the photograph he had not seen any paper in his hands. Thereafter, when the other person in the photograph, page no. 46, who was wearing a blue shirt, was pointed out the witness stated that he had saw papers or some documents like a file in his hands. From the photograph at page 50 of the list of documents, the witness also identified Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly. When asked whether the person in blue shirt whose name is Sri Praveen Maheshwari was handing over papers to Sri Veer Pal Singh Yadav, the witness replied that he does not know the person who is giving some papers to Sri Veer Pal Singh Yadav.

P.W. 3 Sri Surendra Pal Singh also in his affidavit stated that on 15 February, 2016 a helicopter came very low and was seen landing in the police line. Out of curiosity he went to the police line and entered the Maidan and saw a helicopter landed there, a person got down from the helicopter who had some papers in his hand which he handed over to Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly after which Sri Veer Pal Singh Yadav along with Sri Ghanshyam Singh Lodhi immediately came out of the police line and went to the Collectorate, Bareilly. From enquiry from the persons standing in the police ground and some police personnel, he was informed that for the Bareilly-Rampur Joint Vidhan Parishad Sri Ghanshyam Singh Lodhi had been selected by the Samajwadi Party as candidate and that his election symbol and nomination papers were brought by helicopter by Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav.

In cross-examination by the counsel for the opposite party, he stated that when he was passing through police line he saw the crowd in the police ground so he went inside and saw a helicopter had landed there between 1.30 p.m. to 2 p.m. He saw two people getting down from the helicopter out of which one was an elderly person and other one was a younger person . The elder person was carrying some file in his hands. From page 46 of the list of documents which is the photograph published in the Amar Ujala dated 16 February, 2016 he stated that Sri Jagdev Singh was not carrying any paper in his hands but the papers were in the hands of another person who was wearing a blue shirt and it was either a paper or a file. From the photograph at page 50 of the list of documents, he stated that the person in the photograph is Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly From the photograph at page 50 of the list of documents, he stated that he saw another person who had come with Sri Jagdev Singh was carrying some papers. Again from the photograph at page 50 of the list of documents, he stated that Sri Jagdev Singh is not present in the photograph . He also stated that he identified Sri Jagdev Singh from his photo.

Thereafter, an application was filed by the counsel for the petitioner with the prayer that Sri Jagdev Singh, retired I.A.S. may be called as a witness. Objection was filed by the opposite party. Rejoinder was filed and thereafter, an order was passed calling Sri Jagdev Singh as a witness.

Sri Vinay Kumar Khare, learned counsel for the petitioner also moved an application that certain R.T.I. letters dated 8.1.2019 and 24.1.2019, filed as annexure-1 & 2 of the accompanying affidavit, may be taken on record. This application was, however, rejected by the court.

An affidavit was also filed by the opposite party opposing the application of the petitioner dated 30.1.2019 for bringing the letters dated 8.1.2019 and 24.1.2019 on record. Rejoinder affidavit was filed. However, the application was rejected by the Court vide order dated 29.3.2019.

