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PETITIONER: SHEODHAN SINGH

       Vs.

RESPONDENT: MOHAN LAL GAUTAM

DATE OF JUDGMENT: 24/01/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1969 AIR 1024            1969 SCR  (3) 417  1969 SCC  (1) 408  CITATOR INFO :  E&D        1974 SC 505  (4)  E          1975 SC1012  (11)  R          1976 SC 744  (34)  R          1984 SC 135  (22)

ACT: Election   petition-Whether   abates   on   dissolution   of legislature-Presentation by Advocate’s clerk in petitioner’s presence-If proper presentation.

HEADNOTE: The respondent’s  election to the U.P. Legislative  Assembly in  February,  1967, was challenged by the appellant  in  an election petition ,on various grounds including  allegations of corrupt practices.  The respondent raised two preliminary objections before the High Court namely, (i) the    petition was  not maintainable as it was not properly presented;  and (ii) the  petition ceased to be maintainable as a result  of dissolution  of the U.P. Legislative Assembly by  virtue  of the  President’s  proclamation  of  April  15,  1968,  under article  356  (1)  of the  Constitution  issued  during  the pendency  of  the election petition before the  High  Court. These  preliminary  objections  were rejected  by  the  High Court, which also dismissed the petition on the merits. On an appeal to this Court, HELD  :  (i) The High Court was right in  holding  that  the requirements  of  law as to the presentation of  a  petition were fully satisfied as the election petition was  presented to  the Registry by an Advocate’s Clerk in the  presence  of the petitioner.  The petitioner in substance, though not  in form,  himself  presented the petition. (ii)  There  was  no force  in  the  contention  that  the  petition  had  become infructuous  in view of the dissolution of  the  Legislative Assembly. [418H] The question for consideration was not only the validity  of the  election but also the allegation of  corrupt  practices which,   if  established,  would  involve   the   respondent incurring certain electoral disqualifications. It  is clear from the provisions of Chapters III and  IV  of Part VI of the Representation of the People Act, 1951,  that

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the  contest in an election petition is really  between  the constituency and the person or persons complained of.   Once the  machinery  of  the Act is moved by a  candidate  or  an elector,  the  carriage of the case does not  entirely  rest with the petitioner.  The reason for these provisions is  to ensure  to the extent possible that the persons  who  offend the election law, are not allowed to avoid the  consequences of their misdeeds. [421G] . The  law  relating to withdrawal and abatement  of  election petitions  is exhaustively dealt with in Chapter IV of  Part VI of the Act.  In deciding whether a petition has abated or not  it  was not possible to travel outside  the  provisions contained in that Chapter.  The Act does not provide for the abatement  of an election petition either when the  returned candidate  whose election is challenged resigns or when  the assembly is dissolved. [42 1 D] Carter   and  Anr.  v.  Mills  9,  Common  Pleas   p.   117; distinguished;  Ghasi Ram V. Dal Singh and Others  [1968]  3 S.C.R. 102; followed. (iii)     On the facts, the High Court had rightly dismissed the petition. 418

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1564  of 1968. Appeal  under s. 116-A of the Representation of  the  People Act, 1951 from the judgment and order dated May 23,  1968-of the  Allahabad  High Court in Election Petition  No.  40  of 1967. Danial  Latifi,  S.  J.  Hyder, Rajindra  Singh  and  M.  I. Khowaja, for the appellant. Veda  Vyasa,  K. K. Jain, H. K. Puri, G. N. Dikshit,  R.  N. Dikshit,  S. N. Sinha, K. C. Sharma and M. K. Garg, for  the respondent. The Judgment of the Court was delivered by Hegde,  J. This appeal under s. 116A of the  Representation, of the People Act, 1951 arises from the decision in Election Petition  No.  40 of 1967 on the file of the High  Court  of Judicature  at  Allahabad.  In that petition  the  appellant challenged  the  election  of the  respondent  to  the  U.P. Legislative Assembly from Iglas Constituency in the  general election  held  in  February 1967.   In  that  election  the appellant,  the respondent and four others  contested.   The respondent  secured  10,705 votes more than  the  appellant. Other candidates secured less votes than the appellant.  The appellant  challenged  the  election of  the  respondent  on various  grounds, most of which were given up either in  the trial court or in this Court.  The High Court dismissed  the election  petition.   Against that order the  appellant  has come up in appeal. Before going into the merits of the appeal, it is  necessary to deal with the preliminary objections to the appeal, taken by  the respondent.  The first objection taken was that  the petition  was  not  maintainable  as  it  was  not  properly presented.   The  second  objection was  that  the  petition ceased to be maintainable as a result of the dissolution  of the  U.P.  Legislative  Assembly  as  per  the   President’s Proclamation  of  April 15, 1968 under Art.  356(1)  of  the Constitution.   That  Proclamation  was  issued  during  the pendency of this election petition before the High Court. The  High  Court rejected both those contentions  but  those contentions were again pressed for acceptance at the hearing

