GOVT. OF INDIA PLD. 71. XXXII)1971 1,000

ELECTION LAW REPORTS

Containing imporrl"t cases on election law decided by the Supre eLCourt and the High Courts of India and the'opinions of the

Election Commission of India.

Vol. XXXII

Editor :

R.K.P. SHANKARDASS, M.A.LL.B. (Cantab.)

Advocate, Supreme Court.

32 E.L.R.

Published under the Authority of the Election Commission of Indiaby the Manager of Publications, Civil Lines, Delhi andPrimed by the General Manager, Govt. of India Press, New Delhi.

1971

1 E.C.—1

ICOHTJBI .TS

PAGES

T. Table fflf GKJxHepoTted ... - • (')II- T « c -«*-Esses Cited (")—(vi)

Mi l . RcpMteisfiQues . . 1—279-•••IV. I a * a t . . ..r 281—285

T i x M*fc-<rf Citation of the Thirty 'Second Volume of the Election Law Reports

32. E.L.R.

A TABLE

OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME

3_ Bafca Lai v. Sh-V Sharma and others 246Cifiadhya Pradesn H. C. at Indore)

s . JBcdisarbhai Parmabhai Harjivandas v. Devjibhai 133Ssdabhai Parmar (Gujarat H.C.)

3 . Jaxfcbhai Chunibhai Patel v. Anwerbeg A. Mirja ti*Gt%arat H.C.)

.jg. K-T1- Kosalram v. Dr. Santhosham 69PSadras H. C.)

5 . Ijaaminarayan v. Bankatlal•fjttadhya Pradesh H. C a t Indore) 191

S . Wk T . Mayanna v. Y. K. Ramaiah and anotherfMyscre H. C. at: Bangalore) 17

71, BJarsirtt'n.ai K ir-.ar.bhai Makwana t>. Jesingbhai Govindbhii 152Warjv.it and anotherNSnjsrat H.C."!

•S. Pssrsa Ram v. Shiv Chand and others 221JFoiBjab and Haryana H.C.)

g., StM&xi Ram and others v. Hira Singh Pal 28<ESdhi High Court at Simla)

i:a: K., &sngameswara Reddy v. A. Ramachandra Reddy 66CAndhra Pradesh H. C. at Hyderabad)

Sissmsher Chand v. Parkash Chand and others 97gDdhi H. C. at Simla)

12. Skaartibhai v. Mahadeo and others 232t^Sfiadhya Pradesh High Court at Indore)

1 3 . A- C Srikantaiah u. B. Daddabore Otowda and Ors. 5a{Mysore H. C. at Bangalore)

34. SsrwaPrasad v. Atamdas 116{Madhya Pradesh H. C. at Indore)

'$$. Yasreddy Jagannatham Naidu v. Vangapandu Narayana 1243JLpf>ala Naidu and another

& h Pradesh H. C. at Hyderabad.)

TABLE OP CASES CITED-

Ahmedmiya Sherumiya fhaith v. Chippa I&iaEim Kuraji and etfess17 E.L.R. 218 . . . .

Barnstable Case(11)2 O ' M & H. 105 . . ... . . . .. _ _ jo

Basavalingappa v. Munichinnappa 1965 S. 1269 . . . . . . . . . 321,22b

Basantir Basi v. General Manager, M. P. S. R. Corrroraticn3 i$€5 K . I _Law Journal, Short Note No. 58 » . . .... ... «_

Bhagwan Dutt Shastri v. Ram Ratan Gupta and othersBhagwan Dutt Shastri v. Badrmarayan Singh

11 E.L.R. 448 • • • • . . V „ ^

Bhaiyalal v. Harikishan Sirgh A.I.R. 1965 S.C. 1557

Bhim Sen v. Gopali and others22 E.L.R. 288

Biresh Mishra v. Ram Nath Sharma and others.A.I.R. 1959 Assam 139/17 E.L.R. 243 ... . . m_

Brij Sunder Sharma v. Shri Ram Dutt and othersA. I. R. 1964 Raj. 99?

Brij Mohan Lai v. Election Tribunal, Allahabad and Ors, 1966 Doabia aElection Cases 93/ A. I. R. 1965 All. 450 . . . . . » _ 134

Brij Mohan Singh v. Priya Brat Narain Sinha ard othersA. I. R. 1965 S. C. 282 . . . . . _ . i S 3 > ity

Chatturbhuj Vithaldas Jasari v. Moreshwar Parashram ar.d othera-A. I. R. 1954 S. C. 236 r _ I J 7 _ 2 2 .

Chadalavada Subba Rao v. Kasu Brahmananda Reddy 1966••An. W. R. 401/1954 S. C. R. 817/ 9 E. L. R. 361 . . . . . 354

U. J. S. Chopra v. The State of Bombay - gA. I. R. 1955 S. C. 633 . . . . . .

Commissioner of Commercial Taxes v. R. S. Thevar20S .T . C.453I „. , j ^ ^

Dr. Deorao Lakshman v. Keshav Laxman13 E.L.R. 334 , , 133. 25,{

Desai Basawaraj v. Dasankop Hasansab and others4E.LR.380 • • . . . . „ , ,„. 134

Dippala Sur iDora v. V. V. Giri and othersA. I. R. 1958 Andhra Pradesh 724 . , » . . ^ 15*

G. Durga Prasad Rao and arsr. v. G. Sundaraswami and othersA. I. R. 1940 Madras 513 . . » . - . . ,„. a 5 3 i , ? I

(iii)

Durga Shankar Mehta v. Thakur Raghuraj Singh and o t t a s9 E. L. R. 494/A. I. R. 1954 S. C. 520-, . . . . . 15?

Eastern Division of Clare Case

40 M. & H. 162 , . 7°:75 i

Election Petitions by O' Malley and Hard-castle . . . . 7 0

Ganj Veerappa v. Siddaveerappa E. P. 5 of 1967 (Mysore) g . I7» 2O_.2 -

Gourishankar Shastri v. Mayadhardas1959 J. L. J. 10 (17J 127)

Ghayar Ali Khan v. Keshav GuptaA. I. R. 1959 All. 264 254

Govind Malaviya v. iMurli Manohar and Ors.8 E. L. R. 84 232> 2353

Greencock Case(4) O.M. & H. 24,250 I . . i , . . . 7 °

Guru Gobinda Basu v. Sankari Prasad Ghosal and others]A. I. R. 1964 S. C. 254j 237

Harishchandra Bajpai and anr. v Triloki Singh and anr.A.I. R. 1957 S. C. 444/12 E.L.R. 461 I34)i34>

149,254,266

Halsburys Laws of England (III Edn.) Simonds Edn Vol. 14, p. 149)para 261 . . . . . . . . . . 7 °

Hotilal v. Raj Bahadur15 E. L. R. 55 237

Hukurachand v. Mani Shibrat Das LA. I. R. 1934 Lahore 984

Islington Division Case50 M. & H. 120 ] i , , . i • . . 7<V75

Inamati Mallappas Pasapa v. Desai Pasawarai Ayyappa and others14 E.L.R. 296 134

Jabar Singh v. Genda LaiA. I. R. 1964 S. C. 1200 2, 13I

Jagdev Singh Sidhanti v. Pratap Singh DaultaA. I. R. 1965 S. C. 183 2= 10, 44*

I53S182

Dr. Jagjit Singh v. Giani Kartar SinghA. I. R. 1966 S.C. 773 17,20,22

Jayalakshm1' Deramma v. Janardhan Redd ,17E. L. R. 302 254,266

Jo33?'i Faster Wilson v. Sir Christopher Furness6 3'Milley and Hardcastle Report of Election Case page i j . 153

K. Kamiraj Nadar v. Kunju Thevar and othersA. I. R. 1958 S.C. 687 134

Karan Singh v. Jamuna SinghA. I. R. 1959 Alld. 427 J34

(iv)

Keshav Laxman Borkar v. Dr D. L. Ansnc'e21 E.L.R. 466 154,189

.Khader Sheriff v. MunnuswamyA. I. R. 1955 S.C. 775 • • • • • • - 3 5

X,ibingh Keshrising Rehvar v. Vallabhdas ShankerlalThekdi andothers71 G. L. R. 753/A. I. R. 1967 Gujarat 62 . . . . 2, 9

-Laliteswar Prasad v. Bateshwar Prasad and othersA. I. R. 1966 S. C. 580 117,122,123

L. G.O. v. Lavel(7) (1901) 1 Ch 70

Londonderry Case1 O'M.& H. 274 (278) 254

Madhu Singh Mukh Ram v. Ram Saran Chand Mittal and othersA. I. R. 1966 Punjab 66 97

K. T. Meganathan v. K. T. Kosalrsm and Or«.9 E. L. R. 242 133

McOrary on Elections (IV EdnO 371

para 503 70

:S. Mehar Singh v. Umrao SinghA, I. R. 1961 Punjab 244 134

Mangaldas RaghavjiRuparel v. State of MaharashtraA. I. R. 1966 S. C. 128, 193, 2CO

.Maung Amin v. Maung SaungA. I. R. 1938 Rangoon 360 247,251

G. Michael v. S. VenkateswaranA. I. R. 1952 Madras 474 153

Manoharlal Chopra v. Rai Bahadur Rao Raja Seth HiralalA. I. R. 1962 S. C. 527 . . . . . . . 134

D. Muralidhar Reddy v. Paga P«..a Reddy (1964) 2 An. W. R. 242/AIR 1964 AP 530 254,266

M.A. Muthiah Chettiar v. Sa Ganesan |A» I. R. i960 Madras 85 ; 21 E.L.R. 215 . . . . . 2&185,

274

Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathrre and othersA. I. R. 1964 S. C. 1545 193

Narayan Yeshwant Nene v. Rajaram Balkrishna Raut and anotherA. I. R. 1961 Bombay 21 . . . . . . . 134

C. R. Narasimhan v. M.G. Natesa Chettiar 20 E.L.R. p 1AIR 1959 Mad 514 i54,i?53

3S4

Sv)

New Inlia Sagar Mil is Ltd. v. Commissioner of Sales Tax, BiharA. I. R. 1963 S. C. 1207 193

Prabhu v. JorsangXVIII. ILR110

Punjab Rao v. Dr. D. P. Meshram and Ors.A. I .R. 1965 S.C. 1179/1965 1 SCR849 153

Ram Sewak Yadav v- H. K. Kidwaiand Ors.A. I. R. 1964 S. C. 1249 17,20

Ra.nanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji & Ors.A. I .R. 1965 S. C. 669 . . . . . . . 1 3 4

Ram Dial v. Sant Lai2 0 E . L . R. 482 193,213

Rim Nath Kalia 0. Paul Singh Harnam Singh 1959 P»ijab 257 247,251

R i n-3i.vir s/o K i'yi'1 Si'igh v. State of RajasthanA. I.R. 1952 S. C. 54 269

Raianjaya Siig'ao. Biijiath Singh and Ors.A. I .R. 1954 S. C. 749 . 28,40,153

S irdar M. .<! v. Srimati Gayatri DeyiA. I. R. 1964 Raj. 223 !93

Satya P^akash v. Bakshi Ahmed Quresh.:/A. I. R. 1963 M. P. 316 • • . . . . . . 1 9 3

Srigappa Anianaopa v. Shivmsartiwami SiddappalayswamiA. I. R. 1961 Mysore 106 134

, Sheopat Singh v. Harischa"draA.I.R. 1958 Raj 324/16 E.L.R. 435 16 E.L.R. 103 . . . 28,41,

154,254

S i i j i : ; i i 3 illieries Co, Ltd. v. Comm:ssioner of Commercial Taxes,Hyderabad.A. I.R. 1966 S. C. 563 195

Srinivasw v. The Election Tribunal .Madras11 E.L.R. 278 . 7 0 , 7 2

State of Rajasthan v. Maian SwarupA. I.R. i960 Raj. 138 .' 232,256

State of Rijasthan v. SripaljainA. I. R. 1963 S. C. 1323 233,243

State of Assam v. Padma Ram 233,243

I. N. Saxenau. State of M. P.A. I.R. 1967 S.C. 1264 . . . . . . . J 3 3 J 4 3

The Stepney Case( 9 ) 4 O ' M & H . 34 at 50-51 7 o

Ci. Subba Rao v. MMib^r, Election Tribunal HyderabadA . I . R . 1 9 6 4 S . c . 1 0 2 7 . . . . " I 9 3

. NandramdasDwarkadaeA. I. R. 1958 M. P. 260

(vi)

The Taunton Case2 O'M & H 66 at 74 7°"

Vasanthpaiw. Dr. V. K. John12 E.L.R. 107 153

Yella Venkataramayya v. Yella SeshayyaA. I. R. 1942 Mad. 193 153

Vafati Gokul v. The State of Gujarat7 G. L. R. 1114 I34JI

Verman i v. Verman iA. I. R. 1943 Lahore 51 •• 153

Viswanath Prasad v. Malkhan S i rghA.I .R. 1964 All 181 . . . . . . . . 247

The Westminster Case(11)2 O 'M. & H . 105 70

Woodward «. Sarsons, 1875 L.R. io C. 1\ 733 • • . 70.. S

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

JASHBHAI CHUNIBHAI PATEL

v.ANWERBEG A. MIRJA

(B. J. DIVAN, J.)October 17 and 18, 1967

Representation of the People Act, 1951 SS. 86(4), 97, 101, 100(1)(ft),.( l ) (d) {Hi), 117, 118, 123(5)— Code of Civil Procedure, 1908rOrder 1 Rules 9 and 10, Order 6, Rule 17—Recrimination statement-application for amendment of statement by returned candidate on newground-Rule of limitation-Section. 100(1) (ft)—implication of—Re-counting of votes—When and how far it can be granted.

The petitioner, a defeated candidate, challenged the respondent's electionto the State Legislative Assembly, alleging inter alia corrupt practices underSection 123(5) of the Act. It was claimed that the respondent providedfree conveyance for voters and that there was improper reception, refusalor rejection of votes and that there was impersonation. The petitionerfurther prayed for a recount of votes. The respondent in his recriminatorystatement also alleged that there was impersonation of voters and that ifffact the petitioner had committed the corrupt practice of free conveyance ofvoters. After the issues were framed, the respondent wanted to amendhis recriminatory statement alleging that some votes were improperly treatedas valid votes in favour of the petitioner which should have been counted inhis own favour.