Sri Jagdev Singh who was called as a witness was cross-examined by Sri Vinay Kumar Khare, counsel for the petitioner. When asked whether he is the person shown in page 46 of the list of documents getting down from the helicopter, the witness answered in the affirmative. When shown the page 46 of the list of documents and asked whether he had brought the candidate's ticket Form-A for M.L.C. and From-B from Lucknow as O.S.D. to the then Chief Minister Sri Akhilesh Yadav by a government helicopter, the witness replied in the negative and stated that he had not brought any paper. When documents at page 47, 48, 49 & 51 of the list of documents were shown to the witness and asked whether he had brought the nomination papers of the Samajwadi Party candidate, the witness denied the question put to him but admitted that he is the person in the photograph. When asked as to who was the person who travelled with him in the helicopter on 15 February, 2016, the witness replied that other than the Pilot of the helicopter there was no person belonging to the Samajwadi Party in the helicopter. When asked what was his objective in going by a helicopter to Bareilly on 15 February, 2016, the witness replied that he took a lift in the helicopter on 15 February, 2016 to go to Bareilly to meet a person known to him. When asked what was the name of that person, the witness Sri Jagdev Singh stated that it was Dr.Yogendra Rawat, Maninath Road, Bareilly. When asked as to who gave him lift in the helicopter to go to Bareilly, the witness stated that since he wanted to go to Bareilly on a personal visit, he had already informed the Director, Civil Aviation Sri Devendra about his impending visit and that if some plane or helicopter is going to Bareilly, he may be informed. He stated that he wanted to go to Bareilly on a private visit and was not getting time for it. The witness looking at the document at page 44 of the list of documents denied that he had been brought in a government helicopter on 15 February, 2016 on his oral order. He stated that his name nowhere occurs in the document at page 44. The witness also stated that this trip to Bareilly was not his own and that there are many kind of works of the O.S.D. to the Chief Minister but information about this would only be available with the Director, Civil Aviation and not with him. When he was confronted with the document at page 42 of the list of documents and asked that in the RTI reply it was stated that in the government helicopter the O.S.D. to the Chief Minister had also come to Bareilly on 15 February, 2016, the witness stated that he had clarified his position that on 15 February, 2016 he had also gone by helicopter. When asked whether as a government servant he could use a government helicopter for his private visit to Bareilly, the witness replied that the helicopter was used for Party purpose and he had only taken a lift in it to go to Bareilly. When asked whether he was aware that after the election had been notified he could not have travelled in a helicopter booked by a particular political party, the witness replied that he came to know that the helicopter had been booked by the political party from the other person who was travelling with him in the helicopter and that too, after the helicopter had already taken off.

Sri Praveen Maheshwari, D.W. in his affidavit dated 15.3.2018 has stated that on 15 February, 2016 when he was in the State Samajwadi Party Office for work of the party at about 11 a.m. he received information that he had to proceed to Bareilly from the District Secretary of the Samajwadi Party, Uttar Pradesh with the nomination papers and election symbol in the name of Sri Ghanshyam Singh Lodhi for Rampur-Bareilly Joint Vidhan Parishad Region, and he would have to go to Bareilly to hand over the papers to Sri Ghanshyam Singh Lodhi. It is stated that Sri Praveen Maheshwari took the nomination papers and election symbol and left the State Party Headquarter at 11.30 a.m. and went to Amausi Airport and at about 1 p.m. he took the helicopter for Bareilly. He reached Bareilly in between 1.30 to 1.45 p.m. where Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly and some other workers of the Samajwadi Party were also present. It was also stated in the affidavit that the documents namely, nomination papers and election symbol which he had brought with him for contesting the election of M.L.C. from the Rampur-Bareilly Joint Vidhan Parishad Region were handed over to Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly Personally and after handing over the papers to him he went back to Lucknow.

In cross-examination by Sri Vinay Kumar Khare, the learned counsel for the petitioner, the witness stated that he had come to Bareilly from Lucknow in a State helicopter. He also stated that when he got into the helicopter, other than Pilot there was no one else with him in the helicopter. When asked as to whether there was really no one with him and that he was alone, the witness stated that there was another person wearing a black cut sleeve jacket in the helicopter but that so far as his party was concerned, he was only one travelling in the helicopter. When asked as to whether he knew the other person who got down with him from the helicopter, the witness replied in the negative. When asked whether this person came with him in the same helicopter from Lucknow, the witness replied in the affirmative. When informed that in the newspaper it was published that in the helicopter along with him. Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav had come with nomination papers and election symbol of the Samajwadi Party for Rampur-Bareilly Joint Vidhan Parishad M.L.C. Constituency, the witness replied that he does not know what information was printed in the newspaper. Seeing the document at page 42 of the list of documents, which is the report of the Reserve Police Line Inspector dated 18.6.2016 provided under the Right to Information Act in which it was mentioned that on 15 February, 2016 the O.S.D. to the Chief Minister had travelled in the State helicopter, the witness replied that he had no knowledge about this matter. When shown the receipt at page 45 of the list of documents, which was in respect of the payment made for hiring the helicopter, the witness stated that payment was made on a back date. When confronted with document at page 44 of the list of documents, which is a letter of the Director, Civil Aviation, provided under the Right to Information Act that the helicopter had been booked on the request of the O.S.D. to the then Chief Minister on his oral order, the witness replied that he was not aware of the government proceedings. He stated that he was posted as an Accountant in the Samajwadi Party Office since 2010 and prior to that from 2000 he was posted as Assistant Accountant.

