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PETITIONER: OM PRABHA JAIN

       Vs.

RESPONDENT: ABNASH CHAND & ANR.

DATE OF JUDGMENT: 07/02/1968

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. BACHAWAT, R.S.

CITATION:  1968 AIR 1083            1968 SCR  (3) 111  CITATOR INFO :  R          1971 SC 241  (9)  R          1971 SC2025  (56)  R          1975 SC1612  (50)  F          1975 SC1634  (8)  F          1976 SC  27  (14)  R          1980 SC 701  (14)

ACT: Election--Minister making discretionary grant--When  amounts to corrupt practice.

HEADNOTE: The  State  of Haryana came into existence On  1st  November 1966.   The  Cabinet  placed certain sums of  money  at  the disposal of the ministers, one of whom was the appellant  to be used at their discretion for purposes of public  utility, for the benefit of the general public and for the uplift  of backward communities.  The money had to be disbursed  before 31st  March 1967 through Panchayat, Municipal or  Government agencies.   The  appellant sanctioned certain  payments  for building  two dharmashalas in two wards of  a  Municipality. Long after the sanction, her candidature for election to the Vidhan  Sabha of the State was recognised by her  party  and she  stood for election from a constituency  which  included these two wards.- She was elected, and-some time later,  the money was made available to the wards though the  recipients were  writing  that the money should be  made  available  at once.  The first respondent challenged the election alleging corrupt  practices  and later amended  the  petition  giving better particulars.  The pleas in the petition  contradicted each  other,  the  evidence tendered at  the  trial  of  the petition  contradicted  the pleas, and  the  witnesses  were found  to  be thoroughly unreliable.  In spite of  this  the petition  was allowed on the ground that  the  circumstances showed  that the were in fact paid to bargain for votes  and to influence the voters in favour of the appellant. In appeal to this Court, HELD  : The action of the appellant could not  be  construed against  her.   It was done in the ordinary  course  of  her duties  as Minister and there was no evidence that  it  was, directly  or indirectly, part of a bargain with the  voters. No  hurry  to  make the money available  to  the  recipients

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emanated  from the appellant.  It was only the  persons  who were to benefit by the discretionary grant that were anxious to lay hands on the money, as soon as possible, so that  the grant  might not be cancelled later by a change of  attitude caused  by the election going against the particular  party. [117 H; 118 A--C] Ghasi Ram v. Dal Singh & Ors. [1968] 3 S.C.R. 102 followed. Bhagwan Dutta Shastri v. Ram Ratanji Gupta, A.I.R. 1960 S.C. 200 and Kandaswami v. Adityan, 19 E.L.R. 260, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1862 of 1967. Appeal  under s. 116-A of the Representation of  the  People Act 1951 from the judgment and order dated November 16, 1967 of  the Punjab and Haryana High Court in  Election  Petition No. 19 of 1967. 112 A. K. Sen, B. Dutta, P. C. Bhartari, M. L.  Aggarwal and J. B.  Dadachanji, for the appellant. S. K. Mehta and K. L. Mehta, for respondent No. 1 The Judgment of the Court was delivered by Hidayatullah,  J.  This  appeal  is  directed  against   the judgment  of  the  High  Court  of  Punjab  and  Haryana  at Chandigarh,  November 16, 1967 by which the election of  the appellant  to  the Vidhan Sabha of Haryana  State  from  the Kaithal  constituency  has been declared to  be  void.   The election was held on February 19, 1967 and the result of the pool was declared on February 22, 1967.  The appellant had a margin  of nearly 2000 votes. over the first respondent  who was  the closest rival.  One other candidate had also  stood but  we  are not concerned with him in  the  present  appeal since he has not shown any interest in it.  He secured  less than 1000 votes and forfeited his security. The election petition was based upon allegations of  corrupt practice against the successful candidate.  The gravamen  of the  charge was that she as a minister in the Government  of Mr.  Bhagwat Dayal Sharma used certain discretionary  grants to bribe the voters of her constituency and in particular by paying  two sums, of Rs. 2,000 for the construction  of  two dharamsalas  ,for  the Kumhar and the  Sweeper  Colonies  at Kaithal.  There were other allegations also against her  but as they have been found against the election petitioner  and have not been brought to our notice we need not say anything about  them.   The  learned Judge  who  tried  the  election petition  did  not  accept  the  evidence  tendered  by  the election  petitioner to prove the corrupt practice  outlined above  but held on a general appraisal of the  circumstances of the case that these sums were in fact paid to bargain for votes  and  to  influence  the  voters  in  favour  of   the appellant.  We shall now give a few facts of the case before stating our conclusion. The  election petition was filed on April 7, 1967.   It  was later  amended and better particulars were supplied on  July 29, 1967.  In the original election petition as filed by the election  petitioner it was stated that a sum of  Rs.  2,000 from  the discretionary giant of the appellant was  paid  to the Harijans of Keorak Gate, Kaithal for the construction of a dharamsala.  The allegation then was that in the beginning of  January  1967  the  Harijans  were  approached  by   the appellant  and  were  asked to vote for  her.   They  flatly refused to vote for her.  Thereupon she promised to  provide funds  for the construction of a dharamsala in  their  basti and  tempted by this offer they agreed to vote for her.   In