HELD.—Dismissing the petition (i) On the evidence: the election ofthe Respondent could not be declared to be void on the ground specified inSection 100(1 )(b) of the Act.

(ii) The strict bar of limitation under section 81 read with section86(1) of the Act only applies to election petitions and not to recriminatorystatements. The only period of limitation which has been prescribed forthe riling of a Recriminatory Statement is in the proviso to S. 97(1) of theAct. If a corrupt practice is alleged in the Recriminatory Statement it isrequired to be signed and verified like an Election Petition. In an indirectmanner, it has been laid down under the provisions of section 86(4),Explanation, and S. 97(1), that the notice contemplated by Section 97(1)together with the Recriminatory statement must be filed within a period of14 days from the date fixed for the respondents to appear before the HighCourt and answer the claim or claims in the petition. Under the rulesframed by the High Court, the respondent has to file his appearance within21 days or such time as the Court may allow.

Harish Chandra v. Triloki Singh A.I.R. 1957 S.C. 444, referred to.

An amendment to a recriminatory statement which seeks to set ur> a newground could only be filed within the limitation period prescribed for filingthe notice under Section 97(1) of the Act and the Recriminatory Statement

2 J . C. PATEL V. A. A. MIRJA [VOL. XXXII

. and therefore the respondent's application to amend his RecriminatoryStatement was time-barred.

Clause (iii) of Section 100(1) (d) of the Act deals with four differentsituations viz. improper reception, improper refusal, improper rejection; andreception of any vote which is void. Each of these four grounds is a sepa-rate ground by itself. The power to allow the amendment of a petition and,therefore, the power to allow the amendment of a recriminatory statement,cannot be exercised so. as to permit a new ground to be added. If theamendment sought is to be inserted an the Recriminatory Statement, a newground of challenge would be allowed to be raised and that is not permis-sible under the principles on which the amendment of pleadings in electionpetitions and ' trial of such recriminatory statements is to be allowed.Though the Recriminatory Statement ds not liable to be dismissed on theground of non-compliance with the period of limitation laid down in Sec-tion 97(1) of the Act as an election petition it is liable to be dismissed.

(iii) On the averments in the petition, it was not possible to grant ageneral recount of the votes; only a scrutiny of rejected votes in so far asthe votes which should have been taken to be in favour of the petitionerwere wrongly rejected and were wrongly held to be invalid by the Return-ing Officer could be allowed. It is well-settled that no party, particularlyin an election petition, can be permitted to travel beyond its pleading andthat being so, if at all, and if the averments in the petition and the evidenceon record justify it, the question of recount of rejected votes is permissibleunder section 100(1) (d) (iii); so far as the reception of votes alleged to bevoid is concerned, no order for a general recount of the votes which werecast at the time of election in a particular constituency could be ordered.

Jabar Singh v. Genda Lai, A.I.R. 1964 S.C. 1200; referred to.

(iv) For declaration of an election as void under section 1 0 0 ( l ) ( b ) ( a )for corrupt practice committed under Section 123(5) what the petitionerhas to establish in order to succeed is, firstly, that there was a hiring orprocuring of vehicles by the Respondent or his agent or by any other personwith the consent of the respondent. Secondly, that such vehicle so hired orprocured had been used for the free conveyance of any elector other thanthe candidate himself, member of his family or his agent, to or from anyPolling Station. Thirdly, that this corrupt practice of the use of such vehi-cle for the free conveyance of electors was committed by the Respondent orLby any other person with the consent of the Respondent.

•Lalsingh Rehvar v. Vallabhdas, 71 G.L.R. 753; Jagdev Singh v. Pratap

Singh, A.I.R. 1965, S.C. 183; referred to.

Election Petition No. 5 of 1967.

H. P. Shukla with N. C. Trivedi and G. C. Patel for the petitioner.D. K. Shah with M. I. Patel and M. M. Sastri for the Respondent.

JUDGMENT

DiVAN, J.—The petitioner in this Election petition has challenged the•election of the respondent from Petlad Constituency in Kaira District sofar as the election to the State Legislative Assembly is concerned. Thepetitioner was the candidate put up by the Swatantra Party and the res-

E.L.R.] J. C. PATEL V. A. A. MIRJA 3

pondent was the candidate put up by the Congress Party from this constitu-ency, being Constituency No. 125, for the Gujarat State Legislative Assemb-ly. The election took place at the time of the last general elections in Feb-ruary 1967. The polling day was February 21, 1967 and the result of thepoll was declared on February 24, 1967. When the results were declared,it was announced that the respondent had secured 23, 981 votes as against23, 795 votes secured by the petitioner. The total votes polled were 49,582 and out of these votes 1,806 votes were declared to be invalid. Thepetitioner has asked for a declaration under S. 100 of the Representationof the People Act, 1951, (hereinafter referred to as the Act), that theelection of the respondent is void and he has also asked for a declarationthat the petitioner be declared to be a returned candidate to the GujaratState Legislative Assembly. One of the reliefs which the petitioner hasasked for is for an order of recount of the votes polled on February 21 ,1967.

The petitioner has challenged the election of the respondent mainly ontwo grounds. The first ground is that of corrupt practice denned in S.123(5) of the Act; and the allegation of the petitioner in this connection isthat motor vehicles hired or procured by or on behalf of the respondentwere used for the free conveyance of voters, other than the respondent him-self and the members of his family, to or from Polling Stations. The peti-tioner has, therefore, alleged that on the ground specified in S. 100(1 ) ( b ) ,viz., that of corrupt practice committed by the respondent, the electionshould be declared to be void. The other ground on which the petitionerhas asked that the election of the respondent should be declared to be voidis that of improper reception, refusal or rejection of any vote or the receptionof any votes which were void. In this connection, the contention of thepetitioner is that several persons, whose names are mentioned in one of theannexures to the petition, were purported to have exercised their respectivevotes, though on the date of the poll some of them were dead and otherswere outside the constituency and hence were not in a position to exercisetheir franchise. Thus according to the petitioner, somebody else imper-sonated these respective voters and their void votes have been counted asvotes cast in favour of the respondent. The other ground regarding im-proper reception, refusal or rejection of votes is that at the time when thecounting of ballot-paper was going on, it was noticed by the polling Agentsof the petitioner and also by the petitioner himself that several of the voteswhich were treated as invalid votes and hence rejected by the ReturningOfficer were in fact valid votes and because of the wrong folding by thevoter concerned immediately after casting his vote .or because of the over-inking of the instrument with which the ballot-paper was required to bemarked, the ink had spread, with the result that the impression was carriedover to the symbol of the other candidate, viz., the respondent, when theballot paper was folded. Further, many votes which were treated as multi-ple votes, were in fact votes cast in favour of the petitioner and thus thepetitioner has contended that the result of the election in so far as it con-cerned the respondent has been materially affcted by the improper receptionor rejection of votes and reception of votes which were void and, thereforehe has praved for an order of recount; and after the recount for readjust-ment of votes, which are found by the court to have been wrongly rejectedor improperly received.

Since there is a prayer for a declaration that the petitioner should bedeclared to have been duly elected as contemplated by S. 101 of the Act,

_4 J- C. PATEL V. A. A. M1RJA [VOL. XXXll

by virtue of S. 97 of the Act, the respondent became entitled to file a Re-criminatory Statement; and in fact he has filed a Recriminatory Statement,which has been numbered as Recriminatory Statement No. 1 of 1967. Inthe Recriminatory Statement, the contention of the respondent is that severalpersons, who were dead, or who were not in the constituency on the dateof the poll were impersonated by others and their votes are alleged to havebeen exercised in favour of the petitioner. The respondent has also allegedthe corrupt practice of use of motor-vehicles for free conveyance of votersto and from polling Stations by the petitioner himself or by his agents; andunder these circumstances, the respondent has contended that the electionof the petitioner would have been void if the petitioner had been the return-ed candidate and a petition would have been presented calling in questionhis election.

It must be noted that at the time when this Recriminatory Statementwas filed there was no averment in the recrimination that so far as the res-pondent was concerned, there was any iejection of votes or treatment ofvotes as invalid though such votes should have been counted in his favour.The only thing which he has alleged in the Recriminatory Statement regard-ing the improper reception or rejection of votes is that in the name of severalpersons who were dead or away from the constituency, the votes are allegedto have been cast and, according to the respondent, such votes were cast infavour of the petitioner. So as the Recriminatory Statement as it originallystood, there was no ground of any alleged improper rejection of votes.Thereafter issues were framed both on the petition as well as on the Recri-minatory Statement and after the evidence was recorded and when the argu-ments were about to be over, an application for amending the RecriminatoryStatement was filed on behalf of the respondent. By that amendmentapplication, the respondent wanted to amend his Recriminatory Statementby adding para 5A to the Recriminatory Statement and by that proposedpara 5A, the respondent wanted to contend that some of the votes whichwere valid and legally cast in his favour had been declared and disallowedas invalid on flimsy objections raised by the petitioner such as the impres-sion of the stamp being made not exactly on the print of the pair of bullocksbut on the space around it or towards the side of the name of the respondenton the ballot paper or on the name of the respondent itself, or that the inkof the stamp made on the pair of bullocks had been carried while foldingeither on the name of the respondent or on the election symbol of the peti-tioner; or in some cases the ink of the stamp being excessive, it was con-tended on behalf of the petitioner that it was not a stamp but a finger im-pression of the voter concerned.

I will first deal with this Amendment Application No. 85 of 1967, foramendment of the Recriminatory Statement of the respondent. As to thescope of an amendment application in Election Petitions, the Supreme Courthas laid down the law in Harish Chandra v. Triloki Singhi1). In thatdecision, it has been laid down that the Tribunal functioning under theAct has the power tj pass order under O.I. Rr. 9 and 10 C.P.C. and ithas also been observed that the Tribunal has also the power under 0 /R. 17 C.P.C. to allow amendments of the pleadings in Election Petitions.At page 455 of the report in para (23), Venkatarama Ayyar J., deliveringthe judgment of the Supreme Court, has summed up the position thus:—

"(1) Under S. 83(3) the Tribunal has power to allow particularsin respect of illegal or corrupt practices to be amended, pro-

(1) A.I.R. 1957 S.C. 444.

m.L.R.I J . C. PATEL V. A. A. MIRJA 5

vided the petition itself specifies the grounds or charges, andthis power extends to permitting new instances to be given.

(2) The Tribunal has power under 0.6. R. 17 to order amendmentof a petition, but that power cannot be exercised so as to per-mit new grounds or charges to be raised or to so alter itscharacter as to make it in substance a new petition, if a freshpetition on those allegations will then be barred."

It is true, as was contended on behalf of the respondent, that the strict barof limitation which has been laid down in S. 81 of the Act and which underthe provisions of S. 86(1) of the Act ordains to High Court to dismiss anElection Petition which does not comply with the period of limitation laiddown in S. 81, does not in terms apply to Recriminatory statements. Theonly period of limitation which has been prescribed for the filing of a Recri-minatory Statement is in the proviso to S. 97(1) of the Act. Under S.97(1), when in an election petition a declaration that any candidate otherthan the returned candidate has been duly elected is claimed, the returnedcandidate or any other party may give evidence to prove that the electionof such candidate would have been void if he had been the returned candi-date and a petition had been presented calling in question his election; andunder the proviso, the returned candidate or such other party who wants tolead such evidence has to give notice to the High Court of his intention soto do within 14 days from the commencement of the trial and has also tofurnish a security and further security referred to in Ss. 117 and 118 Ofthe Act. The notice is to be accompanied by a Recriminatory Statementand the particulars required by S. 83 of the Act in the case of an ElectionPetition are also to be furnished, if a corrupt practice is alleged in theRecriminatory Statement and it is required to be signed and verifiedlike an Election Petition. The Explanation to S. 86(4) of the Act providesthat for the purpose of that sub-section and of S. 97, the trial of a petitionshall be deemed to commence on the date fixed for the respondents to appearbefore the High Court and answer the claim or claims in the petition.Therefore, it is clear that in this indirect manner, it has been laid downunder the provisions of S. 86(4), Explanation, and S. 97, read that thenotice contemplated by S. 97(1) together with the recriminatory statement,must be filed within a period of 14 days from the date fixed for the respon-dents to appear before the High Court and answer the claim or claims inthe petition. Under these circumstances, before considering the questionof amendment it must be taken into consideration that the period for filingof fresh recriminatory statement has long since passed, because under therules framed by the High Court, the respondent has to file his appearancewithin 21 days or such time as the Court may allow. Under these circums-tances, it is clear that long before the respondent filed his application toamend the recriminatory statement, the period of 21 days fixed by the Courthad expired and, therefore at the time when this amendment applicationwas made on October 4, 1967, the time for filing the notice under S. 97(1)and the Recriminatory Statement had long since expired.