The opposite party Sri Ghanshyam Singh Lodhi also filed his own affidavit in which he stated that he received a phone call between 11.00 to 11.30 a.m. from Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly that he should immediately come to Bareilly to meet him. He went to meet him in Police Line, Bareilly and reached the gate of the Police Line betwee 1.20 p.m. - 1.45 p.m. where Sri Veer Pal Singh and some other office bearers and workers of the Samajwadi Party were present and there he was informed that in Rampur-Bareilly Local Authority Constituency he had been nominated as a candidate of the Samajwadi Party and that he had received the nomination papers and authorization papers along with election symbol and that he should file his nomination as a candiate of the Samajwadi Party. It was also stated in the affidavit that on the direction of Sri Veer Pal Singh Yadav, District President of the Swamajwadi Party, Bareilly, the opposite party went with him to the Election Office, Bareilly at about 1.50 p.m. from the Police Line, Bareilly on 15 February, 2016 and filed the nomination papers at about 2.28 p.m.. He further stated that corrupt practice as alleged by the petitioner does not fall within the meaning of 'corrupt practice' as contemplated in sub-section (7) of Section 123 of the Act, 1950.

In cross-examination by Sri Vinay Kumar Khare, counsel for the petitioner, when asked that he had concealed the fact in his affidavit that Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav had also come in the helicopter and the witness must have been informed by Sri Veer Pal Singh Yadav that his nomination, authorization and election symbol were being brought by Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav, the witness stated that he had received a phone call from Sri Veer Pal Singh Yadav at about 11.30 a.m. to meet him and he reached Bareilly around 1.45 p.m. Sri Veer Pal Singh Yadav directed him to come straightway to the police line. When asked as to whether when he went to the police line, Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav was already present there the witness replied that when he reached the police line, the helicopter was about to take off. He waited at the gate of the police line for Sri Veer Pal Singh Yadav and did not see any person sitting in the helicopter nor does he know the person sitting in the helicopter. It is only when he came out of the gate that he was informed by Sri Veer Pal Singh Yadav that he has to go to the Election Office with him to file the nomination papers as a candidate of the Samajwadi Party. When asked to identify the documents at page 46, 47 & 48 as being paper cuttings of Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav, the witness replied that he had not seen anybody coming out from the helicopter and that he had only met Sri Veer Pal Singh Yadav who informed him at the gate of the police line that he had been declared a candidate by the Samajwadi Party and thereafter, he sat in the car of Sri Veer Pal Singh Yadav and went to the Election Office to file his nomination. He filled up the papers in the Election Office and filed nomination at about 2.28 p.m. When confronted with the document at page 33 with regard to his reply to the District Magistrate's notice that Lucknow-Bareilly visit on 15 February, 2016 was personal and very confidential, the witness stated that he had received a notice from the District Magistrate, Bareilly upon which he contacted the State Office and contacted Sri S.R. Yadav, the State Secretary and he informed him that the payment for the helicopter had been made by the Party (Samajwadi Party). When asked what he had to say to the notice of the District Magistrate that in the Helicopter Sri Jagdev Singh, O.S.D. to the then Chief Minister Sri Akhilesh Yadav had brought his nomination papers, the witness replied that he had not seen anybody in the helicopter and that his nomination papers were given to him in the Election Office by the District President and he had not been given any paper by any person sitting in the helicopter. When asked whether he had travelled from Rampur to Bareilly on 15 February, 2016 at about 11.30 a.m. and received the nomination papers at about 1.50 p.m. and completed the entire formalities within 38 minutes, the witness stated that he had reached the police line at 1 p.m. and received the papers in the police line from the District President and went with him to the Election Office and thereafter, filed his nomination at 2.28 p.m.