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of this appeal. The  High  Court  has  found as a  fact  that  the  election petition  was  presented to the registry  by  an  advocate’s clerk   in  the  immediate  presence  of   the   petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself.  Hence the requirement of the law was fully satisfied. We  are unable to accept the  contention of Mr. Veda  Vyasa, learned Counsel for the respondent that the petition must be held 419 to have become infructuous in view of the dissolution of the assembly.   In  this  proceeding  we  are  considering   the validity  of the election of the respondent and not  whether he  is  continuing as a member.  If the  contention  of  the appellant   that  the  respondent  was  guilty  of   corrupt practices  during the election is found to be true then  not only  his election will be declared void, he is also  liable to incur certain electoral disqualifications.  The purity of elections  is of utmost importance in a  democratic  set-up. No  one can be allowed to corrupt the course of an  election and  get away with it either by resigning his membership  or because  of  the  fortuitous circumstance  of  the  assembly having been dissolved.  The public are interested in  seeing that  those who had corrupted the course of an election  are dealt with in accordance with law.  That purpose will  stand defeated if we accept the contention of Mr. Veda Vyasa. The election petitions in this country are solely  regulated by statutory provisions.  Hence unless it is shown that some statutory  provision  directly or by  necessary  implication prescribes that the pending election petitions stand  abated because  of the dissolution of the Assembly, the  contention of the respondent cannot be accepted. Section  80 provides that no election shall- be  called in question  except  by  an  election  petition  presented   in accordance  with the provisions of the Act.  Section 81  (1) says  that  an  election petition calling  in  question  any election  may  be presented on one or more  of  the  grounds specified  in  sub-s. (1) of S. 100 and s. 101 to  the  High Court,  by  any candidate at such election or  any  elector. Section 84 prescribes that a petitioner may, in addition  to claiming  a declaration that the election of all or  any  of the returned candidate is void, claim a further  declaration that  he  himself  or  any other  candidate  has  been  duly elected.   Chapter  III of Part VI deals with the  trial  of election petitions.  Section 86(1) prescribes that the  High Court  shall  dismiss an election petition  which  does  not comply  with  the provisions of s. 81 or s. 82  or  s.  117. Section 87(1) says that subject to the provisions of the Act and  of any rules made thereunder, every  election  petition shall  be tried by the High Court, as nearly as may  be,  in accordance  with the procedure applicable under the Code  of Civil Procedure, 1908 to the trial of suits.  Section 97 (1) provides for filing recrimination. Section 98 reads :               "At the conclusion of the trial of an election               petition the High Court shall make an order               (a)   dismissing the election petition; or               (b)   declaring the election of all or any  of               the returned candidates to be void; or               420               (c)   declaring  ’ the election of all or  any               of the returned candidates to be void and  the               petitioner or any other candidate to have been               duly elected."

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Section 99(1) is important for our present purpose.  It says "At  the time of making an order under s. 98 the High  Court shall also make an order :               (a)   where any charge is made in the petition               of any corrupt practice having been  committed               at the election, recording-               (i)   a  finding whether any corrupt  practice               has  or  has  not been  proved  to  have  been               committed  at the election and the  nature  of               that corrupt practice; and               (ii)  the  names of all persons, if  any,  who               have  been  proved at the trial to  have  been               guilty of any corrupt practice and the  nature               of   that  practice   ............   (emphasis               supplied). Chapter IV of Part VI deals with withdrawal and abatement of election petitions.  Section 109 stipulates that an election petition  may  be withdrawn only by the leave  of  the  High Court and where an application for withdrawal is made notice thereof  fixing  a date for the hearing of  the  application shall  be  given to all other parties to  the  petition  and shall  be  published in the official gazette.   Section  112 says :               (1)  An election petition shall abate only  on               ’the  death  of a sole petitioner  or  of  the               survivor of several petitioners.               (2)   Where an election petition abates  under               sub-s.               (1)   the  High Court shall cause the fact  to               be  published  in such manner as it  may  deem               fit.               (3)   Any person who might himself have been a               petitioner  may, within fourteen days of  such               publication,   apply  to  be  substituted   as               petitioner   and  upon  compliance  with   the               conditions,  if any, as to security, shall  be               entitled to be so substituted and to  continue               the  proceedings upon such terms as  the  High               Court may deem fit."               Section 1 1 6  reads:               "If  before the conclusion of the trial of  an               election petition, the sole respondent dies or               gives notice that he does not intend to oppose               the petition or any of the respondents dies or               gives  such  notice  and  there  is  no  other               respondent  who is opposing the petition,  the               High Court               421               shall  cause  notice  of  such  event  to   be               published   in  the  Official   Gazette,   and               thereupon  any  person who might have  been  a               petitioner  may, within fourteen days of  such               publication, apply to be substituted in  place               of such respondent to oppose the petition, and               shall be entitled to continue the  proceedings               upon  such terms as the High Court  may  think               fit." From  the  above provisions it is seen that in  an  election petition, the contest is really between the constituency  on the one side and the person or persons complained of on  the other.   Once  the  machinery  of the  Act  is  moved  by  a candidate  or an elector, the carriage of the case does  not entirely  rest  with  the petitioner.  The  reason  for  the elaborate  provisions noticed by us earlier is to ensure  to the extent possible that the persons who offend the election