In the Recriminatory Statement as originally filed the respondent hadprayed that in the event of this Court being inclined to grant a recount ofvotes polled at the said election, the votes cast in favour of the petitionerfor dead and absentee voters may be declared void and the recount of votesmay include the scrutiny of votes declared to be invalid against the respon-dent; and he has also asked for a further declaration that the petitioner isnot entitled to get himself declared as a returned candidate to the GujaratState Legislative Assembly. Now, though in para 8 (A) there is a prayer

6 J . C. PATEL V. A. A. MIRJA [VOL. XXXIK

that the recount of votes may include the scrutiny of votes declared against-the respondent in the body of the Recriminatory Statement, there is no aver-ment indicating that there was any improper rejection of votes against therespondent and hence on a recount the number of votes counted in favour ofthe petitioner be reduced. The only ground alleged in the RecriminatoryStatement is that the petitioner had got votes of dead and absent personscast in his favour. Apart from the averment in para 3 of the RecriminatoryStatement regarding the provisions of S.100 ( l ) ( d ) ( i i i ) , no other groundhas been alleged contending that there was any improper rejection of votes.Section 100(1 )(d)( i i i ) provides that if the Court comes to the conclusionthat the result of the election in so far as the petitioner is concerned would.have been materially affected by the improper reception or improperrefusal or rejection of any vote or the reception of any vote which was void,then the appropriate relief on the Recriminatory Statement could have beengranted to the respondent. Clause (dii) of S. 100(1 ) (d) of the Act dealswith four different situations viz. improper reception, improper refusal,improper rejection; and reception of any vote which is void. Each of thesefour grounds is a separate ground by itself and the only ground which wasrelied upon was that of reception of votes of absentee and dead personswhich would naturally be void votes and, therefore, there is no question ofany of the three other grounds being relied upon in the RecriminatoryStatement as originally filed. If an amendment is allowed which is soughtfor in para 5A, it would be permitting the respondent to set up a newground for challenging the result of the election because so far as S. 100(1)(d) (iii) read with S. 97 is concerned, on the Recriminatory Statement theCourt has to find out whether the result of the election in so far as it con-crned the petitioner would have been void because it would have beenmaterially affected by improper rejection of votes. The Supreme Courthas clearly indicated in Harish Chandra's case (supra) that the power toallow the amendment of a petition and, therefore, the power to allow theamendment of a recriminatory statement cannot be exercised so as to permita new ground to be added, if a fresh petition on those allegations will thenbe time barred. It is clear from what I have stated earlier that at the timefrhen the application for amendment was presented, a fresh recriminatory. tatement would have been time-barred looking to the provisions of thetales framed by the High Court and the provisions of s. 97(1) of the Act.If the amendment sought for by this application were to be allowed andpara 5A were to be allowed to be inserted in the Recriminatory Statement,a new ground of challenge would be allowed to be raised and that is notoermissible under the principles on which the amendment of pleadings indection petitions and trial of such recriminatory statements is to be allowed.Though the Recriminatory statement is not liable to be dismissed on theground of non-compliance with the period of limitation laid down in S. 97(1) of the Act, as an Election Petition is liable to be dismissed, still theprinciples laid down in Harish Chandra's case (supra), would apply.Under these circumstances, I am rejecting Election Application No. 85 of1967 but I am passing no order as to costs so far as that application isconcerned.

I will now deal with the Election Petition itself and while dealing withthe Petition I will have to bear in mind the Recriminatory Statement whichhas been filed in these proceedings.

The principles governing the trial of an election petition when a recri-minatory statement under S. 97(1) has been filed, have been laid down by

E.L.R.] J. C PATEL V. A. A. MIRJA 7

the Supreme Court in Jabar Singh v. Cenda Lal,{2)- There the SupremeCourt has pointed out:—

"In a case of an election petition where the petitioner makes only oneclaim and that is that the election of the returned candidate is void, thisclaim can be made under S. 100. Section l(k>\l)(aXb; and (J) ic..._r tothree dist.net grounds on wnich the election o i tne returned caodidatj canbe chaLengsd. In dealiog with the challenge to tne validity of the electionof the returned Candida'e under Section 100(l)(d), what the election peti-tioner has to prove is not only the existence of one or the other of thegrounds specified in els. (i) to (iv) of S. 100(1) (d) , but he has also toestablish that as a result of the existence of the said ground, the result ofthe election in so far as it concerns a returned candidate has been material-ly effected.

There are, however, cases in which the election petition makes a doubleclaim; it claims that the election of the returned candidate is void, and alsoasks for a declaration that the petitioner himself or some other person hasbeen duly elected. It is in regard to such a composite case that S. 100 aswell as S. 101 would apply, and it is in respect of the additional claim fora declaration that some other candidate has been duly elected that S. 97comes into play. Section 97(1) thus allows the returned candidate to recri-minate and raise pleas in support of his case that the other person in whosefavour a declaration is claimed by the petition cannot be said to be validilyelected and these would be pleas of attack and it would be open to thereturned candidate to take these pleas, because when he recriminates, hereally becomes a counter-ptitioner challenging the validity of the electionof the alternative candidate. The result of S. 97(1) , therefore, is that indealing with a composite election petition, the Tribunal enquires into r>otonly the case made out by the petitioner, but also the counter-claim madeby the returned candidate. In such a case an enquiry would be held underS. 100 so far as the validity of the returned candidate's election is concerned,and if as a result of the said enquiry declaration is made that the electionof the returned candidate is void, then the Tribunal will proceed to dealwith the alternative claim, but in doing so, the returned candidate will notbe allowed to lead any evidence because he is precluded from raising anypleas against the validity of the claim of the alternative candidate.

It is true that S. 101 (a) requires the Tribunal to find that the petitioneror such other candidate for the declaration of whose election a prayer ismade in the election petition has in fact received a majority cf the validvotes. It cannot be said that the Tribunal cannot make a finding that thealternative candidate has in fact received a majority of valid votes unless allthe votes cast at the election are scrutinised and counted. As a result ofR. 57, the Election Tribunal will have to assume that every ballot paperwhich had not been rejected under R. 56 constituted one valid vote and itis on that basis that the finding will have to be made under S. 101 (a) .Section 97(1) undoubtedly gives an opportunity to the returned candidateto dispute the validity of any of the votes cast in favour of the alternativecandidate or to plead for the validity of any vote cast in his favour whichhas been rejected; but if by his failure to make recrimination within limeas required by S. 97, the returned candidate is precluded from raising anysuch plea at the hearing of the election petition, there would be nothingwrong if the Tribunal proceeds to deal with the dispute under S. 101 (a) on

(2) A.I.R. 1964 S.C. 1200

1 E.C.—2

8 J. C PATEL V. A. A. MIRJA [VOL. XXXII

the basis that the other votes counted by the returning officer were validvotes and that votes in favour of the returned candidate, if any, which wererejected, were invalid."

Now, in the instant case, as I have already pointed out while dealingwith the amendment application filed by the respondent, the only ground onwhich the recrimination has been filed is that of reception of void votes,being votes cast by some persons in the names of persons who were eitherdead or absent from the constituency on the date of the poll. Under thesecircumstances, I will have to proceed so far as the ground underS. 100(1) (d)(iii) is concerned on the footing that the recount will berestricted to consideration of those votes which were rejected against thepetitioner. No ground has been set out in the recriminatory statementwhich would permit the Court to examine the votes which have been reject-ed against the respondent i.e. the returned candidate; and, as I will present-ly point out, no ground has been made out for a general recount.

So far as the averments in the main petition are concerned, in para 9 ofthe petition, the petitioner has alleged that wrong principles were followedby the Returning Officer at the time of scrutiny of votes and at the time ofthe recount and with the result that a sizable number of votes which wouldhave gone to the petitioner were rejected. The only other ground which hasbeen set out in the petition regarding the ground under S. 100(1) (ci) (iii),is the allegation of votes in the name of dead and absentee voters havingbeen cast by some persons by impersonation and the result of he petitioner'selection having been thereby affected. Thus apart from the ground of im-proper reception of vote and reception of votes, which were void, no otherground has been set out and no other particulars have been set out in thepetition itself, which would justify Court in ordering a general recount. Itis well-settled law that no party, particularly in an election petition, can bepermitted to travel beyond its pleading and that being so, I can only considerin this judgment the case of improper rejection of votes and reception ofvotes which are alleged to have been void. The ground of general iecountcannot be entertained, there being no such pleading in that behalf. It istrue that in his evidence before the Court, the petitioner has alleged that evenafter the recount, which was ordered in pursuance of the application madeby him, the Returning Officer flowed some votes which were cast in favourof the petitioner to be treated as votes cast in favour of the respondent; butthat part of the petitioner's evidence must be discarded and overlooked astravelling beyond the averments set out in the petition. Under ;hese cir-cumstances, looking to the state of pleadings, I can only consider, if at alland if the averments in the petition justify, and if the evidence on recordjustifies it, the question of recount of rejected votes and the question so faras the reception of votes alleged to be void is concerned; and, therefore, Ihave not ordered a general recount of all the votes which were cast at thetime of election in this particular constituency on the date of the poll

Coming now to the first of the two grounds on which the election of therespondent has been challenged in the present proceedings, that ground is ofcorrupt practice set out in S. 123(5) of the Act. Under S. 100(1 ) ( b ) , ifthe Court is of opinion that any corrupt practice has been committed by areturned candidate or his election agent or by any other person with theconsent of a returned candidate or his election agent, the Court shall declarethe election of the returned candidate to be void. Section 123 of the Actdefines different kind of corrupt practices and under sub-sec. (5) , it is a

•X.L.R.] J . C PATEL V. A. A. MIRJA 9

corrupt practice to hire or procure, whether on payment or otherwise, any•vehicle or vessel by a candidate or his agent or by any other person with theconsent of a candidate or his election agent, or the use of such vehicle or•vessel for the free conveyance of any elector (other than the candidate him-self, the members of his family or his agent) to or from any polling station.Now, it is clear by the use of the word "such" in that portion of S. 123(5)which deals with the .free conveyance of electors to and from Polling Sta-tions, that the vehicle used for such conveyance must have been either hiredor procured, whether .on payment or otherwise, by candidate or his agent orby any other person with the consent of the candidate or his election agentSo far as the use itself is concerned, it is not required to be used by thecandidate or his agent or by any other person so far as the definition inS. 123(5) is concerned. However, in order to pass an appropriate orderunder S. 100 ( l ) (b ) , the Court must come to the conclusion that particularcorrupt practice of the use of such hired or procured vehicle has been com-mitted by the returned candidate or his election agent or by any other personwith the conseat of the returned candidate or his election agent, Jn theinstant case, the respondent in his deposition has stated that he had notnominated any person as his election agent and that part of his depositionhas not been challenged in any manner. It is thus common ground beforeme that the respondent had no election agent. Therefore, in the light ofthe provisions of S. 100( 1) (b) of the Act, in order to succeed, the petitionermust satisfy me that this particular corrupt practice of the use of a vehiclefor free conveyance of voters to and from a polling station, the vehicle beinga hired or procured vehicle, whether on payment or otherwise, by the res-pondent or by his agent, was committed by the respondent himself or byany other person with the consent of the respondent.

This analysis of the provisions cf S. 100(1 ) (b) of the Act is supportedby the decision of the Division Bench of our High Court in Luhing Rehvarv. Vallabhdos,{'••). There the Division Bench has laid down as follows:—

"Reading sec. 123 with the Explanation and sec, 100(1 ) (b) andsec. 100(1 ) (d)( i i ) of the Act together, it is quite clear that the Legislaturehas kept the two concepts of the commission of a corrupt practice and theinvalidity of an election quite distinct. Although a corrupt practice maycorne to be practised within the meaning of sec. 123, it does not in all caseslead to a declaration that the election is void. If a corrupt practice happensto be practised by the candidate himself or with his consent, it always leadsto the invalidity of an election. But the Legislature has not introduced theprinciple of vicarious liability when a corrupt practice happens to be com-mitted by a person other than a candidate in ail cases. The principle ofvicarious liability is introduced only in the case of a corrupt practice com-mitted by an election agent. If a corrupt practice is committed by nn elec-tion agent it always leads to the -invalidity of the election. If "a corruptpractice is committed by an agent other than an election agent, then, it canlead to a similar result only if it is committed with the consent of the candi-date or his election agent. In all other cases, including a polling agent, thecommission of corrupt practice cannot lead to the invalidity of "an electionurtless side by side it is also further pravei that, on account of the commis-sion of the corrupt practice, the result of the election has been materiallyaffected.

The true construction of clause (b) of sub-sec. (1) of sec. 100 of theAct is that, in order that the case of a corrupt cractice committed by an

»(3) 7 G.L.R. 753.

10 J . C. PATEL V. A. A. MIRJA [VOL. XXXIII

agent may be brought within the purview of that clause, it is necessary thatthe consent of the returned candidate or his election agent must be estab-lished. If this leads to the conclusion that sub-sec. (2) of sec. 100 isexcluded from -—application to clause (b) , effect should be given to thatconclusion rather than that clause (b) aforesaid should be construed in amanner which would violate the express language thereof."

Under these circumstances, what the petitioner has to establish in orderto succeed in this petition on the ground of the alleged commission of cor-rupt practice is to establish, firstly, that there was a hiring or procuring ofvehicle by the respondent or his agent or by any other person with the con-sent of the respondent. Secondly, that such vehicle so hired or procuredhad been used for the free conveyance of any elector other than ihe candi-date himself, members of has family or his agent, to or from any PollingStation. Thirdly, that this corrupt practice of the use of such vehicle forthe free conveyance of electors was committed by the respondent or by anyother person with the consent of the respondent.

Since there is an allegation of corrupt practice in this particular case,I will have to bear in niind the standard of proof which is required to estab-lish such a corrupt practice in Jagdev Singh v. Prafap Singh. (4) Shah J.delivering the judgment of the Supreme Court has stated in para (12) atpage 188 of the report that in the trial of an election petition, the burdenof proving that the election of a successful candidate is liable to be set asideon the plea that he was responsible directly or through his agents for corruptpractices at the election, lies heavily upon the applicant to establish his case,and unless it is established in both its branches i.e. the commission of actswhich the law regards as corrupt, and the responsibility of the successfulcandidate directly or through his agents or with his consent for its practicenot by mere preponderance of probability, but by cogent and reliable evi-dence beyond any reasonable doubt, the petition must fail.