I have heard the learned counsel for the parties and perused the documents filed along with the Election Petition. The document at page 12 of the list of documents is the Form 'BB', which is stated to have been brought by Sri Jagdev Singh by helicopter, which is the authorization letter issued by the Samajwadi Party. Page 14 is the nomination paper of respondent Sri Ghanshyam Singh Lodhi which shows that the same was filed at 14.28 p.m. (2.28 p.m.) on 15 February, 2016 as per endorsement made at the top right hand corner of the document. Page 17 is the authorization letter issued by the President, Samajwadi Party in Form 'AA'. The document at page 26 is the letter issued by the Election Commission under the Right to Information Act. The letter of the Officer-in-Special Duty of the office of Chief Election Officer, Uttar Pradesh dated 2.3.2016 is at page 28 which clearly mentions that there is no bar or constraint on the use of government helicopter other than administrative purpose, however, there is no bar for providing helicopter in case of an emergency. The document at page 29 is a letter written by one Sri Arun Singhal, Chief Election Officer, Uttar Pradesh dated 1.3.2016 addressed to the Principal Secretary, Civil Aviation informing that a complaint had been received that a government helicopter had been utilized for providing the nomination and authorization papers in favour of a candidate of the Samajwadi Party and it was informed that the Samajwadi Party had paid the charges for the helicopter. The query of the Election Officer as to whether such services are provided by the Department of Civil Aviation to all the political parties, page 30 of the list of documents is again another letter dated 1.3.2016 written by the Civil Aviation Department to the Chief Election Officer, Uttar Pradesh informing him that the same reply was given earlier that there is no provision for providing any such service of a government helicopter other than administrative use but there is no bar for providing such facility in case of an emergency. Page 31 is a letter of the Under Secretary addressed to the Chief Electoral Officer, Uttar Pradesh dated 2.3.2016 with regard to the violation of the Model Code of Conduct in the biennial election of the Utttar Pradesh Legislative Council by using a government helicopter. Page 32 which is a letter dated 2.3.2016 is a reply of the Observer Sri Y.E. Kerure stating clearly that the Collector had reported that on 1.3.2016 a helicopter was used for carrying Form 'AA' and Form 'BB' in favour of Samajwadi Party candidate Sri Ghanshyam Singh Lodhi and an amount of Rs.2,21,575/- has been recovered and deposited in the account of the Civil Aviation Department. The next document is a report of the District Magistrate, Bareilly dated 01.03.2016 at page 33 stating in clear terms that the Samajwadi Party candidate Sri Ghanshyam Singh Lodhi had, in reply to the notice to him by the District Magistrate, stated that the helicopter had come to Bareilly on 15 February, 2016 on a very private visit and Rs.2,21,575/- had already been deposited with the Civil Aviation Department. Page 34 of the list of documents is a letter dated dated 27.2.2016 by the Observer Sri Y.E. Kerure to the Senior Principal Secretary, Election Commission of India, New Delhi. Referring to the report of the District Election Officer and Collector, Bareilly that the person who arrived by government helicopter on 15 February, 2016 at Bareilly Police Line and handed over the Form 'AA' and Form 'BB' to the party office bearer which were used for filing of the nomination of Sri Ghanshyam Singh Lodhi, opposite party and that the complaint made in this regard has been found to be true by the Collector, Bareilly.