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regard  to the other discretionary grant it ’was’ stated  in the  original petition that the Kumhar voters who reside  in Dogran Gate.  Kaithal, were also 113 approached,by the appellant in the beginning of January 1967 and  were asked to vote for her.  When they refused to  vote she  promised  them  a sum of Rs.  2,000  for  building  the dharamsala  in their locality.  It was further  pointed  out that the first sum of Rs. 2,000 was paid through the  Deputy Commissioner,  Kamal, vide his Memo No. 78-BP-III/67/335  of January  12, 1967.  The second payment was also made on  the same  date  through the Deputy  Commissioner,  Karnal,  vide Development Department Memo No. 47-BAP-III-67/326. The affidavit in support of the election petition was  sworn by the election petitioner on information supplied by others and believed to be true.  It was stated in the  verification clause  that.this information was received "from my  workers and believed to be true". On  an  objection being raised that the particulars  of  the corrupt  practice  were not adequate and on the  other  hand vague  and that the affidavit did not disclose  the  persons from whom the information was derived the Court ordered that better particulars be supplied and a fresh affidavit  filed. The amended election petition was then filed in July,  1967. In  this election petition a change was introduced.  It  was stated that on December 22, 1966 the Harijans were called to a  Canal  Rest  House  through  one  Om  Prakash  Shorewala. President  of  the  Municipal  Committee,  Kaithal.    Other members  of  the  Municipal Staff  including  the  Executive Officer Bhalla were also present.  Among those who came were one  Khaki Ram, Banwari Lal and one Harijan Lamberdar  whose name  was  not  given.  In the  presence  of  these  persons request Was made to the Harijans to vote for the  appellant, and when they refused to do a sum of Rs. 2,000 was  promised from the discretionary grant, and on this offer the  Harijan voters consented to .vote for the appellant.  It was further alleged that this. amount was ultimately paid to Khaki  Rain and Banwari Lal through Shri Om Parkash Shorewala (R.W.  4). As regards the second charge it was stated that on  December 29. 1966 the Kumhar voters were summoned- to the Canal  Rest House  and three persons, Thakru, Attra and Lilloo  came  as the  representatives  of  the Kumhar  community.   The  same procedure, viz., asking them to vote for her candidature was followed  by the appellant and on their refusal to do  so  a sum  of Rs. 2,000 was promised to them for the  construction of  a  dharamsala in their basti at Dogran  Gate.   Kaithal. This induced them to change their views.  The affidavit  was also corrected. It was stated that the allegation was  based upon  information received from Pandit Kailash Chander,  s/o Pandit Hari Ram of Kaithal and Ch.  Inder Rai,  ex-Municipal Commissioner, Chandena Gate Gamri, Kaithal. 114 In  answer  to  the amended election  petition  the  written statement  added that the allegation was a pure  concoction. The   appellant   pointed  out  that  the  grant   for   the construction of the dharamsalas was made by the appellant as far  back as December 19, 1966 and that the allegation  that it  was  the result of a bargain either on  December  22  or December 29, was a pure fiction. The  election  petitioner examined fourteen  witnesses.   We are,  however, not concerned with all of them  because  they are  connected  with the other allegations in  the  election petition.  Witnesses bearing upon this case were only  four. They  were  Gurbax Singh (P.W. 1), who only  proved  certain documents,  P. N. Bhalla (P.W. 3), the Executive Officer  of