I will first examine the evidence on the record regarding commission ofthe alleged corrupt practice and thereafter I will examine vhether this allegedpractice was committed by the respondent himself or by any other personwith the consent of the respondent. In the petition itself several motorvehicles are alleged to have been used for the purpose of conveying differentvoters to polling stations but at the time of recording evidence before methe petitioner has confined his case ultimately to only one vehicle viz., Am-bassador Car No. GJH-108. The learned counsel for the petitioner hasstated that apart from this particular vehicle he was not relying on the use ofany other vehicle and no evidence has in fact been led regarding the use ofany vehicle other than Car No. GJH-108. The petitioner's evidence inregard to this particular instance is that on the day of poll, he had gone toSayaji General Hospital compound at Petlad where polling booths Nos. 8and 9 of this particular constituency were located. He had earlier receivedcomplaints through the workers of the Swatantra Party that the CongressParty workers were conveying voters to and from polling booths in motorcars and were thus guilty of this particular type of corrupt practice. Inview of those complaints, which some of the workers of his party had madebefore him, the petitioner went round different polling Booths. At about12-30 P.M. on the day of the poll, when he was about to enter the gate ofthe compound of Sayaji General Hospital, he noticed a yellow colouredtaxi coming to a halt just near the gate and as the car in which the petitioner

(4) A.I.R. 1965 S.".. r?3

iE.L.R.J J- C. PATEL V. A. A. MIRJA II

was sitting was about to stop near the gate, the taxi shot past the petitioner'scar and halted near the gate. After getting down from his car, the petitionerasked his companion, Suryakant Manilal Shah, petitioner's witness No. 20,to go to the Presiding Officer of the Polling Booth nearest to the gatethrough which they had entered, so that he could point out to him if anyvoters got down from the taxi. The number of that taxi was GTG-9021.The petitioner himself waited near the gate of the compound and he saw aJady dressed in a black sari getting from the taxi. The taxi had stoppedabout 10 to 15 feet from the gate of the compound. There was a banyantree just near the compound but across the road and the taxi had stopped inthe shade of that tree. The petitioner waited there as he had called thePresiding Officer. In the meanwhile, Bakulesh Bhatt, Presiding Officer ofVooth No. 8, petitioner's witness No. 3 came near the gate and the peti-tioner showed him the lady in black sari and also the taxi to witness Bhattand told him that the lady had come in that taxi.

I must take it clear at this stage that there is no evidence apart fromthe evidence of the petitioner himself and Suryakant that any particularperson had got down from Taxi Car No. GTG-9021 near gate of this parti-cular compound. Witness Bakulesh Bhatt does corroborate the petitionerto this extent that when he came near the gate, he saw a women leaningagainst the gate of the compound and he also corroborates the petitioner tothis extent that the petitioner complained to him that particular womanhad got down from the taxi, which was also pointed out to witness Bhatt.L'Jt witness Bhntt has made it clear in his evidence that he had not seen Thewoman getting down from iiie car; and before me the instance of Taxi CarNo. GTG-9021 being used for the free conveyance of voters has not beenrelied upon in any manner. This incident of the woman getting down fromthe taxi was the reason why Bhatt was present near the gate at the timewhen the next part of the incident happened.

It is the case of the petitioner, and on that part of the case there is cor-roboration from witness Bhatt, that when the petitioner and Bhatt werearguin; near the gate regarding the case of the woman getting down from taxiNo. GTG-9021, an Ambassador motor car bearing No. GJH-108 came andstopped in front of that gate. The petitioner pointed out Car No. GJH-108to the Presiding Officer of Booth No. 8, Bhatt and pointed out three womenwho were sitting in that car. The petitioner asked Bhatt to ascertain fromthe women whether they were voters and if so, to take down his complaintregarding bringing of those voters in that car to the gate of the compound.When the car came near the gate, witness Bhatt, the petitioner himself,Suryakant, Babubhai and Somabhai (last two persons have not been exa-mined as witnesses were also standing near the pillar of the compound gateand Car GJH-108 came and was turned as if to enter the compound gatebut was stopped at the distance of 4 to 5 paces from where the petitioner,Bhatt and others were standing. Three women got down from Car GJH-108and they had Congress Party voting slips in their hands. The petitioner ask-ed Bhatt to check the numbers of those voters. Bhatt took the voting slipsfrom the three women found that those three women voters were for BoothNo. 9; whereas Bhatt himself was the Presiding Officer of Booth No. 8,Bhatt asked the petitioner to lodge his complaint with the Presiding Officerof Booth No. 9. The petitioner told Bhatt that if he were to lodpe his com-plaint with the Presiding Officer of Booth No. 9, Bhatt would nave to comeand verify that he had seen the three women getting down from that carJiear ^ e gate of the compound. Bhatt told the petitioner that he would do

»*~m ,.w gait ui me cumjjuuiiu. unatt told tne petitioner that he would do

12 J . C. PATEL V. A. A. MIRJA [VOL. XXXli.

so. The three women voters went towards Booth No. 9 and the petitionerand his companions followed them. The three women stood in the queuenear polling Booth No. 9 and the petitioner and his companions stoodoutside. The petitioner then asked Suryakant to call the Presiding Officerof that Booth outside the Polling Booth. When the three women voterswere standing in the queue at Polling Booth No. 9, they were still carryingthe Congress Party voting slips with them. Trivedi, the Presiding Officerof Booth No. 9, came out of the Booth. The petitioner pointed out the.three women voters who had got down from Car No. GJH-108, and werewaiting in the queue. The petitioner told Trivedi after pointed out thewomen to him that these three women voters had been brought in CarNo. GJH-108, by a Congress worker and that he had shown the three:women being brought to the polling station compound in Car No. GJH-108and their getting down from that car to Bhatt, the Presiding Officer of BoothNo. 8. The petitioner asked Trivedi to verify this fact by calling Bhatt..There was a police Constable on duty near polling Booth No. 9. Trivedi,asked that police Constable to call Bhatt outside Booth No. 8. Bhatt cameout and told Trivedi that those three women who were standing in the queue.had been brought in Car No. GJH-108 and that he had seen them gettingdown from that car. Trivedi then noted down the numbers and other parti-culars from the voting slips which the women were carrying with them.By the time Trivedi came out of Booth No. 9, Car No. GJH-108 had left.The petitioner gave the number of that car to Trivedi. Trivedi also wrotedown on that slip the number of motor-car No. GJH-108. The petitionerhad been Trivedi noting down the details on a slip1 of paper; he had notbeen that slip himself and he would not be able to identify it.

(After considering detailed evidence on the allegations of corrupt prac-tice that the Respondent hired or procured vehicles for the free conveyanceof electors, the judgment proceeded):

In arriving at the conclusions, at which I have arrived above. I havenot taken into consideration some minor discrepancies between the evidenceof Ratilal and Champaklal on the one hand and further the conduct of Rati-lal in preparing fresh statements of account from time to time with permu-tations and combinations of different figures of the four accounts; but Rati-lal's version in this connection seems to be true because there arc nolHavaid' entries transferred from one account to another viz., from tlie ac-count of Anwarbeg to the account of Mahendra Electric Co. C/c Anwarbegor from the election account of Chandubhai Puranbhai of Rangaipura to theaccount of Mahendra Electric Co. The only possible conclusion which canbe drawn from the record is that the respondent and the workers of his par;.',might not have been putting forward the correct version before the: Countwhen they were deposing before the Court regarding the circumstance; hiwhich the account in the name of Mahendra Electric Co. C/o Anwarbegcome to be opened and the manner in which that account was operatedupon; but because their version is rejected, it does not necessarily follow thatthe respondent was responsible for the commission of this particular corruptpractice on February 21, 1967; and it is on that aspect of the case that thepetitioner must fail.

It is not necessary for me to discuss in detail the rest of the evidenceregarding the operation i«t the account or the opening of the accountbecause from the mannei in which the entries are made in Ex. "J", the

E.L.R.] J. C. PATEL V. A. A. MIRJA 13

Ledger Account, in the relevant Cash Book entries and also in Ex. "N", theLedger Account and the corresponding cash Book entries, one in the nameof the respondent himself and the other in the name of the Mahendra Elec-tric Co. C/o Anwarbeg. I am satisfied that Champaklal's version andRatdlal's version regarding the opening of the account at the instance of therespondent is the correct version.

The result, therefore, is that though I have come to the conclusion thatthe corrupt practice denned in S. 123(5) of the Act has been proved tohave been committed, the petitioner has failed to prove that corrupt practicewas committed by the respondent himself or by some person with the con-sent of the respondent. There is no question of any election agent in theinstant case because it is common ground between the parties that the res-pondent had no election agent as contemplated by the Conduct of ElectionsRules, 1961.

The result, therefore, is that the election of the respondent cannot bedeclared to be void on the ground specified in S. 100(1) (b) of the Act.

As regards the ground under S. 100(1) (d) (iii) of the Act, the enlyresult of this particular corrupt practice is that three votes might possiblyhave been cast in favour of the respondent; but looking to the wade marginof 186 votes between the petitioner and the respondent, it cannot be saidthat the result of the election has been materially affected in so far as it con-cerned the respondent, the returned candidate. Under these circumstances,even though the corrupt practice has been found to have been committed,the ground under S. 100(1 )(d)(ii) cannot be of any assistance to the peti-tioner in setting aside the election of the respondent.

As regards the recount of the votes, I have already indicated above thaton the averments in the petition and in the light of the decision of theSupreme Court in Jaber Singh v. Genda Lal.(2) what I have n do is toscrutinize the rejected votes and see whether from those rejected votes anyvotes can be said to have been cast for the petitioner and wrongly held tobe invalid by the Returning Officer concerned. I have carefully gonethrough the rejected votes of each of the booths in this constituency andapplying the test laid down in rule 56 of the Conduct of Elections Rules,1961, I have ascertained that out of the rejected votes, 62 votes should beheld to have been cast for the petitioner; and thus the difference betweenthe two candidates, the petitioner and the respondent, would be narroweddown 186 votes to 124 votes, so far as the rejected votes are concerned.On the averments in the petition, as I have indicated above, it as not possibleto grant a general recount of the votes and that is why I have confined my-self to the scrutiny of rejected votes in so far as the votes which should havebeen taken to be in favour of the petitioner were wrongly rejected and werewrongly held to be invalid by the Returning Officer.

As regards the reception of votes, which were void, both in the petitionas well as in the Recriminatory Statement, allegations were made that thevotes of several persons who were dead or absent from the constituencyon the day of the poll were cast by some persons impersonating those elec-tors and thus void votes were received by the Presiding Officer and thenwere ultimately taken into consideration by the Returning Officer. Thoughthe allegations regarding the death of many persons and absence of manj

(2) A.T.R. 1964 S.C. 1200

14 J . C PATEL V. A. A. MIRJA [VOL. XXXII

persons were made in Annexure "A" to the petition, ultimately it was foundthat there was no evidence regarding the death of Khatki Fatmabai Rahim-bhai and so far as Ahmedshah Divan was concerned, according to the evi-dence of Shivkumar Trivedi, Sanitary Inspector of Petlad Municipality, whohas produced the relevant entries in the Birth and Death Register, Ahmed-shah Divan died on March 4, 1967, and was, therefore, alive on the day ofthe poll. There is no evidence regarding the death of Muljibhai and SaiyadNaminlaabibi from the list of dead persons shown in Annexure "A". Thus,through the evidence of Shivkumar Trivedi the petitioner has been able toestablish that 10 of the persons whose names are shown in Ex. "A" asthose of dead persons were in fact dead on the day of the poll.

As regards the list of persons who are alleged to have been absent asshown in Part 11 of Ex. "A", the petitioner has been able to establish thatthe following persons were absent from Petlad on the day of the poll viz.,Shaikh, Ajimiya Huseinmiya, Shaikh Chhotanbibi, Ajimiya, RojabhaiRebari, Mafatlal Rajabhai, Abdulbhai Rosabhai and Bibisaheb Deshbhai.So far as Rebari Nemabhai was concerned, he was issued a postal ballot-paper because he was on election duty and an appropriate certificate hasbeen issued in his name and from the marked list of voters maintained ateach Polling Station, I have been able to ascertain that Rabari Nemabhai hasvoted on a postal ballot paper and nobody has voted on his personal ballotpaper at the polling booth. Thus the petitioner has been able to establishthat out of the different persons, ten persons were dead and six personswere away from Petlad and could not have exercised their votes personally.

So far as the respondent is concerned, through the evidence of DahyabhaiKhushalbhai Patel. Respondent's witness No. 10, the respondent has beenable to establish that Somabhai Dajibhai Patel was dead on the day of thepoll. Therefore from the list of persons annexure as Schedule "A" to theRecriminatory Statement, only one person Patel Somabhai Dajibhai isshown to ihave been dead at the date of the poll. As regards Part II cfSchedule 'A" to the Recriminatory Statement, evidence has been led to showthat 21 persons from that list in part II, all from Dharmaj, were absent onthe day in question, Kunjbala Ravibhai, one of the persons mentioned inthat list has been examined and she has stated that she and her neiceNaliniben, were both away from Dharmaj and, therefore, were not in aposition to vote at Dharmaj at the date of the poll. The respondent hasled evidence of Dhirbhai Buljibhai Patel, Respondent's witness No. 8, toshow that the remaining 19 persons, all from Dharmaj, were away fromDharmaj on the day of the poll and, therefore, could not have exercisedtheir votes at Dharmaj on the day of the poll. The learned counsel for thepetitioner in his cross-examination of Dhirubhai has elicited that on the dayprevious to the day of the poll, Dhirubhai and his co-workers had checkedup through their workers about those persons who had gone to Africa.They had collected the information and a list of such absentees had beenfurnished to the Congress Party Polling Agents. Now so far as Dhirubhaiis concerned, dn his examination-in-chief he has mentioned that he kneweach of the different 21 persons, who according to the respondent, wasaway from Dharmaj and further that each of these 21 persons was awayfrom Darmaj either because that person was in Africa or though not inAfrica, in the knowledge and information of Dhirubhai, was not present inDharmaj. Dfoirubhai's evidence was sought to be challenged by the peti-tioner on the ground that Dhirubhai's information about" the "absence of

E.L.R.] J . C. PATEL V. A. A. MIRJA 15

these 21 persons from the town of Dharmaj is heresay evidence and, there-fore, should be rejected; but I am unable to accept this contention on behalfof the petitioner. So far as Dhirubhai is concerned, he is an active workerof the Congress party for about 15 years and for several years he had beenworking as Secretary of the Petlad Taluka Congress Committee and on theday of the poll Dhirubhai was looking after all the five Polling Booths atDharmaj. Throughout the day he was moving from one booth to anotherat Dharmaj and being a resident of Dharmaj, he knew many persons atDharmaj. Under these circumstances, when Dhirubhai has deposed in bisexamination-in-chief about the absence of each of the 21 persons set outin Part II of Schedule "A" to the Recriminatory Statement, it cannot besaid that Dhirubhai is giving evidence purely on heresay. Dhirubhaibecause of his long residence in Dharmaj and his contacts with the residentsof Dharmaj has personal knowledge about these persons who will away fromDharmaj and there is no reason to discard Dhirubhai's evidence on thisscore.