The document at page 40 is again a letter dated 3.3.2016 which refers to the report of the Collector, Bareilly confirming that the government helicopter was used for carrying Form 'AA' and Form 'BB' in favour of the Samajwadi Party candidate Sri Ghanshyam Singh Lodhi. The letter at page 41 of the list of documents refers to the letter of the Director, Civil Aviation, Uttar Pradesh wherein it is stated that there is no policy for use of government helicopter other than administrative purpose but in case of emergency, there is no constraint on use of government helicopter other than administrative purpose. Page 42 of the list of documents is the reply given by the Inspector, Reserve Police Line dated 18.6.2016 informing that a helicopter had landed in the Police Line, Bareilly on 15 February, 2016 in which the O.S.D. to the then Chief Minister Sri Akhilesh Yadav had come but he was not aware from where the helicopter had come. Page 43 of the list of documents is a letter dated 12.4.2016 written by the petitioner herein seeking information under the Right to Information Act as to who were travelling in the helicopter which landed in the Police Line, Bareilly on 15 February, 2016 and whom the helicopter belong to and what was the cost involved and who paid the cost. Page 44 of the list of documents is the RTI reply dated 28.7.2016 stating that the State helicopter had been requisitioned on the oral order of the O.S.D. to the Chief Minister and that it was not used for government purpose and therefore, the payment was received by cheque dated 15.2.2016 which was deposited in the Treasury for which a receipt dated 1.3.2016 was also issued. A copy of the receipt/challan dated 1.3.2016 for Rs.2,21,575/- in the name of State Bank of India, Lucknow in the account of Civil Aviation Directorate, Lucknow is filed at page 45 of the list of documents. The document at page 46 is the newspaper cutting of 'Amar Ujala' showing the helicopter in the background with one person who is in blue shirt and another white haired person in a black cut sleeve jacket. The document at page 47 is the news clipping of 'Dainik Jagran' dated 19.2.2016 showing the helicopter with a white haired person in a black cut sleeve jacket getting down from the helicopter. The document at page 48 of the list of documents is a newspaper cutting of 'Dainik Jagran' dated 18.2.2016 showing the person in a black cut sleeve jacket getting down from the helicopter and another person in a blue shirt who was sitting inside the helicopter is attempting to get down. Page 49 is the news paper clipping of Amar Ujala dated 17.2.2016 showing the person in a blue shirt and another person in a black jacket. The photograph at page 50 is of the person in the blue shirt holding certain papers in his hand and at page 51 is a photograph which shows the person in the black cut sleeve jacket in the forefront followed by the person in the blue shirt with the helicopter in the background.

Learned counsel for the petitioner referring to the provisions of sub section (7) of Section 123 of the Representation of Peoples Act, 1950 submitted that under sub section (7) of Section 123 of the Act, 1950 the obtaining or procuring or abetting or attempting to obtain or procure by a candidate of his agent or, by any other person with the consent of a candidate or his election agent, any assistance for the furtherance of the prospects of that candidate's election from any person whether or not in the service of the Government and belonging to any of the following classes, namely:-

(a) gazetted officers

(b).......

..........

would be a 'corrupt practice'. In the present case from the affidavit and statements of the witnesses as well as from the photographic evidences what emerges is that Jagdeo Singh, the OSD to the then Chief Minnister, U.P. travelled in the State helicopter alongwith one Praveen Maheshwari. Praveen Maheshwari on his admission is stated to have carried the nomination and authorization papers as well as election symbols from Lucknow to Bareilly in favour of the opposite party to present him as the Samajwadi Party candidate for the MLC seat in the local Bareilly Rampur constituency. This is also confirmed from the statements of the witnesses who have stated that they saw him carrying the papers in his hand. However, what also emerges from the documentary evidence on record is that Jagdeo Singh OSD to the then Chief Minister was the person on whose oral order the Government helicopter was booked as would be evidenced from the information provided under the R.T.I. Act as well as the report of the Electoral Officer and the District Magistrate/Collector, Bareilly and it was the OSD Jagdeo Singh who also travelled alongwith Praveen Maheshwari in the same helicopter. Though the reason given by Jagdeo Singh was that he was coming to Bareilly on a purely private visit to meet one Dr. I.S. Tomar but thereafter there is nothing on record to show that he infact actually met Dr. I.S. Tomar but what emerges from the evidence on record is that Jagdeo Singh returned immediately in the helicopter alongwith Praveen Maheshwari and that Sri Ghanshyam Singh Lodhi, the opposite party and Veerpal Singh Yadav, the District President of the Samajwadi Party who received Praveen Maheshwari and Jagdeo Singh at the police lines immediately proceeded to the election office/Collectorate for filing the nomination papers and there is nothing on record to show that Sri Praveen Maheshwari or Sri Jagdev Singh stayed back in Bareilly or that Jagdeo went to meet Dr. I.S. Tomar. Although the photograph at page 50 of the list of documents may show Sri Praveen Maheshwari holding certain papers in his hands which are not disputed to be nomination papers and authorization letter in favour of Ghanshyam Lodhi, the opposite party as admitted by Praveen Maheshwari himself but it is clear from the evidence on record that the helicopter was booked on the oral order of Jagdeo Singh and that Jagdeo Singh and Praveen Maheshwari traveled on 15.2.2016 by the same helicopter and came to Bareilly and the papers were then handed over to Sri Veerpal Singh Yadav, the District President, Samajwadi Party, Bareilly.