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law  are  not  allowed to avoid the  consequences  of  their misdeeds. The  law  relating to withdrawal and abatement  of  election petitions  is exhaustively dealt with in Chapter IV of  Part VI of the Act.  In deciding whether a petition has abated or not  we  cannot travel outside the provisions  contained  in that  Chapter.   There  is no provision  providing  for  the dropping  of an election petition for any reason other  than those  mentioned therein.  The act does not provide for  the abatement  of an election petition either when the  returned candidate  whose election is challenged resigns or when  the assembly  is dissolved.  As the law relating  to  abatements and withdrawal is exhaustively dealt with in the Act  itself no  reliance  can be placed on the provisions of  the  Civil Procedure   Code  nor  did  the  learned  Counsel  for   the respondent  bring to our notice any provision in  the  Civil Procedure  Code  under which the election petition  clan  be held to have abated. In  support of his contention that the petition  has  abated great  deal of reliance was placed by Mr. Veda Vyasa on  the decision in ,Carter and Anr. v. Mills(1).  Therein a pending election  petition  was  allowed  to  be  withdrawn  on  the dissolution of the Parliament.  In doing so Coleridge,  C.J. observed thus :               "I am of opinion that this application  should               be ’granted.  The Queen having been pleased to               dissolve  Parliament, of which fact the  Court               must  take  judicial cognizance,  a  case  has               arisen not expressly provided for in the  Act;               and  under these circumstances we  must  guide               our  proceedings  by  the  old   parliamentary               practice   on  the  subject.   It  is   common               knowledge, that according to the old  practice               the petition abated or dropped in such a case.               We think the result is the same now, and  that               we therefore have authority, and ought to make               an order for the return of the deposit." (1)  9, Common Pleas p. 117. 422 Keating,  J., the other judge agreed with the learned  Chief justice.  We do not know the facts of that case. It is  not known  whether  the election of the returned  candidate  was challenged  on  the  ground of any  corrupt  practice.   The decision   in   that  case  rested  solely   on   ’the   old parliamentary  practice  on the subject’.  We have  no  such practice in this country.  That being so that decision is of no assistance for our present purpose.  In Ghasi Ram v.  Dal Singh  and Others(1) this Court proceeded on the basis  that the  dissolution of the assembly does not put an end to  the election  petition.   For the reasons already  mentioned  we think  that the High Court was right in its conclusion  that the election petition had not abated. This  takes  us  to the merits of the  case.   As  mentioned earlier  the  election of the respondent was  challenged  on numerous  grounds.   On the pleadings as many as  10  issues were  raised.  At present we are concerned only with  issues Nos. 7, 8 and 10. The only question arising under issue No. 7 is whether  Exh. 7, was got printed and published by the respondent.  So  far as  the  question  of getting it  prepared  and  printed  is concerned,  the  evidence principally relied on is  that  of P.W.  16  Mohan Singh.  We are in agreement  with  the  High Court  that  Mohan  Singh is a  wholly  unreliable  witness. According to him he was a signatory to that pamphlet and  he took  active part in getting it printed which means that  he