Even if I were wrong on this conclusion of Dhirubhai's evidence, itwould affect only 19 persons and assuming that each of those 19 personsvoted for the petitioner and the respondent has not been able to establishthe absence of those 19 persons from Dharmaj, looking to the difference of124 votes between the petitioner and the respondent, the result of the elec-tion would not be materially affected even if those 19 votes are not to betaken out from the total of the petitioner's votes.

In order to check the votes of these persons who were either dead orabsent from the constituency on the day of the poll, I myself looked intothe marked lists here the number of the ballot paper issued to the differentvoters was mentioned at the time of the polling. No. inspection of thesemarked lists was given to either side and maintaining also late secrecy ofthe ballot paper I have tried to ascertain the votes cast in the names ofthese dead and absentee persons. After such check and looking at themarked lists and also at the ballot papers in question, it has been foundthat so far as the evidence led by the petitioner is concerned, out of the10 dead and 6 absentee voters, in case of 6 persons no ballot papers wereissued against their respective names and 10 votes attributable to these deadand absentee voters were found to have been cast for the respondent. Asregards the town of Dharmaj, out of the votes of 1 dead and 21 absenteesfrom Dharmaj, it was ascertained after checking on the marked list and onthe ballot-papers that in 3 cases no ballot papers were at all issued andtwo ballot papers could not be traced at all. As regards the remaining17 votes, 16 votes were found to have been cast for the petitioner and 1vote was found to have been cast for the respondent.

Therefore, as a result of the recount, both as regards the rejected votesand as regards the votes of dead and absentee persons, in view of the aver-ments in the petition and in the recriminatory statement, it has been ascer-tained that to the total votes declared to have been received by the petition-er 62 votes which were wrongly rejected as invalid should be added andfrom the total thus arrived at 16 votes should be deducted as votes of deadand absentee voters and which were thus void votes. From the total votesreceived by the respondent, 11 votes have to be deducted as votes of deadand absentee persons. The result, therefore, is that after the additions and.deductions, the lead of 186 votes which the respondent was declared tohave over the respondent, is reduced to 129 votes and, therefore, the result

l6 J. C. PATEL V. A. A. MIRJA [VOL. XXXIL

of the election so far as it concerned the respondent, the returned candidate,cannot be said to have been materially affected by the reception of voteswhich were void or by improper rejection of any votes. The result, there-fore, is that so far as this ground is concerned, the petition must fail andthe result of the election in favour of the respondent cannot be declared tobe void. That being the case, the question of declaring the petitioner thereturned candidate can never arise.

I now answer the issues as follows:—

Issue No. (1) In the affirmative, as regards the incident of Car No.GJH-108.

Issue No. (2): As regards Car No. GJH-108, it was procured by therespondent and was used for free conveyance of the three women votersreferred to an the judgment.

Issue No. (3): Not pressed.

Issue No. (4): In the affirmative.

Issue No. (5): Not necessary.

Issue No. (6): In the negative.

Issue No. (7): First part does not arise. Second part in the negative.

Issue No. (8): In the affirmative as to both parts.

Issue No. (9): First part in the affirmative. Second part does not arise.

Issue No. (10): In the negative.

Issue No. (11): In the negative. Issues on the Recriminatory State-ment.

Issue No. (1): In the negative as to both parts.

Issue No. (2): Does not arise.

Issue No. (3): In the affirmative as regards 1 dead person and 20 ab-sentee persons. Second part does not arise.

Issue No. (4) Does not arise.

Looking to the fact that the petitioner, though he has lost in the iur-.it-petition, has succeeded on most of the issues of fact and also looking-to th-:-fact that the petitioner has also succeeded so far as ground of improperrejection of votes is concerned and also on the ground of receptio:. of v'jjrivotes is concerned, and also looking to the fact that on the Recriminator*Statement the respondent has not pressed the issue of corrupt practice, inmy opinion, the fair order as to costs will be that each party should bearits own costs.

In the result, this Election Petition fails and is dismissed with no orderas to costs. No order as to costs on the Recriminatory Statement.

Petition Dismissed.

E.L.R.] D. T. MAYANNA V. Y. K. RAMAIAH

IN THE HIGH COURT OF MYSORE AT BANGALORED. T. MAYANNA

V.Y. K. RAMAIAH AND ANR.

(GOPIVALLABHA IYENGER, J)

October 19,1967

Ballot Papers—Inspection of—Election petition must contain particularsdj ballot papers—Secrecy of ballot paper not violated by notingnumber at the time of rejection.

The petitioner filed the election petition praying for inspection andrecount of the votes polled by the respondents and the rejected votes andfor a declaration that the election of the second respondent was void. Therespondent contended that the averments made in the petition were allgeneral and vague without a concise statement of material facts as requiredby s. 83(1) (a) of the Act. It was also particularly emphasised that inorder to justify an order for inspection, scrutiny and recount of rejectedballot papers it is incumbent on the petitioner to mention that numberof the ballot papers which have been wrongly rejected or wrongly countedand therefore the petitioner was not entitled to the relief prayed for.

HELD.—An order for inspection of ballot papers cannot be granted tosupport vague pleas made in the petition not supported by material factsor to fish out evidence to support such pleas. A candidate who seeks tochallenge an election on the ground that there has been improper reception,refusal or rejection of votes at the time of counting has ample opportunityof acquainting himself with the manner in which the ballot boxes werescrutinised and opened and the votes were counted. It was possible forthe petitioner to definitely set out which particular ballot paper was wronglyrejected or cast in favour of any particular candidate and why u waswrong. The statements made by the petitioner in this case did not bearany specific reference to any particular ballot paper. The inspection ofballot papers can only follow if definite particulars are mentioned' in regardto the ballot papers called in question in the petition.

(ii) Noting of the serial number of the ballot paper is prohibited onlyat the time of issuing of the ballot paper. There can be no violation ofthe secrecy of the ballot if the number of the ballot paper is noted downat the time of rejection of the ballot paper while counting.

Ram Sewak v. H. K. Kidwai, A.I.R. 1964 S.C. 1249; Jag jit Singh v.Kartar Singh, A.I.R. 1966 S.C. 773; Garni Veerappa v. Siddaveerappa,E.P. 5 of 1967 (Mys); Bhim Sen's case 22E.I.R. 288; referred to,

Election Petition No. 20 of 1967.K. Ramasubbaiah for the Petitioner.Yoganarasimhaiah for respondent No. 1C. R. Ethirajula Naidu and R. S. Mahendra for respondent No. 2

18 D. T. MAYANNA V. Y. K. RAMAIAH [VOL. XXXII

ORDER

GOPIVALLABHA IYENGAR, /.—When this petition came forevidence on 16th October, 1967 the second respondent's counsel submittedthat arguments may be heard on Issue No. IV and finding thereon maybe given. As the said issue is in the nature of a preliminary issue andonly the allegations made in the petition require to be considered, I heardarguments of the parties on the said issue and proceed to record my finding

.thereon. The IV issue reads:

"Does the petitioner establish that the facts alleged by him areenough to justify an order for inspection and recount of thedisputed ballot papers?

or

Are they vague and do not contain adequate statement of materialfacts and therefore should not be taken into consideration?"

The contention of the second respondent (hereinafter referred to asthe respondent) is that the Election Petition does not contain a concisestatement of the material facts on which the Petitioner relies, as requiredunder Section 83(1) (a) of the Respresentation of the People Act, 1951(hereinafter referred to as the Act).

It may be stated that this Election Petition relates to the GeneralElections held in February 1967 to the Mysore Legislative Assembly fromthe Huliyur Durga (General) Constituency, No. 56, the petitioner and therespondents being the contestants. The polling was held on 15th February,-1967 and counting took place on 20th February, 1967. A recount appearsto have been held at the instance of the petitioner on 23rd February, 1967and the results were declared on the same day. The petitioner secured15,050 votes, the first respondent secured 3,379 votes and the second

: respondent secured 15,126 votes. The number of rejected votes is 2,216.The second respondent was declared elected as he secured the largestnumber of votes. The petitioner has filed this petition under sections 100and 101 of the Act for a declaration that the election of the second respon-dent is void and that the petitioner is duly elected from the aforesaidconstituency.

The! statement of facts disclosing the grounds on which inspectionscrutiny and recount of the ballot papers are sought are:—

That the counting which commenced on 22nd February, 1967 wasscheduled to begin at 9 a.m. but actually began at 10.30 a.m. and lastedtill about 9 p.m.; the petitioner had 7 counting agents and he himselfwas also present at the counting; the scheme of counting was, ballot boxesof 6 polling stations at a time were opened, scrutinised and counted at6 different tables, 3 officers taking part in counting at each table; that thecounting officers made 4 bundles of papers, one relating to what wascalled the Doubtful Group, the other 3 pertaining to the three candidates;that the returning officer to whom the bundles were handed over after count-ing by the counting officer made a superficial check of all the papers, andaccepted the division effected by the counting officers; that the doubtfulpapers were all treated as rejected votes; that in the course of the counting

E.L.R.] D. T. MAYANNA V. Y. K. RAMAIAH 1 9

the petitioner and his counting agents observed that the counting officerstreated as doubtful the ballot papers of the following descriptions:—

(a) Papers in which the marking made by the voters was duplicatedon the paper in the process of folding the ballot paper;

(b) Papers bearing the soil marks on account of untidy handlingof the ballot papers by the voters, although the voters had ex-pressed their intention by making the requisite mark on thepaper;

(c) Papers in which the marking was partly indistinct on accountof the seal having insufficient ink; and

(d) Papers in which the seal had too much ink and thereforeproduced a wide dot instead of the cross on the ballot paper.

That these papers were later treated as rejected by the Returning Officer;that the petitioner and his agents pointed out to he counting officers thatthis was unjust and opposed to the Rules, as the ballot Daners clearlymanifested the intention of the voters and did not suffer from any of theinfirmities which would render them liable to be rejected. That the count-ing officers did not heed the objections of the petitioner and his countingagents nor did the returning officer set matters right and that he simplyokeyed the decision of the counting officers without goins into any details;that the above mentioned irregularities were observed althrough the dayuntil the end of the counting; that the petitioner lost many votes on accountof the abovesaid irregulariies; that the petitioner obtained a majority ofvotes in 35 polling stations out of 57 polling stations; that he had a leadof, at one stage, thousands of votes and maintained a lead though attenuat-ed gradually till the very last but one polling station; that the countingof the last polling station tilted the balance giving he second respondenta majority of 84 votes over the petitioner; that the rejection of the ballotpapers on the grounds mentioned above is wholly erroneous and contraryto the Rules; that the rejections violated the second proviso to Rule 56(2)which provides that a ballot paper shall not be rejected merely on theground that the mark indicating the vote is indistinct or made more thanonce, if the intention that the vote shall be for a particular candidateclearly appears from the way the paper is marked; that in all the papersmentioned above the intention of the voter clearly appeared on the ballotpaper but still the counting officers and the Returning Officer rejected themto the detriment of the petitioner, but for which the petitioner would havewon the seat himself; that as already stated at the end of the counting butbefore the Result Sheet was finalised and signed, the petitioner appliedin writing to the Returning Officer, pointing out that there were graveirregularities and there was no proper scrutiny of the ballot papers rejectedby the Returning Officer; that a representation was made that a recountwas necessary to determine the result of the election properly; that theReturning Officer was not ready to take any initiative himself and hadconsultations with his superior officers by telephone and finally accededto a partial recount from Polling Stations 43 to 57 on the ground thatwhen the counting was made of papers of those stations, there was failureof electric lights and that there may be mistakes on that account; that thepetitioner did not urge that he errors were due to failure of lights althoughsome mistakes might have crept in on that account and that his mainobjection was with regard to the improper scrutiny and illegal rejectionof the ballot papers, which had been marked in his favour. It is also

-2.O D. T. MAYANNA V. Y. K. RAMAIAH [VOL. XXXII

alleged that a recount was held by the Returning Officer on 23rd February,1967 with the result that the Petitioner lost 15 more votes, and the secondrespondent 23 votes It is therefore submitted that there was admittedly

.an error in the first counting and the recount was justified. The maingrievance of the petitioner is that the votes cast in his favour were improper-ly rejected. It is also stated in paragraph 12 of the petition that two ofthe votes belonging to him were mixed up with the votes of the first res-pondent. In paragraph 13 of the petition, the petitioner submits that inorder to determine the result of the election recount is necessary andtherefore he prays that the court should direct an inspection of the votesof the first and second respondents and the rejected votes and restorethose votes of the petitioner which are mixed up with those of the firstand the second respondents and further to restore to the petitioner thevotes of which he has been wrongly deprived by improper rejection of hisvotes. In paragraph 15 of the petition, the petitioner express an apprehen-sion that some of his votes might have got mixed up with the votes of therespondents, as the counting was rushed through and gave room for mistakes-He further submits in paragraph 16 of the petition that he obtained amajority of votes in 35 polling stations and is defeated by a narrow marginof 76 votes and that on a recount the majority was reduced from 84 to76. These circumstances, the petitioner submits, make it reasonable andnecessary to hold a recount in order to serve the ends of justice. Hefurther avers that it a recount is made he would not only get rid of themajority of 76 votes which the second respondent has ever him but hehimself would get a majority of more than 500 votes and would be entitledto be declared duly elected in place of the second respondent. On thebasis of the above averments in the petition, the petitioner is asking fora recount of the votes cast in favour of the first and second respondentsand also the rejected votes. The total number of ballot papers that arerequired to be inspected by the petitioner is therefore 20,271.

The respondent's counsel points out that the averments made in thepetition and se: out above are all of a general vague—character withoutbong a concise statement of material facts, as required by section 83(1) (a) of the Act. It is also particularly emphasised that in order tojustify an order for inspection, scrutiny and recount of rejected ballotpapers, it is incumbent on the petitioner to mention the number of theballot papers which have been wrongly rejected or wronglv counted infavour of any particular candidate in the statement referred to in Sec.83(1) of the Act. He contends that in the circumstances the petitioner isnot entitled to seek an inspection, scrutiny or recount of the ballot papers.