The submission of the learned counsel for the petitioner is that the payment for the said helicopter was made by the Samajwadi Party, therefore, it is quite clear that it was the Samajwadi Party which had booked the helicopter on the oral order of Shri Jagdeo Singh, OSD to the then Chief Minister and it is clearly established that the opposite party had utilized the services of a gazetted officer namely, OSD Jagdeo Singh for bringing the nomination papers and authorization letter with the party symbols for a candidate of the Samajwadi Party in the MLC election for Bareilly Rampur constituency on 15.2.2016 and therefore it is established that he has used corrupt practice as defined in sub section (7) of Section 123 of the Act, 1950. It is not disputed that Sri Ghanshyam Singh Lodhi contested the election as a Samajwadi candidate and also won the election.

Shri Madhur Prakash, learned counsel for the opposite party, on the other hand, referred to the provisions of Section 79 of the Representation of the People Act, 1951 and submitted that clause (b) of Section 79 of the Act, 1951 defines a candidate to mean a person who has been or claims to have been duly nominated as a candidate in any election. Section 79(b) reads as under:

'79(b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election' .

Referring to the provisions of Section 32 of the Act, 1951, which provides for nomination for candidates for election, Sri Madhur Prakash submitted that any person may be nominated as a candidate for election if he is qualified to be chosen to fill that seat under the provisions of the Constitution and of this Act or under the provisions of the Government of Union Territories Act, 1963. He submits that nomination commences with the presentation of nomination papers as provided under section 33 of the Act, 1951 and submits that under section 33 each candidate, shall between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. He therefore submits that a candidate for an election can be said to be a candidate only after he files his nomination papers in the prescribed form and manner as provided under section 33 and prior to the filing of the nomination papers he cannot be said to be declared a 'candidate' for a particular seat. The submission also is that any corrupt practice adopted by a person/candidate prior to filing of his nomination papers would not amount to a corrupt practice for the purpose of section 123 of the Act, 1951.

Sections 32 and 33 of the Act, 1951 read as under :

"32. Nomination of candidates for election. --Any person may be nominated as a candidate for election to fill a seat 6*** if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act 7*** 8[or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be.]

33. Presentation of nomination paper and requirements for a valid nomination. --(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer :

[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:

Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.]

[(1A) Notwithstanding anything contained in sub-section (1 ) for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed :

Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and--

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b ) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.]

(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3 ) Where the candidate is a person who, having held any office referred to in 2 [section 9] has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls :

[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.]

(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.

[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:

Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.]

[(7) Notwithstanding anything contained in sub-section (6 ) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,--

(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;

(g ) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;

(h ) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.

Explanation .-- For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under section 147, section 149, section 150 or, as the case may be, section 151 on the same date.]

Shri Madhur Prakash has also referred to the provisions of sub section (8) of section 36 of the Act, 1951 which provides that immediately after all the nomination papers have been scrutinized and decision accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates i.e. to say that the candidates whose nomination have been found valid and affix it to the notice board. Section 36(8) of the Act, 1951 reads as under:

"36(8) immediately after all the nomination papers have been scrutinized and decision accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates that is to to say that the candidates whose nomination have been found valid and affix it to the notice board."

He therefore submits that section 36(8) of the Act, 1951 read conjointly with section 32 and 33 of the Act, 1951 would lead to the only conclusion that a candidate for election can be said to be a candidate as such only when he files his nomination papers according to the procedure laid down in Section 33 of the Act, 1951 and his nomination papers are then scrutinized and if found to be valid are thereafter notified and affixed to the notice board of the returning officer.