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the  Municipality, Thakru (P.W. 8), whose name  has  already been  mentioned  by  us and  Abnash  Chander,  the  election petitioner.  In the evidence a change was again  introduced. It  was  attempted to be proved that the bargain  which  had been  referred  to in the election petitions  actually  took place  on December 3, 1966.  This time it was affirmed  that the  Kumhars  and  the Sweepers were  called  together.   An objection  was  taken  before the learned  Judge  that  this evidence could not be considered because the plea was  quite different.  The learned Judge ruled that the objection would be decided later.  It appears that the learned Judge did not put  too much emphasis on the change of pleading  presumably because  he  found  the evidence to  be  unsatisfactory  and unreliable.  On the side of the appellant were examined  one R.  N.  Kapur  (R.W.  1),  the  personal  Secretary  of  the appellant  who  proved her tour programme to give a  lie  to some  of the allegations in the election  petition.   Attroo (R.W.  3),  who  was  said  to  have  been  present  at  the conferences,  Om Parkash Shorewala (R.W. 4),  the  Municipal President,  Mr.  Bhagwat Dayal Sharma (R.W.  5),  the  Chief Minister in whose Ministry the appellant was working as  the Finance Minister and the appellant herself.               It  is not necessary to go largely  into  what               the  witnesses said because the learned  Judge               himself observed as follows               "Whereas according to the respondent the  fact               of the grant is not disputed, but it is denied               that  the grant was made in  consideration  of               these  communities  voting for  her.   If  the               matter  had  remained at this  stage  and  the               executing    agency    (the     Sub-Divisional               Magistrate) had disbursed these grants I would               not  have  been prepared to  accept  the  oral               evidence  regarding the bargain which  led  to               the grants.  But the manner, how the money was               realised and disbursed, lends ample support to               the evidence that the bargain was struck." It  is clear that the learned Judge was of the opinion  that the evidence led to prove the conference and the bargain  at the con- 115 ference was unacceptable.  He, however, accepted it  because it   was   supported  by  circumstantial  details   of   the withdrawing of the money which was sanctioned; but for  this the  learned  Judge  would not have  accepted  the  election petition. We  shall glance at this evidence which has been led in  the case.   As  pointed out above the only witnesses  from  ’the conference  are Thakru (P.W. 8) and Bhalla (P.W.  3).   With regard  to  Thakru it is sufficient to point  out  what  the learned  Judge himself said at the end of the deposition  of Thakru  :  "The testimony of, this witness has  not  at  all impressed  me.  I will place no reliance whatsoever  on  his testimony."  In  view of this observation  of  the  learned’ Judge  we  think  we are entitled to  ignore  his  testimony altogether.   As regards Bhalla (P.W. 3), he seems  to  have deposed  not only in. respect of these two grants but  every allegation  made in the election petition.  Mr. A.  K.  Sen, for  the  appellant, very pertinently described  him  as  an omnibus  witness.   His  evidence  is  not  convincing.   It appears  on  the record of this .case (and it  was  in  fact admitted  by  Bhalla) that the appellant  had  taken  action against  him in respect of a house which fell down owing  to the negligence of the Municipal Authorities.  It appears  to us  that  Bhalla  was hostile to the  appellant.   There  is

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enough material to show that he was trying to get even  with the  appellant for her action in putting the blame upon  him for  the falling down of a house from seepage of water  from the  municipal mains.  The learned Judge did not  place  any direct  reliance upon Bhalla’s testimony.  As we have  shown above,  if it had not been for the  circumstances  attending the grant the learned Judge himself would have discarded his testimony.  We must, therefore, proceed with extreme caution in dealing with Bhalla’s evidence in the case. It may be pointed out here that in the election petition  as well as in the evidence it was stated that the Harijans  and Kumhars  were  summoned  through Bhalla  and  the  peon  was ordered by Om Prakash Shorewala to call the leaders of these two  communities to the Canal Rest House: Sat  Prakash,  the peon  was not examined in the case.  Of the persons  present on the first occasion, viz., Banwari Lal, Khaki Ram,  Lilloo and Attra and the Harijan Lamberdar who was not even  named, none  was  examined except Attroo and  Thakru.   Attroo  was examined  by  the appellant.  We have shown above  that  the learned  Judge  placed no reliance upon Thakru’s  word.   He made  a  similar remark about Attroo also so that  the  case really comes to this that there is only the evidence of  the parties  and such other evidence as was furnished by  Shore- wala  and  Bhalla.  The persons from  whom  information  was derived as stated in the- verification of the affidavit were not  called  as  witnesses.  We  have  shown  that  Bhalla’s testimony  must not be taken on its face value., Om  Prakash Shorewala was support- 116 ing the election petitioner but even so his evidence goes in favour Of the  appellant.  The fact, ’however. remains  that the  .  election petitioner himself was  fumbling  with  the facts and was not able to state quite categorically when the conferences took place and on what date and at which  place. He changed the dates as more information came to hand.  This was  not information about the conferences but the  date  on which  the grant was sanctioned and the dates on  which  the appellant  could be expected to have held  the  conferences. In  these circumstances, we are satisfied that in this  case the oral evidence is practically non-existing. Mr.  Mehta, who argued the case on behalf of  the  answering respondent, stated that it was not necessary at all to  give the  facts  about  the conferences and that  the  charge  of bribery could be proved even without the details of how  the bribe came to be given.  He relied upon the judgment of  the Madras  High  Court in Kandaswami v. S. B. Adityan  for  the proposition  that  a bribe is a bribe although the  date  on which  it is given may not be capable of being specified  if it  could be established otherwise that the. money  was  in: fact paid; and he further relied on a judgment of this Court in  Bhagwan  Datta Shasri v. Ram Ratanji Gupta &  Ors.  (1). that  even  if the full particulars be  not  given  evidence might  still be led to determine whether a corrupt  practice had in fact taken place or not.  We need not decide in  this case  what  the  pleadings and  the  proof  should-be.   The ordinary rule of law is that evidence is to be given only on a  plea  properly raised and not in contradiction.  of:  the plea.   Here the pleas were made on two different  occasions and  contradicted  each  other.   The  evidence  which   was tendered  contradicted  both the pleas.  The source  of  the information  was  not  attempted  to  ’be  proved  and   the witnesses  who  were  brought were found  to  be  thoroughly unreliable.   In  these circumstances we do not  propose  to refer to the evidence in this judgment any- more.. This brings us to the question whether the circumstances  of