In support of the above contention, the learned counsel relies on thedecisions reported in A.I.R. 1964 S.C. page 1249 (RAM SEWAK v. //. K.KIDWAI) and in A.I.R. 1966 S.C. page 113—(JAGJIT SINGH v.KARTAR SINGH) and the decision of this Court in E.P. No. 5 of 1967{Ganji Veerccpa vs. H. Siddaveerappa). In A.I.R. 1964 S.C. page 1249

*the Supreme Court sets out two conditions to justify the court to make anorder for inspection of the ballot papers. The two conditions are:—

(i) That the petition for setting aside an election contains an ade-quate statement of the material facts on which the petitionerrelies in support of his case; and

I.L.R.] D. T. MAYANNA V. Y. K. RAMAIAH 21

(ii) the Tribunal is prima facie satisfied that in order to decide thedispute and to do complete justice between the parties inspec-tion of the ballot papers is necessary.

The Supreme Court further observes:

"But an order for inspection of ballot papers cannot be granted tosupport vague pleas made in the petition not supported bymaterial facts or to fish out evidence to support such pleas.The case of the petitioner must be set out with precision sup-ported by averments of material facts."

The Supreme Court also refers to the fact that the Rules framed under theR.P. Act, 1951, set up an elaborate machinery relating to the stage ofcounting of votes by the returning officer, and provide ample opportunityto the candidate who has contested the election or his agents to remainpresent and to keep an eye on any improper section which may be takenby the returning officer. After discussing the relevant provisions fromRule 53 to Rule 63 of the Conduct of Elections Rules, relating to theprocedure to be adopted for counting of votes, the Supreme Court observesthat:

"There can therefore be no doubt that at every stage in the processof scrutiny and counting of votes the candidate or his agentshave an opportunity of remaining present at the counting ofvotes, watching the proceedings of the returning officer, inspect-ing any rejected votes, and to demand a recount. Therefore,a candidate who seeks to challenge an election on the groundthat there has been improper reception, refusal or rejectionof votes at the time of counting, has ample opportunity ofacquainting himself with the manner in which the ballot boxeswere scrutinised and opened and the votes were counted. Healso had opportunity of inspecting rejected ballot papers, andoi demanding a recount. It is in the light of the provisions ofSection 83(1) which require a concise statement of materialfacts on which the petitioner relies and to the bad opportunitywhich a defeated candidate had at the time of counting, ofwatching and of claiming a recount that the application forinspection must be considered."

The Supreme Court also prescribes that to support the petitioner's claimfor setting aside the election, the petitioner has to make precise allegationsof material facts which having regard to the elaborate rules are or must bedeemed to be within his knowledge. Keeping the above principles in mind,there is no doubt that it is possible for a candidate like the petitioner todefinitely set out which particular ballot paper is wrongly rejected or castin favour of any particular candidate and why it is wrong. The statementsmade by the petitioner in this case do not bear any specific reference toany particular ballot paper. It must also be noted that while dealing withthe following observations of the Supreme Court in 22 E.L.R. page 288(Bhim Sen's case) that:

"definite particulars about the number and nature-of the void votesthat had been—counted could only be supplied after inspectionof the ballot papers";

2 2 D. T. MAYANNA V. Y. K. RAMAIAH [VOL. XXXIF

they state that those observations were not intended to be a general state-ment of the law that whenever an allegation is made in petition to set asidean election that void votes have been included in the counting of votesreceived by a successful candidate, definite particulars with regard to thesaid void votes may only be supplied after the ballot papers are inspectedand that a defeated candidate may claim inspection of the ballot paperswithout making any specific allegations of material facts and without dis-closing a prima facie case in support of the claim made. This indicatesthat before a petitioner can ask for scrutiny and inspection of the ballotpapers, he must mention definite particulars with regard to the votes inrespect of which he complains. Therefore, the inspection of ballot paperscan only follow if definite particulars are mentioned in regard to theballot papers called in question in the petition. The inspection of the ballotpapers cannot precede the definite particulars being given.

Sri K. Ramasubbiah, the learned counsel for the petitioner invited myattention to paragraph 10 of the above decision, wherein the avermentsmade by the election petitioner in that case are set out. He points outthat the said allegations are vague and merely denote a belief on the partof the petitioner therein,—while the averments in the present case are notof the same nature. It is difficult to accept this contention. Keeping inview the observations of the Supreme Court in the decision referred toabove, and examining the several allegations made in the petition it cannotbe said that the comment made by the respondent's counsel that the aver-ments made by the petitioner are general and vague is without justification.

In A.I.R. 1966 S.C. page 773, the Supreme Court examined the scopeand the significance of Section 83(1) (a) of the Act and state that:

"'Vague or seneral allegations that valid votes were improperlyrejected or invalid votes were improperly accepted would notserve the purpose which Section 83(1) (a) has in mind. Anapplication made for inspection of ballot boxes must givematerial facts which would enable the Tribunal to considerwhether in the interests of justice the ballot boxes should beinspected or not. In dealing with this question the importance.of the secrecy of the ballot papers cannot be 'gnored and itis always to be borne in mind that statutory rules framed underthe Act are intended to provide adequate safeguard for theexamination of the validity or invalidity of votes and for theirproper counting."

They also observe that:

"Care must be taken to see that election petitioners do not get achance to make a roving or fishing enquiry in the ballot boxesso as to justify their claim that the returned candidate's elec-tion is void."

No doubt they have refrained to lay down any hard and fast rule in thematter.

It is not necessary at present to analysis the Scheme of the Rules inChapter V of the Conduct of Elections Rules, as the Supreme Court has,only aftei such analysis, come to the conclusions set out above. From the

C.L.R.] D. T. MAYANNA V. Y. K. RAMAIAH 23

observations of the Supreme Court it is clear that the election petitionerhas the knowledge relating to the particulars of the ballot papers andrejection of the same. The fact that the candidate had ample opportunityto examine the voting papers before they were counted implies that injespe:t of each voting paper the petitioner is in a position to set out withprecision his objections for its acceptance or its rejection. He is also in aposition to note down the ballot paper numbers. It is only if the ballotpaper numbers are given that the particular ballot papers in regard to whichthe petitioner complains can be picked up and scrutinised. In the absenceof such information, which the petitioner should know or should be deemedto know, any inspection of ballot papers would be merely a roving andfishing inspection and the purpose of Section 83(1)(a) is to preventsuch consequence. The elaborate provisions affording reasonable oppor-tunities to the candidates and their agents to inspect the ballot papers areto enable them to raise objections and to note down the numbers of theballot papers in respect of which the objections are raised. It would notbe unreasonable to expect the candidate or the counting agent present atthe time of counting to bear in mind that there may arise a contingencyto file an election petition when the particulars in regard to the number ofballot papers concerned will have to be mentioned. Shri K. Ramasubbayya,the learned counsel for the petitioner contended that it would be against theprovisions of Rule 54 of the Conduct of Elections Rules, 1961, to note downthe number of the ballot paper, as by doing so, the secrecy of voting wouldbe violated. It is pointed out that in Rule 54 it is provided that the Return-ing Officer shall before he commences the counting read out the provisionsof Section 128, to such persons as may be present. Section 128 providesfor the maintenance of secrecy of voting. It does not make any referenceto noting the number of the ballot paper but only emphasises the import-ance of maintenance of secrecy of voting by prescribing a penalty for breachof the same. It is not possible to understand how secrecy of voting isviolated by a candidate or his agent by noting down the number of theballot paper in regard to which he objects at the time of counting. It isonly if the serial number of the electoral roll can be connected with thenumber of the ballot paper, the secrecy would be breached and not other-wise. At the time of counting, it is not possible to correlate the serialnumber of the electoral roll with the number of the ballot paper. There-fore, by noting down the number of the ballot paper, the secrecy of ballotis not violated. On the other hand, it is necessary to note down the numberof the ballot paper so as to make precise allegations as to how the saidballot paper ought or ought not to have been rejected. Reference toRule 56, Clause (3) in this connection would be relevant. It providesthat before rejecting any ballot paper under Sub-rule (2), the ReturningOfficer shall allow each counting agent present, a reasonable opportunityto inspect the ballot paper but shall not allow him to handle it or anyother ballot paper. Rule 4 provides that the Returning Officer shallendorse on every ballot paper which he rejects letter 'R' and the groundsof rejection in an abbreviated form either in his own hand or by means ofrubber stamp and shall initial such endorsement. Rule 3 implies that thecounting agent has reasonable opportunitv to inspect the ballot papermeaning thereby that he can look at both sides of the ballot paper andinspect it. This would afford a chance to the counting agent to note downthe number of the ballot paper as also other particulars relating to it.Hence, I cannot accept the contention of Sri Ramasubbayya that the count-ing agent is not permitted to note the serial number of the ballot paper.

1 E.C.—3

2 4 D. T. MAYANNA V. Y. K. RAMAIAH [VOL. XXXir

The prohibition against the noting of the number of the ballot paper isprovided in Rule 38 of the Conduct of Elections Rules, 1961. Rule 38,sub-rules (2) and (3) are as follows:—

"38(2). At the time of issuing a ballot paper to an elector, thePolling Officer shall record the serial number thereof againstthe entry relating to the elector in the marked copy of theelectoral roll."

"38(3). Save as provided in sub-rule (2), no person in the pollingstation shall note down the serial numbers of the ballot papersissued to particular electors".

As is clear from the above provisions, noting of the serial number of theballot paper is prohibited at the time of issuing the ballot paper. This isunderstandable, because if a person notes down the number of the ballotpaper, corresponding to the serial number in the electoral roll and at thetime of the counting, the number of the ballot paper becomes known to thecounting agent, it would be possible to correlate the serial number on theelectoral roll with the exercise of franchise thus leading to breach of secrecyof ballot. The position at the time of counting is quite different as themarked electoral roll with the number of the ballot paper is not available.to the counting agent. The marked copy of the electoral roll will be ina separate sealed packet as prescribed under Rule 46 and it is not openedat the time of counting. This is another reason why it is not possible tounderstand how there can be a violation of the secrecy of the ballot if thenumber of the ballot paper is noted down at the time of rejection of theballot paper while counting.

The respondent's counsel invites my attention to the decision of thisCourt in Election Petition No. 5|67 (Ganji Veerappa v. H. Siddaveerappa)in which it is observed as follows:—

"When the petitioner's election agent had ample opportunity tonote the particulars of the ballot papers said to have beenimproperly rejected, the petitioner should have given the serialnumbers and the polling station numbers of the said ballotpapers and the nature of the objection in relation to the saidballot papers,"

In making these observations, his Lordship Govindabhat, J. has relied uponthe two decisions of the Supreme Court which I have referred to earlier.The above decisions of the Supreme Court proceed on the footing that thepetitioner who is a defeated candidate has at the time of counting ampleopportunity to examine the voting paper which has been improperlyrejected and hence he knows the reasons for the rejection and also theparticulars of the paper rejected. In these circumstances, I agree with theobservations of this court cited above. On a careful consideration cf theseveral allegations made by the petitioner in his Election Petition seekingan inspection of the ballot papers, I am of the opinion that they are vagueand general if an inspection is ordered, it will lead to a fishing enquiry witha view to find out some material to support the petitioner's case that hewould have secured a larger number of votes than what he has secured atpresent. The allegation in regard to improper acceptance of votes infavour of the respondents are also vague and indefinite. They do notcontain any material facts,—let alone the number of the ballot paper—tojustify a recount of the ballot papers. The mere fact that after recountthe margin of 34 votes was reduced to 76 does not justify any conclusion

«X.R. ] D. T. MAYANNA V. Y. K. RAMAIAH 25

that there has been an improper reception of ballot papers in favour of<be respondents. This cannot again be taken as a precise or a concisestatement as required by law to justify a recount.

. Shri Ethirajulu Naidu, the learned counsel for the respondents furtherpointed out that the petitioner has failed to give the exact number of voteswhich ought to have been counted in his favour. The petitioner merelystates in paragraph 16 that if a fresh counting is made, he would get morethan 500 votes than what the respondent has secured and would be entitled

to be declared elected. It is submitted that the petitioner instead ofmentioning 500 could have mentioned any other figure. It would meanthat there is no definiteness in this allegation made by the petitioner. Thereis much force in this contention also. I hold that the allegations in thepetition are vague and do not satisfy the requirements of Section 83(1) (a)•of the Act. Therefore, my findings on both parts of the fourth issue areagainst the petitioner.

The first 3 issues are as follows:—

Issue No. I.—Does the petitioner prove that the Counting Officerstreated as doubtful the ballot papers of the following descriptions?

(a) Papers in which the marking made by the voters was duplicatedon the paper in the process of folding the ballot paper;

(b) Papers bearing the soil marks on account of untidy handlingof the ballot papers by the voters, although the voters hadexpressed their intention by making the requisite mark on thepaper;

(c) Papers in wMch the marking was partly indistinct on accountof the seal liaving insufficient ink;

(d) Papers in which the seal had too much ink and therefore pro-duced a wide dot instead of the cross on the ballot paper; andlater the Returning Officer rejected the same?

Issue No. II.—Was the rejection of the above said ballot papers whollyerroneous and contrary to Rules and the scrutiny and counting of theabove ballot papers are violative of the provisions of Rule 56(2) of theConduct of Elections Rules?

Issue No. III.—Does the Petitioner prove that there has been improperscrutiny and illegal rejection of the ballot papers marked in favour of the-petitioner?

It is not disputed that these issues relate to the inspection and scrutinyand recounting of the ballot papers. In view of my finding on Issue No, IV,Issues Nos. I, II and III do not arise for consideration.

It is only on the remaining Issues that the petitioner can lead evidence.:He may do so.

(Sd.) K. R. GOPIVALLABHA IYENGAR,

JUDGE,19-10-67.

2 6 D. T. MAYANNA V. Y. K. ftAMAIAlf (VOL. XXXli

ORDER

19-10-1967.

GOPIVALLABHA IYENGAR. J.—It is unnecessary for me to set out iddetail the averments made in the Election Petition relating to Issue Nos.I to IV as I have already set them out in my order giving a finding on theIVth issue in the case. The said order may be read as a part of this order..

