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PETITIONER: JOSHBHAI CHUNIBHAI PATEL

       Vs.

RESPONDENT: ANWAR BEG A. MIRZA

DATE OF JUDGMENT: 13/09/1968

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

CITATION:  1969 AIR  586            1969 SCR  (2)  97  CITATOR INFO :  R          1975 SC 667  (11)  RF         1976 SC1187  (7)  R          1984 SC1516  (5,6)  F          1987 SC1577  (26)

ACT: Representation   of  the  People  Act,  1951.   s.   123(5)- Ingredients  of the corrupt practice that must  be   proved- Prayer  for  general recount without pleadings on  which  it could rest-if can be granted.

HEADNOTE: The appellant challenged the respondent’s election  to   the Gujarat State Legislative Assembly in February 1967, on  the ground,  inter alia, that he had committed corrupt  practice under  s.  123(5) of the Representation of the  People  Act, 1951.   It was alleged that a car was hired or  procured  by the  returned candidate and on the date of the poll  it  was used  for  free conveyance of three ladies  to  the  polling booth.   The  High Court dismissed  the petition.    In  the appeal   to  this Court it was contended that  an  inference arose  in  the present case that the ladies must  have  been taken  free to the polling booth and reliance was placed  in this  respect on certain findings given by the  High  Court. There  was also a prayer that a general recount was  wrongly disallowed  by the High Court and that it should be  ordered in the present appeal. HELD:  Dismissing the appeal:       (i)  S.  123(5) requires three things, (1)  hiring  or procuring of a vehicle; (2) by a candidate or his agent etc. ’and (3) for the free conveyance of an elector. [102 B-C]       In the present case there was proof that the  vehicles were  procured;  there  was also  proof  that  a  particular vehicle  was  in fact used for the conveyance of  the  three lady  voters to the polling booth; what was not  proved  was that  there  was  free  conveyance of  the  ladies  in  that vehicle.  The burden of establishing that this fact  was  on the appellant-petitioner and it was not impossible, of proof because  the  owner of the car or the driver or  the  ladies could  have  been  examined to show  that  the,  ladies  had traveled free in the vehicle.  in the absence of this  proof the ingredients of the section had not been established  and

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there  was therefore no room for interference with the  High Court’s decision though based on slightly different reasons. The High Court’s finding that the ladies must have travelled free  was  a  mere surmise because  there  was  no  evidence whatever on this part of the case. [100 H, 102 G, H]       (2) A scrutiny of the pleadings showed that there  was no  plea on which the prayer for a recount could  be  rested though  in the relief clause there was mention of a  general recount.    The   pleas  concerned  the   votes   caste   by impersonators  ’and rejected votes and as these had  already been considered, there was no room for a further count. [103 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 788 of 1968.        Appeal  under section 116-A of the Representation  of the      People. Act. 1951 from the judgment and order dated October  17, 18; 1967 of the Gujarat High Court in  Election Petition No. 5 of 1967. 98 Bishan Narain and B. Datta, for the appellant,     S.V.  Gupte,  M.l. Patel,  R.P. Kapur,  M.N. Shroff  for l. N. Shroff, for the respondent. The Judgment of the Court was delivered by     Hidayatullah, C.J.  This is an appeal from the  judgment dated 17/18 October, 1967 of the High Court of Gujarat in an election  petition  filed  by the  present  appellant.   The election  petition  was  dismissed  by  the  judgment  under appeal.     The  matter  concerns the Petlad constituency  in  Kaira District  from  which election was to be held to  the  State Legislative  Assembly Gujarat at the 4th  General  Election. The  appellant was a candidate for the Swatantra  Party  and the  respondent  a .candidate for the Congress  Party.   The poll  was  held on February 21, 1967 and the result  of  the election was declared .on February 24, 1967.  The  appellant secured   23,795   votes and the  respondent  23,981  votes. 1806  votes  were  declared  invalid.   The  respondent  was therefore declared elected to the seat.     The  election  petition set out a number of  grounds  on which the election of the returned candidate was  challenged as  void  under the Representation of People  Act.   We  are concerned  in this appeal with only one such ground.   There is  also a prayer in the appeal that a general re-count  was wrongly  disallowed  by the learned Judge  who  decided  the election  petition and that it should be  ordered here.   We shall come to the second ground in due course.     As  regards the first ground, the contention was that  a car  No.  GJH  1.08 was hired or procured  by  the  returned candidate  and  on  the day of poll, it was  used  for  free conveyance  of  three ladies to the polling booth.   In  the election  petition, the election petitioner had stated  that the  returned candidate had made extensive use of hired  and procured  vehicles  for the purpose of  free  conveyance  of voters  to and from the various polling stations.   Although another  instance  was cited in the election  petition,   no evidence  was led to support that or any other  instance  of the user    of this or other vehicle.  The whole of the case therefore rested on the use of vehicle No. 108 and also  its use  on  one occasion only, namely, when three  lady  voters were said to  have  been brought to the polling booth in it. According  to the election petitioner, he was in the  Sayagi Hospital  compound wherein two polling booths Nos. 8  and  9