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this  case  clearly demonstrated that there must  have  been some kind of bargain before the grant was made and that this bargain  was with a view to inducing the voters  to  support the candidature of the appellant.  In Ghasi Ram v. Dal Singh &  Ors.  (3)  in  which  the  judgment  of  this  Court  was pronounced  today,  the  law relating  to  corrupt  practice specially  in the matter of giving of  discretionary  grants has  been  considered and stated.  It has been  pointed  out that  a  Minister  in the discharge of  his  duties  may  be required  to do. some acts of administration  including  the granting of money for the uplift of certain communities  and this  action of the Minister is not to be construed  against him unless it can be established (1)  19 E.L.R. 260. (3)   [1968] 3 S.C.R. 1’ 2. (2)   A.I.R. 1960 S.C. 200. 117 that there ’was a bargain with the voters for getting  their assistance at the election.  Since the oral evidence in this case is non-existing we  must now look at the  circumstances whether  this  conclusion which has been drawn by  the  High Court can be irresistibly reached. The State of Haryana came into existence on November 1,1966. Immediately  afterwards the Cabinet placed certain  sums  of money  at the disposal of, the Chief Minister,  the  Cabinet Ministers,  Ministers for State and Deputy Ministers, to  be used at their, discretion for the uplift of the communities. A sum of Rs. 50,000 was placed in the discretionary grant of a Minister and the appellant as the Finance Minister in  the Ministry of Shri Bhagwat Dayal Sharma was required to  spend this money.  The money had to be disbursed before the end of the  Financial Year, that is to say, before March 31,  1967. It is reasonable to think that there must have been  several demands in this State from the various community centres for their  own  uplift and they must have been  clamouring  even before   for  money  for  the  establishment   of   schools, hospitals, supply of water, and so on.  The policy statement attached  to the sanction of the discretionary grant  stated the purposes for which the money could be utilised.  It  was stated  quite clearly that the money should not be given  to any  private  person  ’but  should  be  given  through   the Development Commissioner for purposes of public utility  and for benefit of the general public and that the execution  of the  works should be through certain named agencies such  as Zilla   Parishad,   Panchayat   Samities,   the   Panchayats concerned,   the  Public  Works  Department  or  any   other Government  Agencies  or Municipality as  the  Minister  may indicate.   In  the present case money was to  be  disbursed through the Municipal Committee. It is argued that the money was withdrawn and made available a day before the poll suggesting thereby that this was  done to assure the voters that the money had come in as a  result of  the, bargain.  The hurry in reaching the money to  these two  wards  in the Kaithal Municipality is the  main  reason behind the learned Judge’s conclusion that it must have been a  part of a bargain.   Evidence, however shows that  Bhalla (who  was  not favourable to the  appellant)  himself  wrote saying that the money should be made available at once;  and this  money came to the hands of Om Prakash Shorewala,  who, as  we have already pointed out, was helping  the  answering respondent in his election.  It appears to us that all  this hurry  which  did  not emanate from the  appellant  was  the result  of   and anxiety on the part of the recipients  that the  money  should be made available as  soon  as  possible. There is always a risk of a change of attitude  particularly

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if  the  election  goes against  a  particular  party.   The persons who were to benefit by the discretionary 119