The remaining Issues on which the petitioner was to lead evidence arras follows:— •;

Issue No. V(a).—Does the petitioner prove that the second Respondenthas been the recipient of the votes exercised in the names of persons who-are dead, or non-residents, or absent being on election-duty itself, asdetailed in the annexure to the petition giving the particulars of voters whoare dead, or non-residents, or absent being on election duty itself andwhose votes have been exercised in favour of the second respondent?

(b) Docs the Petitioner prove that in the above circumstances theresult of the election in so far as it concerns the second respondent hasbeen materially affected under Sec. 100(1 )(d)(iii) of the R. P. Act?

Issue No. VI.—Does the petitioner prove that in the Polling StationsNos. 44, 46, 47 and 48 the supporters of the second respondent rushedcrowds of people to the Polling Stations at the closing hours on the pollingday and taking advantage of the situation managed to get all of them tovote for the second respondent in the names of persons whose votes had'not been exercised so far and that by this there has been an improperacceptance of any votes which are void, and as a consequence of which theresult of the election in so far as the second respondent is concerned hasbeen materially affected under Sec. 100(1 )(d)(iii) of the R. P. Act?

Issue No. VII.—Does the petitioner prove that for the above reasons,the election of the second respondent is liable to be declared void and thathe would get a majority of votes in his favour and therefore entitled tobe declared as duly elected? Regarding issues Nos. V(a) and (b), VIand VII, it is alleged in paragraph 17 of the petition that the secondrespondent has been the recipient of votes exercised in the names of personswho are dead or non-residents or absent being on election duty itself andthat the supporters of the second respondents have procured these votesto the second respondent. The details of such votes are mentioned in theAnnexure attached to the petition. It is also averred that in PollingStation Nos. 46, 47 and 48 the supporters of the second respondent rushecfccrowds of people to the Polling Stations at the closing hours on the pollingday and taking advantage of the situation managed to get all of them to votefor the second respondent in the names of persons whose votes had notbeen exercised so far and thus there was an improper acceptance of severalvotes which are void and as a consequence the result of the election in so>far as the second respondent is concerned has been materially affected.These allegations have been denied by the second respondent as being false-and unfounded. He also submits that the details mentioned in theAnnexure are not correct. The second respondent also denies the allega-tions made in paragraphs 18 and 19 of the Election Petition. On the-basis of these pleadings, the Issues Nos. V(a) and (t>)> VI and VII areframed

E.L.R.] D. T. MAYANNA V. Y. K. RAMAIAH 2 7

As the second respondent has also made an application under Section97 of the Representation of the People Act, 1951, Issue No. VIII wasframed as hereunder.

Issue No. VIII.—(a) Does the Second respondent prove that thepetitioner and his agents at his instance have procured votes in the namesof persons who were dead or who were not present at the place to exercisetheir franchise, as per particulars furnished in Annexure "B" attached tothe recrimination filed by the second respondent, under Sec. 97 of theRepresentation of the People Act, and the votes so polled should not becounted in favour of the petitioner?

(b) Does the second respondent prove that on account of the saidimproper reception of the invalid votes the result of the election in so faras the petitioner is concerned would be materially altered?

It is undisputed that the burden of proving issues Nos. V(a) and (b) ,VI and VII is on the petitioner and the petitioner has not chosen to adduceany evidence. In these circumstances my findings on the above Issues areagainst the petitioner.

In view of the above, it has become unnecessary to consider IssueNo. VIII(a) and (b) pertaining to the recrimination filed by the secondrespondent.

In the result, this Election Petition fails and the same is dismissed withcosts of the second respondent. Advocate's fee Rs. 500/-.

Petition Dismissed.

28 SADHU RAM V. HIRA SINGH PAL [VOL. XXX«

IN THE HIGH COURT OF DELHI, HIMACHAL BENCH, SIMLA,

SADHU RAM & ORS.

v.

HIRA SINGH PAL

(S. N. ANDLEY J.)

October 20, 1967.

Representation of the People Act, 1951 s.J77_as amended in 1956—Theword "incurring" means pecuniary liability on the candidate himself.The petitioner challenged the election of the respondent on the grounds

chat (i) the statutory limit of election expenses had been exceeded by therespondent; and (ii) the respondent was guilty of corrupt practices in issuingfalse statements and propaganda. It was contended that expenses of Rs.1428.44 on account of hire charges of a jeep were incurred by the respon-dent for his election campaign, that thereby he exceeded the limit of Rs.2,000 permitted under the Act and thus there was corrupt practice becauseof the contravention of Section 77 of the Act.

HELD—(i) It was necessary for the petitioner to prove that the amountin respect of the hire of the jeep was actually incurred by the respondenthimself or, in the absence of an election agent as in this case, by any otherperson under an authorisation of the respondent. The word ''incurring"in section 77 necessary postulates pecuniary liability on the candidatehimself even though the expenses may have been authorised by the candi-date or his election agent. The petitioners had not discharged the burdenof proving that the expenses in relation to the jeep were incurred as auth-orised by the respondent within the meaning of section 123 (6) of the Act.

(id) The petitioners had not proved that the statements imputed to therespondent were made by the respondent. Nor had it been proved thatthe statements, even if made, were statements reasonably calculated to pre-judice the prospects of the defeated candidate's election.

Ramaya Singh v. Baij Nath Singh A.I.R. 1954 S.C. 749; Sheopat-singh v. Marsihehandra A.I.R. 1958 Raj. 324; Biresh Misra v. Ram NathSharma A.I.R. 1959 Assam 139; Muthiah Chettiar v. Genesan A.I.R. 1960Madras 85; referred to.

Civil Original Petition No. 7 of 1967.

M.R. Gupta, for the petitioner.

H.S Thakur, for the respondent.

«S'. N. Andley, J. This petition challenges the election of the respondentto the Himachal Pradesh Vidhan Sabha in the 1967 elections. The threepetitioners are voters and electors.

E.L.R.] SADHU RAM V/ HIRA SINGH PAL 2 9

A notification dated January 13, 1967 was issued by the competentauthority under the Representation of People Act, 1951 (Act 43 of 1951),hereinafter referred to as "the Act", for election to the Himachal PradeshVidhan Sabha from the 9 Arki Assembly Constituency of Himachal Pra-desh.

Four persons, namely, Nagin Chand Pal, Kameshwar Pandit, Hari Dassand the respondent, Hira Singh Pal, filed their nomination papers on orbefore January 20, 1967 which was fixed for the purpose. Nagin ChandPal and Kameshwar Pandit aforesaid withdrew their candidature and therewas a straight contest between the respondent and Hari Das aforesaid.

Elections were held on February 18,1967 and the result was declaredon February 22, 1967. The respondent was declared elected upon theresult of the poll which was as follows :

Hira Singh Pal, respondent 11,77|8 votesHari Dass 4,070 votesInvalid votes 485

The petitioners, as electors whose names were entered in the voterslist for the aforesaid constituency, filed this petition before the learnedJudicial Commissioner, Himachal Pradesh at Simla on April 6, 1967challenging the respondent's election mainly on two grounds. The firstground is that the statutory limit of election expenses, which for HimachalPradesh had been placed at Rs. 2,000/-, had been exceeded by the respon-dent. The second ground is that the respondent was guilty of corrupt pra-ctices in issuing false statements and propaganda against Hari Dass.

The respondent, in his written-statement, raised various preliminarypleas and, as to the two main grounds stated above, denied the same.

On account of Re-organisation of Himachal Pradesh, this election peti-tion came to be dealt with by this Court. Issues were framed in thiscase by Hardy J. who also recorded a part of the evidence.

The first issue was formulated as follows:

"Whether the petition does not give necessary particulars of thecorrupt practices alleged therein and if so what is its effect?"

On June 8, 1967, the counsel for the repondent made a statement be-fore Hardy J. that the respondent did not wish to press this issue but itwas urged that the petitioners should not be allowed to lead any evidencein respect of instances other than those which have been specifically men-tioned in paragraph 5 of the petition: Thereupon, Hardy J. recordedan order stating : In view of the statement of the respondent's counselthe issue is decided in favour of the petitioners and against the respondentbut the petitioners will not be allowed to lead any evidence which is notrelevant to the instances that have already been given by them in the peti-tion.

Thereafter, the parties went to trial on the other issues and led oralevidence and addressed arguments.

Paragraph 5-A of the petition which gave rise to issues 2 in 7 states :

"The respondent was under a statutory obligation to maintain ffeaccounts as required by section 77 of the Representation of the

JO SADHU RAM V. HIRA SINGH PAL [VOL. XXXU

People Act read with Rule 86 of the Conduct of ElectionsRules of 1961. The respondent could not incur more thanRs. 2,000/- as his election expenses as prescribed by Rule 90of the said Rules. The respondent has committed a breachof both these provisions as contained in the said Rules, apartfrom the flagrant disregard of section 77 of the Act. The res-pondent filed a Return of his election expenses before theDistrict .Election Officer on 23-3-1967 at Kasumpti showingRs. 1,860-50 p. as his election expenses. In fact, he has notincluded in this amount the expenses of conveyance amountingto Rs. 1,828-44P. as per detail given below:—

(i) Hire charges for Taxi No. 4792 paid to the agent of theowner Shri Bakshi Ram Rs. 400-00.

(ii) Hire of jeep No. HIM 4235 Rs. 1428-44 P. paid toHimachal Gov. Transport Department for use from 1-2-67 to

19-2-67.

This expense is directly in connection with his election and itsomission will entail the necessary consequences under the law.The respondent paid Rs. 250/- while applying for Congressticket. He has not shown this expense in the Return. Therespondent has forfeited also a sum of Rs. 500/- to the Hima-chal Pradesh Congress Committee after the date of the publica-tion of a notice of election and this amount has also beensuppressed in the Return of election expenses. Thus the res-pondent has filed a false election expenses return in as muchas large sums have been omitted with a view to cover up thelapse of transgressing maximum limit prescribed under therules. An attested copy of election expenses submitted by therespondent is filed herewith as annexure'A'

In his written-statement, the respondent answered these allegationsthus :

"It is denied that the respondent committed the breach cf Rules 86and 90 of the Conduct of Elections Rules, 1961, and thathe committed any disregard of section 77 of the Represnta-tion of People Act, 1951. He did not incur any expenditureover and above that shown in his Election Expenses return.He did not incur the expenses amounting to Rs. 1,828-44 P.as alleged in the petition.

The respondent did not hire taxi No.4792 at all. He did not alsopay Rs. 400/- to anybody as hire charges for any such taxi.The petitioners in collusion and conspiracy with the defeatedcandidate, Sri Hari Dass, and other persons interested in himappear to have fabricated false evidence.

The respondent had not hired jeep No. HIM-4235 from the Hima-chal Pradesh Government Transport. The said jeep was hiredby Shri Muni Lai, on behalf of the 'Lok Raj Samiti' and he paidtb.2 amount of Rs. 1,428-44, and not the respondent. ShriHari Dass.who was then transport Minister appears to havefabricated false evidence in this behalf.

.EX.R.I SADHU RAM V. HIRA SINGH PAL 3 r

The sum of Rs. 250/- paid by the respondent to the Himachal Pra-desh Congress for giving him Congress ticket for Kasumpti con-stituency was not an expense in furtherance of his election.In any case it was incurred long before 13-1-1967.

The sum of Rs. 500/- as security for undertaing not to fight againsta Congress candidate, in the event the ticket was refused wasnot an election expenses and the same was paid much before13-1-1967."

The petitioners filed a replication to the written-statement and withreference to these allegations stated :

"Para 5-A of the written-statement is wrong and is repudiated.Para 5-A of the Election Petition is reiterated in full beingcorrect. It is wrong for the respondent to state that he didnot hire Taxi No. 4792 and that he did not pay Rs.400/- ashire charges for the taxi to the Agent of the owner Shri Bakh-shi Ram. It is denied that the petitioners in collusion andconspiracy with Shri Hari Dass have fabricated any falseevidence.

It is re-aserted that Jeep No. HIM-4235 was hired by the respon-dent for his election campaign and the payment was alsomade by him. There was no such party as 'LOK RAJSAMITI' who was recognised by anybody. Shri Muni Laiwas the staunch supporter of the respondent. It is admitted bythe respondent that the jeep was hired by Shri Muni Lai, onbehalf of the alleged 'Lok Raj Samiti'. The respondent has notdenied that the jeep was not hired for his election campaign.The hire charges are also admitted. The words 'Lok Raj Samiti'must have been got written by the respondent or his supporterShri Muni Lai, just to fabricate the evidence which was falseto their knowledge. It is reiterated that the expenses of Rs.1,428-44P. on account of hire charges of the jeep No. HIM-4235 were incurred by the respondent for his election camp-aign and that he exceeded the limit of Rs. 2,000/- as permit-ted under the Act.

The sum of Rs. 250/- was covered under the election expenses.

The sum of Rs 500/- as security as mentioned an the ElectionPetition was forfeited after the date of withdrawal and thisexpenses clearly falls under the election expenses which therespondent has deliberately omitted to mention in the Returnof Election expenses. The respondent transgressed the maxi-mum limit of the expenses prescribed under the Rules.

These pleadings gave rise, as stated above to issues Nos. 2 to 7 whichwere framed thus:

2. Whether the respondent has kept separate accounts of electionexpenses and if so, what is its effect?.

3. Whether the respondent has committed the corrupt practice ofincurring or authorising the incurrings of expenses more thanRs. 2,000/- as detailed in para 5-A"of the petition?

32 SADHU RAM V. HIRA SINGH PAL [VOL. XXXf

4. Whether the amount of Rs. 250/- paid by the respondent as.application fee for getting Congress tic_ket can be treated asforming part of the election expenes: if so, what is the effect ofhis not showing the said sum in the Return of election expen-ses?

5. Whether the amount of Rs.500/- paid by the respondent and'forfeited to the Himachal Pradesh Congress Commitee, asmentioned in para 5-A of the petition, is not a part of his elec-tion expenses. If so what is the effect of this amountnot having been shown by the respondent in the Return?

6. Whether the respondent, his agents and supporters with his con-sent hired taxi No. 4792 for his election campaign and paidhire charges of Rs. 400/- to the Agent of the owner of thetaxi?