From a reading of Section 32 of the Act, 1951, it is seen that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill a seat under the provisions of the Constitution and the Act or under the provisions of the Government of Union Territories Act, 1963 but merely become eligible does not make a person a candidate. Section 33 of the Act, 1951 lays down the procedure for presentation of nomination paper and the requirements for a valid nomination. It is only when the procedure laid down in Section 33 is completed by a person qualified to be chosen to fill the seat and such nomination paper completed in the prescribed form and signed by the candidate by an elector of the constituency as proposer is filed either in person or a proposer between the hours of 11 o'clock in the forenoon and 3 o'clock in the afternoon that a person is said to be nominated as a candidate.

The matter does not rest there but it also requires compliance of the procedure laid down in Section 36 sub-section (8) which is quoted hereinabove and which requires the returning officer to scrutinize the nomination papers accepting or rejecting the same and thereafter, the returning officer shall prepare a list of validly nominated candidates and the candidates whose nomination have been found valid shall be affixed to his notice board. Therefore, merely being declared a candidate by a political party prior to filing of the nomination paper under Section 33 of the Act, 1951, a person cannot be said to be a candidate nominated.

Sub-section (b) of Section 79 of the Act, 1951 further defines a 'candidate' to mean a person who has been or claims to have been duly nominated as a candidate in any election. The language of sub-section (b) of Section 79 leaves absolutely no doubt that a person seeking election to a seat can be said to be a 'candidate' only if he has been duly nominated or claims to have been duly nominated which means that the procedure laid down in Section 33 has been complied with by a person and only then such a person can be said to be a candidate at an election.

My views are supported by the judgement of the Supreme Court in the case of Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and other reported in (1994) 2 SCC 392. In this judgement the Supreme Court has held that sub sections of Section 123 of the Act, 1951 refers to the acts of a candidate or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition completely excludes the acts by a candidate upto the date he is nominated as a candidate. Paragraphs 6 and 8 of the said judgement are extracted below :

"6. This, we are afraid, is not the correct perception of the matter. The view fails to take note of and give effect to the substitution of the definition of the expression "candidate" in Section 79(b). All sub-sections of Section 123 of the Act refer to the acts of a 'candidate' or his election agent or any other person with the consent of the candidate or his election agent. The substituted definition completely excludes the acts by a candidate up to the date he is nominated as a candidate. Shri Sanghi, therefore, asks us to take this position to its logical conclusions and strike out these allegations in the election petition.

7. ............................

8. We hold that all the averments in paragraphs I to 20 of the memorandum of election petition insofar as they refer to a period prior to April 23, 1991 cannot amount to allegations of corrupt practice. But on the question whether they are relevant and admissible for other purposes for the reasons submitted by Shri Nariman we abstain from expressing any opinion. This aspect did not engage the attention of the High Court and was not considered by it. It is for the High Court to consider them at the appropriate time. We, therefore, declare that the allegations in paras I to 20 relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice proprio vigore."

Shri Vinay Khare, learned counsel for the petitioner was confronted with the judgement of the Supreme Court in relation to which he referred to the judgement of the Supreme Court reported in AIR 1955 SC 775 S. Khader Sheriff Vs. Munnuswami. I have gone through the said judgement and find that the judgement in the case of S. Khader (Supra) was a judgement prior to the amendment in section 79(b) of the Act, 1951 and, therefore, will have no application in the changed circumstances as they stand after the amendment to Section 79 by the amending Act of 1975 whereby clause (b) was introduced retrospectively.

Therefore on a conspectus of facts and the law laid down by the Supreme Court in the case of Mohan Rawale the acts alleged by the petitioner to constitute corrupt practice in sub section (7) of Section 123 of the Act, 1951 were committed prior to the opposite party filing his nomination papers before the returning officer, and prior to filing of his nomination he could not have been said to be a "candidate nominated" nor was his name published in the list of valid candidates and therefore, such acts would not render the election of the opposite party invaid.

For reasons aforesaid I do not find any merit in the election petition and the same is accordingly dismissed.

Dated: 31st May, 2019

o.k./nd