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were  situated.   He  was   then  accompanied  by  Suryakant Manilal  Shah  and Somabhai Chhotabhai  Kachhia.   At  about 12.30 P.M., a taxi bearing No. GTG 9021 came to. the gate of the  hospital  compound,  and a lady got  out  of  it.   The election  petitioner  alleges  that  he  immediately   asked Suryakant Manilal Shah to request the Presiding Officer of 99 one of the booths to come out.  Presiding Officer B.M. Bhatt came  to  the gate and saw the lady who had got out  of  the taxi. The lady had in her hand a voter’s identity card  with the  congress  symbol  and her No. was  Serial  No.  535  of Electoral  Unit  26/100 belonging to Ward No. 1  of  Petlad. This part of the allegation in the election petition was not used  as  evidence  of  free  conveyance  of  voters.   This incident was recited as furnishing the immediate  background of  what followed. The allegation in regard to car  No.  108 starts  from this point.  The ellegation is that  while  the election petitioner was complaining to the Presiding Officer Bhatt  about the other car, car No. 108 came to the gate  of the compound and the petitioner along with his companion and Bhatt were standing there.  Three ladies got out of this car bearing identity cards from the congress  party  and   their numbers  were  426, 424 and 386 of  electoral  unit  28/100. Bhatt  then told the election petitioner that  these  voters would  go  to the other both and that he was  not  concerned with  that  both.  The  election  petitioner  says  that  he followed  the three voters to the next booth and called  out the presiding officer K.D. Trivedi and pointed out the three voters to him stating that they were brought by car No. 108. He  asked him to. verify this from Bhatt.  The complaint  of the election petitioner was then recorded by Trivedi and  it appears from the evidence that he also questioned Bhatt  who endorsed  the statement of the election petitioner  that  he had seen them get out of the car.      In  support of this case witnesses were examined.   The net result of the examination of these witnesses established the  fact  that  the  ladies came by this  car  and  that  a complaint followed. However no attempt was made to establish that  these  ladies had come in the car free.  We  need  not traverse   the  entire  evidence  to  establish  the   above conclusions   which  in  our  opinion.  are  quite   clearly demonstrable  from the evidence.  There is evidence to  show that the car did come, that the three ladies did get out  of the same and went to polling booth No. 9 and also that  they were  holding identity cards issued by the  Congress  party. Presumably  therefore  they  were brought in  this  car  for voting on behalf of the Congress.      Attempt  was then made to establish connection  between the  returned candidate and this car.  On this part  of  the case  testimony  of  the returned  candidate  was  extremely unsatisfactory. He first said that three cars were placed at his  disposal by the congress party between January  15  and January 31, 1967.  In another place he said that he had been given only two cars. Later he said that two of the cars were withdrawn from him and that after the withdrawal of the cars he had no other car from the congress party.  He denied  the use of the cars contrary to 100 the  evidence of the purchase of petrol and also denied  any connection  between  himself  and one person  by  name  H.I. Pathan,  who  had written requisition for  petrol.   It  was however proved by cross-examination that this H.I. Pathan is probably  one of his nephews, a fact which he  denied  also. It  appears  that  before this car was  used,  the  returned candidate  opened  a  new account in the  name  of  Mahendra