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was  a  party  to the publication of  false  statement.   He appears  to have been on the side of the respondent  at  one stage  and  walked over to the side of the  appellant  at  a later  stage,  not  uncommon  during  election  time.    His evidence  does not carry conviction.  On his own showing  he can be a stooge. In support of the evidence of P.W. 16 reliance was placed on Exh.  D-23, one of the vouchers submitted by the  respondent along  with his return of election expenses.   That  voucher relates  to the printing of two pamphlets on behalf  of  the respondent.   It  shows that one of the  pamphlet  mentioned therein  was printed on both sides of the paper.  Exh. 7  is also  printed  on both sides of a paper.  From that  we  are asked  to  conclude that the voucher in question  refers  to printing  of pamphlets like Exh. 7. Such an inference  would be  a  far fetched one.  According to  the  respondent  D-23 relates to pamphlets similar to Exh.  A-154 and A-155.   The High  Court has not accepted that contention.  The basis  on which  the  High  Court rejected that  contention  does  not appear to us to be correct.  It is not necessary to go  into that  question  as  we  are of  opinion  that  there  is  no satisfactory  evidence to show that any entry in Exh.   D-23 relates  to pamphlets similar to Exh. 7. We are also  unable to  attach any weight to Exh. 3, the complaint given by  the appellant to the Returning Officer.  The appellant (1)  [1968] 3S.C.R 102. 423 has  considerable experience of filing  election  petitions. This was. the third election petition filed by him.  Even as the election was going on he appears to have been  preparing for the election petition.  The evidence of P.W. 7,  Narayan Singh Bodh throws a: great deal of light on this aspect. Large number of witnesses were examined to show that  either respondent  himself distributed pamphlets like Exh. 7 or  he got  them  distributed through others.  Their  evidence  has been  considered by the High Court in detail  and  rejected. We  have  been taken through that evidence and we  were  not impressed by the same.  We are satisfied that the High Court has correctly assessed, that evidence. Generally,  this Court accepts the findings of fact  arrived at  by  the  High Court.  Election petitions  are  tried  by experienced’ judges of the High Court.  They had the benefit of  observing the witnesses when they gave evidence.   Hence their appreciation. of evidence is entitled to great weight. We  have not been shown any good reason for  departing  from that rule. Now coming to issue No. 8 which relates to the complaint of’ the  appellant that the respondent, his agents  and  workers had  hired several vehicles for conveyance of the voters  to and from the polling stations.  In the petition, particulars of  as many as twelve vehicles which were said to have  been used for conveying voters. were given.  But the  appellant’s learned  Counsel  confined his arguments to  three  vehicles only  i.e.  Truck  No. USK 503, Bus.  No.  RJL  9729  and  a Tractor. So far as Truck No. USK 503 is concerned, the witnesses. who were  examined are P.Ws. 37, 40, 41, 45 and 48.  Among  them the  most  important witness is P.W. 45 Sukhbir  Singh.   He claims  to  have worked for the respondent  and  transported voters  to  the polling station in the  truck  in  question. Further he deposed’ that he hired that truck from  "Achaltar truck  operators’  Union"  Hathras.  It  is  now  definitely established and that evidence was. not challenged before  us that  in  Hathras there was no concern  bearing  that  name. Hence  it is obvious that the evidence of this’  witness  is

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wholly false.  We are unable to accept the contention of Mr. Latifi,  learned Counsel for the appellant that the name  of concern in question was wrongly mentioned by the witness due to  some  confusion.   The fact that P.W. 45  at  one  stage worked  for  the  respondent is not  of  much  significance. Changing sides during election is nothing unusual.  Once the evidence of P.W. 45 is proved to be false very little  basis remains  for the evidence of’ other witnesses who  spoke  to the  user  of a truck in question.  It is  common  knowledge that  in the trial of election petitions there would  be  no dearth  of witnesses’.  The faction spirit generated  during election  projects  itself  during  the  trial  of  election petition 424 that  follows.   Much  value  cannot  be  attached  to   the complaint  given  by the appellant’s agent  to  the  polling officer  (Exh.  18).  That document has  several  suspicious features which were noticed ,by the High Court. Now  coming  to the tractor, its registration  No.  was  not spoken  to by any witness.  There is no evidence  about  its hiring.  The witnesses who- speak to its user are P.Ws.  33 and  34.   The evidence of P.W. 33 is extremely  vague.   He deposed that a worker,of the respondent Sita Ram carried the voters  from  the  villages to the election  booth. He  is unable  to give the details of the tractor.  P.W. 34  is  an omnibus  witness.  The evidence relating to owner  ,of  that tractor  is  conflicting.  The evidence of P.Ws. 33  and  34 does not carry conviction.  It was rightly not relied on  by the High Court. Now  coming to the hiring of Bus RJL 9729, according to  the petition that bus was owned by one Babu Lal of Jaipur.  That Babu  Lal has not been examined.  The evidence of P.Ws.  30, 31 and 32 who speak to the conveyance of the voters in  that bus to the polling stations is far from satisfactory.  Their evidence  did  not ,commend itself to the trial  court.   We agree with the High Court that it is unsafe to rely on their evidence. This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by  the respondent  had  exceeded  the prescribed  limit.   In  this connection  various  items  of expenses said  to  have  been omitted  in the return were particularised in  the  petition but most of them were not pressed at the hearing. The  evidence  relating to the expenses said  to  have  been incurred  in  procuring and hiring  vehicles  for  conveying voters to the polling; booths has to be rejected in view  of our  earlier  findings.  Large  number  of  witnesses   were examined to show that considerable quantity of wheat,  atta, sugar  and  ghee had been purchased by  the  respondent  for feeding  his  workers and the expenses  incurred  for that purpose  had  not been included in the return  of  expenses. Their  evidence  has not been believed by the  trial  court. ’We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance  on the documents produced in that connection. In  the result this appeal fails and the same  is  dismissed with costs. R.K.P.S.                              Appeal dismissed. 425