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Electric Company C/o Anwarbeg and petrol was bought for this car  along with other cars right upto 21st February in  the. account  of this Mahendra Electric Company and that was  the returned  candidate  himself.  Since  the  requisitions  for petrol  were issued by H.I. Pathan, the  returned  candidate was at great pains to deny any connection with him and  even went  to  the length of denying the real names  of  his  own nephews.  However, this only proved that he had procured the car No. 108 from the Congress party or somebody else for his own  use during the election propaganda and at the  time  of the  poll.  It also proved that he had purchased petrol  not only previously but also. on the day of poll because entries in respect of this car existed in the accounts of the petrol dealer’s  firm on 18, 19, 20 and 21 February.  The  evidence also proved that the three ladies did travel by this car  on the  date  of  poll and got out of it at  the  gate  of  the hospital compound where the polling booth was situated. The  question  is whether all this evidence  even  taken  in favour  of  the  election petitioner  goes  to  satisfy  the requirement   of    the   law  under  s.   123(5)   of   the Representation of the People Act. That section contains many ingredients and to them  we  shall come presently; one  such ingredient  is  that  the  car must be  used  for  the  free conveyance of the voters to the poll.  The learned Judge who heard the case gave a finding that the car was so used, that is to say, the three Indies were carried free to the  booths in  this car.  There is no evidence to establish this.   The owner  of  the car, the driver and the electors  namely  the three ladies were not examined and there is nothing to  show whether  they  had  travelled  free  or  had  paid  for  the privilege.     Mr.  Bishan Narain argues in the  alternative,  firstly, that an inference arises in the present case that the ladies must  have  been taken free and he refers  to  the  findings given by the High Court on this part of the case.  Next,  he argues that this is not the requirement of s. 123(5) and  he interprets  the  section  so as to save his  case  from  the operation of that section.     As regards the finding of the High Court that the ladies must have travelled free, we can only say that it is a  mere surmise  because there is no evidence whatever on this  part of  the  case.   Mr.  Bishan Narain  stated  that  the  best evidence could come from the returned candidate and that his client was not required to prove 101 a  negative.   In  our  opinion, the  burden  was  upon  the election  petitioner  to establish this fact, if  it  was  a requirement  of  law. We do not think that it was  an  utter impossibility  because the owner of the car, the  driver  or one  of the ladies could have been questioned about  it  and something  would have then come in evidence.  Since no  such attempt  was  made  there is nothing on  which  we  can  say whether  the  ladies  were brought free or  on  payment  and regard being had to the strictness of the law on the subject of  corrupt practice we must hold in favour of the  returned candidate that the requirements of the section have not been met.      This  brings us to the examination of s. 123(5) with  a view  to  finding out what are its  requirements.   We  have already   indicated  that  in  our  opinion   the   election petitioner  must prove in addition to the other  ingredients of the section that the vehicle was used for free conveyance of voters which ingredient we have stated was not  attempted to  be  established  in the case.   Section  123(5)  of  the Representation of People Act reads as follows:

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                     "The  hiring or procuring, whether  on               payment or otherwise, of any vehicle or vessel               by  a candidate or his agent or by  any  other               person with the consent of a candidate of  his               election agent, or the use of such vehicle  or               vessel for the free conveyance of any  elector               (other than the candidate himself, the members               of  his  family or his agent) to or  from  any               polling station provided under section 25 or a               place  fixed under subsection (1 ) of  section               29 for the poll:                    Provided that the hiring of a vehicle  or               vessel  by  an       elector  or  by   several               electors   at  their  joint  costs   for   the               purpose  of conveying him or them to and  from               any  such      polling station or place  fixed               for the poll shall not be      deemed to. be a               corrupt  practice  under this  clause  if  the               vehicle  or  vessel so hired is a  vehicle  or               vessel  not  pro-      pelled  by   mechanical               power:                 Provided further that the use of any  public               transport vehicle or vessel  or any tramcar or               railway       carriage by any elector  at  his               own  cost for the purpose      of going to  or               coming from any such polling station or  place               fixed for the poll shall not be deemed to be a               corrupt practice under this clause.                      Explanation:   In  this   clause,   the               expression "vehicle" means any vehicle used or               capable of being used for the purpose of  road               transport  whether propelled by     mechanical               power  or  otherwise  and  whether  used               for  drawing other vehicles or otherwise." 102 This  section  defines one of the corrupt practices  and  it consists  of the hiring and procuring whether on payment  or otherwise of any vehicle.  This hiring and procuring must be by a candidate or his agent or by any other person with  the consent  of  the  candidate or his election  agent  and  the hiring  according  to  the  section must  be  for  the  free conveyance  of any elector other than the candidate  himself or  members  of  his family or his agent  to  and  from  any polling  station.   It  will,  therefore,  appear  that  the section requires three things, (1 ) hiring or procuring of a vehicle;    (2) by a candidate or his agent etc. and (3) for the free conveyance of an elector.  It will be noticed  that the section also speaks of the use but it speaks of the  use of such vehicle which connects the two parts, namely, hiring or procuring of vehicle and the use.  The requirement of the law  therefore is that in addition to proving the hiring  or procuring  and  the  carriage of electors to  and  from  any polling  station,  should also be proved that  the  electors used the vehicle free of cost to themselves.  The contention of Mr. Bishan Narain that the requirement of free conveyance is not necessary is therefore not borne out by the words  of the  section.  The two provisos also. prove the same  thing. The  first proviso provides that it would not be  a  corrupt practice  for any elector to hire a vehicle for  himself  or even a group of electors to join in hiring a vehicle and the second  proviso  lays  down  that  the  use  of  any  public transport  vehicle   or  vessel or any  tramcar  or  railway carriage by any elector at his own cost is  not  a   corrupt practice.   In  order  words  the electors, if they have  to perform  the journey by hired vehicle must pay for its  hire

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themselves.  They cannot be taken in a hired vehicle free of costs to themselves.  In the same way if a procured  vehicle is used, it must not be used for free conveyance of  voters. The  journey  of the elector must be paid for by him.  If  a candidate hires or procures a vehicle for free conveyance of the  electors  that also is perhaps a corrupt  practice  but that aspect need not be considered here.  The language seems capable  of that interpretation though we express  no  final opinion.   In the present case there is proof that the vehicles  were procured;  whether they were supplied by the Congress  party or  were procured from private parties makes no  difference. There  is also proof that the vehicle numbered 108  was,  in fact, used for the conveyance of three lady voters.  What is not proved  is  that there was free conveyance of the ladies in  that  vehicle.  Mr. Bishan Narain contends that this  is very  difficult of proof but as we stated earlier it is  not impossible  of  proof because the owner of the  car  or  the driver  or the ladies could have been examined to show  that the  ladies had travelled free in the vehicle.  This is  not proved and therefore the ingredients of the section have not been established.  In our opinion therefore there is no room for 103 interference  although, our reasons are slightly   different from those of the High Court.     was  next contended that a general recount was  demanded in  the  case  and  has  been  wrongly  refused.   We   have scrutinized  the  pleadings on this point carefully  and  we find  that  no  plea on which it could be  rested  was  made although in the relief clause there is mention of a  general recount.    The   pleas   concerned  the   votes   cast   by impersonators   and  rejected   votes.   These   have   been considered  already  and  therefore there  is  no  room  for further  count.   On the whole therefore we are  of  opinion that  the judgment under appeal cannot be  interfered  with. The appeal fail and will be dismissed.  In view however,  of the prevarications of the returned candidate which were  not attempted  to be explained by his learned counsel we are  of opinion  that we should not allow him any costs either  here or m the High  Court  and  we order accordingly. R.K.P.S.                                              Appeal dismissed. 104