7. Whether the Jeep HIM-No. 4235 was hired by the respondent orhis supporters and agents with his consent and he paid Rs.l;428-44 as its hire charges to Hdmachal Pradesh GovernmentTransport Department or the said amount was paid on hisbehalf to the said Department?

It may be stated that at the time of arguments Mr. M. R. Gupta, learnedcounsel for the petitioners, stated that he would not press issue No. 6

So far as issue No. 2 is concerned, reference was invited to section 77of the Act as amended by section 42 of the Representation of the People(Second Amendment) Act, 1956 (XXVII of 1956), hereinafter referredto as "the Second Amendment. Act". Section 77 runs as under;

"Account of election expenses and maximum thereof-—(1) Everycandidate at an election shall, either by himself or by his elec-tion agent, keep a separate and correct account of all expendi-ture in connection with the election incurred or authorized byhim or by his election agent between the date of publication ofthe notification calling the election and the date of declarationof the result thereof, both dates inclusive.

(2) The account shall contain such particulars, as may be prescri-bed.

(3) The total of the said expenditure shall not exceed such amountas may be prescribed."

Rule 86 of the Conduct of Elections Rules, 1961, hereinafter referredfo as 'the Rules', provides;

"Particulars of account of election expenses:—

(1) The account of election expenses to be kept by a candidate orhis election agent under section 77 shall contain the followingparticular in respect of each item of expenditure from day today, namely:—

(a) the date on which the expenditure was incurred of authorised;

(b) the nature of the expenditure (as for example, travelling,postage or printing and the like):

E.L.R.] SADHU RAM V. HIRA SINGH PAL 33

(c) the amount of the expenditure—(i) the amount paid;(ii) the amount outstanding;

(d) the date of payment;

(e) the name and address of the payee;

(f) the serial number of vouchers, in case of amount paid;(g) the serial number of bills if any, in case of amount outstand-

ing;(h) the name and address of the person to whom the amount out-

standing is payable.

(2) A voucher shall be obtained for every item of expenditure un-less from the nature of the case, such as postage, travel byrail and the like, it is not practicable to obtain a voucher.

(3) All vouchers shall be lodged along with the account of election1

expenses, arranged according to the date of payment andserially numberd by the candidate or his election agent andsuch serial numbers shall be entered in the account under item(f) of sub-rule (1).

(4) It shall not be necessary to give, the particulars mentionedin item (e) of sub-rule (1) in regard to items of expenditure

for which vouchers have not been obtained under sub-rale (2)."

It is clear from a perusal of section 77 and Rule 86 that the candidateor his election agent has to keep a separate and correct account of allexpenditure in connection with the election incurred or authorised by himor by his election agent between the date of publication of the notificationcalling the election an thed date of declaration of the result thereof.

It is admitted by the respondent that he had no election agent. There-fore, by the terms of this section, the accounts contemplated by section 77of the Act were to be maintained by the respondent himself. The respon-dent has produced a copy book Exhibit R.W. 6/1 while he was being exa-mined in Court as his own witness which according to the respondent con-tains the account of all expenditure in connection with the election incurredor authorised by the respondent. The first page of this copy book is blank.The second page contains entries of expenses between January 20, 1967 andJanuary 28. 1967 showing a total of Rs. 1,487-90 p'aise. The third pageshows entries of expenses incurred between February 16, 1967 and Febru-ary 22, 1967. The third page also shows the total expenses incurred atRs. 1,795-50 Paise as expenses incurred in the aforesaid two periods andfurther shows an aggregate outstanding of Rs. 65/-.

In his statement, the respondent has stated:

I did not make the entries in Ex. R.W. 6/1, which is producedto-day. The entries in this account book are in the

handwriting of Anant Ram. He was not my election agent.It is correct that signatures of Anant Ram or mvse f do notaorjear in Fx. R.W. 6/1. Anart from Ex. R.W, 6|1, T hive noother account? relating to the election."

3 4 SADHU RAM V. H1RA SINGH PAL [VOL. XXXii

Although Anant Ram, the alleged writer of the entries in Exhibit R W.6/1 was cited as a witness for the respondent, he was not produced. Therespondent's counsel made a statement on September 14, ly67 that he did.not want to proauce Anant Ram as a witness because the accounts will beproduced by the respondent himself.

It is quite clear from the statement of the respondent himself that ac-counts have not been kept in accordance with the provisions of section / /of the Act. Nor do the accounts contain the particulars as required byRule 86. The answer to the first part of the issue, therefore, is that therespondent has not kept separate accounts of the election expenses as re-quired by law.

The question than is, what is the effect of the above finding? It is fairlyconceded by the petitioners' counsel that the non-maintenance of accountsin accordance with the law or the rules is not one of the grounds under-action 100 of the Act for the election to be void. My finding therefore,is that even though the provisions of section 77 of the Act and of the rulesin that behalf in so far as the keeping of separate accounts with particularshave not been complied with, the respondent's election on that ground alonecannot be set aside.

But, the petitioners' counsel has urged that the non-maintenance ofproper accounts should weigh against the respondent while determiningissues Nos. 3 to 7.

So far as issue no. 3 h concerned, it is the case of the petitioners thatthe respondent exceeded the statutory limit of Rs. 2,000/- which was fixedior Himachal Pradesh for election expenses. Admittedly, the respondenthas spent Rs. 1,860-50 Paise out of which Rs. 1,795-50 Paisa are statedio have been incurred and Rs. 65/,- are stated to be outstanding. Thetotal expenses including the outstanding fall short of Rs. 2,000 by Rs. 139-50Paisa. The case of the petitioners as laid in the petition was that the res-pondent incurred the following further expenses in addition to the expensesshown, namely.—

1. A sum of Rs. 400/- being hire charges for taxi No. 4792 paidto the agent of the owner Shri Bakshi Ram.

?, A sum of Rs. 500/- paid to the Himachai Pradesh CongressCommittee as application fee while applying for the Congressticket in December, 1966.

: , A sum of Rs. 750/ - paid by the respondent to the Himach^i!Pradesh Congress Committee in December 1966 as security forthe Congress ticket.

4. A sum of Rs. 1.428-44 Paisa being the hire of jeep HIM-4235paid to the Himachal Pradesh Government Transport Depart-ment for use of this jeep from February 1, 1967 to February19, 1967.

The amount of Rs, 400/- is the subject matter of issue no. 6. Thisissue as stated earlier, has been given up by the petitioners' counsel.

As to the amounts of Rs. 500/- and Rs. 750/-, it may be stated in rhepetition the application fee is stated as Rs. 250/- and the security statedas Rs. 500/-. It is, however, the common case of the parties that in fact therespondent-had paid to the Himachal Pradesh Congress Committee in

E.L.R.] SADHU RAM V, HIRA SINGH PAL 35

December 1966, Rs. 500/- as application fee for the Congress ticket andRs. 750/- as security.

With regard to the application fee of Rs 500/- and the security amountif Rs. 750/-, the petitioners' case is that in accordance with the conditions

of the application from (Exhibit PW. 1|1) which was made by therespondent to the Himachal Pradesh Congress Committee while applyingfor Congress ticket and the conditions laid down by the Himachal Prad-esh Congress Committee, these amounts were refundable only if the respon-dent contested the election as a Congress candidate. It is further thepetitioners' case that the application fee and the security were liable to beforfeited if the respondent contested the election agamst a Congress candi-date. The petitioners have further alleged that the Himachal PradeshCongress Committee refused o give its ticket to the respondent; that therespondent contested the election against the Congress candidate and thatby letter dated February 6, 1967 (Exhibit PAY. 1/3) addressed by theHimachal Pradesh Congress Committee to the respondent, these two-amounts of application fee and security were forfeited. The petitionersfurther contention is vthat the respondent became "a candidate" within themeaning of section 79 (b) of the Act in Decembei 1966 when he paidthese two amounts as, with the election in prospect, he began to hold him-self out as a prospective candidate. For this last proposition the peti-tioners relied upon the decision of the Supreme Court reported in.Khader Sheriff v. Munnuswami. A.I.R. 1955 Supreme Court 775.

The respondent's answer is that these two amounts of Rs. 500/- and:Rs. 750/- do not constitute election expenses within the meaning of section77 of the Act as amended by the Second Amendment Act and they saythat by virtue of the second amendment only such expenses are to be takeninto consideration as election expenses as have been incurred or authorizedbetween the date of the publication of the notification calling the electionwhich in this case was January 13, 1967, and the data of declaration ofthe result of the election, which fn this case was February 22, 1967. Theyfurther say that the Himachal Pradesh Congress Committee had no right toforfeit any of these two amounts as they have purported to have done bytheir aforesaid letter dated February 6, 1967 (Exhibit P.W. 1/3).

Now, the Second Amendment Act was passed in 1956 after the aforesaiddecision of the Supreme Court. Section 42 of this Act amended the lawrelating to election expenses as was contained in sections 44, 76, 77 and78 in the Act prior to the amendment. As a result of this amendmentonly thore expenses which were incurred by a candidate in relation to hiselection during the period specified in section 77 can be regarded as elec-tion expenses. The observations of the Supreme Court in the aforesaidjudgement related to the Act as it stood prior to the second amendmentand cannot be treated as law.

The petitioners contend that even if the second amendment has speci-fied the period in section 77 of the Act as it stands now, these two amountswould still be election expenses as they should fce deemed to have been in-curred on or about February 6, 1967 which falls between the two date spe-cified when thev were forfeited by the Himachal Pradesh Congress Com-mittee by their letter Exhibit F.W. 1/3. The question, therefore, is whetherthe Himachal Pradesh Congress Committee had anv right to forefeit thesetwo amounts. The petitioners have proved only the application (Exhibit

3 6 SADHU RAM V. HIRA SINGH PAL [VOL. XXXII

P.W. 1/1) which was made by the respondent when applying for the Cong-ress ticket and they have not produced and proved any other documentwhich might give any right to the Himachal Pradesn Congress Committeeto forfeit these two amounts. One of the underta icings recorded in thisapplication upon which the petitioners rely in these terms:—

"I here by give an undertaking tfiat if I am not selected for anyconstituency on behalf of the Congress, I will not contest anyseat against any Congress candidate in this election and willsupport Congress candidates."

There is no condition in this application giving any right to the Hima-•chal Pradesh Congress Committee to forfeit either the amount of applicationor the amount of security. In fact, these amounts are not even mentionedin this application. In my opinion, this undertaking did not entitle theHimachal Pradesh Congress Committee to forfeit any of the two amounts.

The petitioners, however, contend that in view of the pleadings of the•parties, the fact of the alleged forfeiture of these two amounts by the Hima-chal Pradesh Congress Committee stands proved. The allegation in para-graph 5-A of the petition which is relevant to these two amounts may berepeated. This is what the petitioners have stated :—

"The respondent paid Rs. 250/- while applying for Congress ticket.He Has not shown this expense in the Return, fhe respondenthas forfeited also a sum of Rs. 500/- to the Himachal PradeshCongress Committee after the date of the publication of anotice of election and this amount has also been suppressed inthe Return of election expenses."

It will thus be seen that no allegation of forfeiture has been made inrespect of the amount of Rs. 250/- (in reality Rs. 500/-) and there is abare allegation that the amount of Rs. 500/- (in reality Rs. 750/-) hasbeen forfeited by the Himachal Pradesh Congress Committee after thedate of the publication of the notice of election. The date of actual for-feiture of this amount of Rs. 750/- is not mentioned, nor is it mentionedwhether the alleged forfeiture was before or after the date of the declara-tion .of the result. The defence of the respondent has, therefore, to belooked at in the light of these vague pleadings and the relevant defence

•; ontained in paragraph 5-A of the written-statenient is in these terms:—

"It is denied that the respondent committed the breach of Rule86 or Rule 90 of the Conduct of Elections Rules, 1961 andthat he committed any disregard of section 77 of the Repre-senta ion of People Act, 1951, He !id not incur any expendi-ture over and above that shown in his election expenses return. . . .The sum of Rs. 250/- paid by the respondent to the H.P.Congress for giving him Congress ticket for Kasumpti consti-tuency was not an expense furtherance of his election. In anycase it was incurred long before 13-1-1967. . . .The sum ofRs. 500/- as security for undertaking not to fight against aCongress candidate, in the event the ticket was refused was notan election expense, and the same was paid much before13-1-1967."

In my opinion and in view of the vagueness of the allegations in theion M th regard to the alleged forfeiture, the answer contained in the

E.L.R.] SADHU RAM V. fflRA SINGH PAL 37

respondent's written-statement cannot amount to a n admission of theallegations with regard to forfeiture. Even in the replication filed by thepetitioners to the written-statement, all that has been stated with regardof these two amounts is:—

"The sum of Rs. 250/- was covered under the election expenses.The sum of Rs. 500/- as security as mentioned in the ElectionPetition was forfeited after the date of withdrawal and thisexpenses clearly falls under the election expenses, which therespondent has deliberately omitted to mention in the Returnof Election expenses."

Even in the replication the allegations as to these two amounts are notsupported by any particulars as to the date of forfeiture, nor has any re-ference been made to any document in pursuance of or by which thisforfeiture is alleged to have been effetuated. The further contention ofthe petitioners is that the right to forfeit and the actual forfeiture is provedby the statement of Amar Nath Bajwara (P.W. 1) who states himself tobe permanent Secretary of the Himachal Pradesh Congress Committee. lathib b3half, this witness has stated:—*

"The last date of withdrawal of nomination papers for election tothe H.P. Legislative Assembly from 9-Arki constituency was23-1-1967, from the contest the security of Rs. 750/- desposit-ed by him was forfeittd to the H.P. Congress Committee. Aletter copy of which is Exhibit P.W. 1/3, was sent by register-ed post to the respondent on 13-2-1967 informing him aboutthe forfeiture of the security money and application fee deposit-ed by him."

When asked in cross-examination about the alleged despatch of Exhi-bit P.W. 1/3, which was alleged to have been sent by registered post, thiswitness stated:—

"I have not brought with me the postal receipt or the postalacknowledgment about the receipt of Exhibit P.W. 1/3 by therespondent. I have, however, noted on the margin of ExhibitP.W. 1/3 the post office receipt number and the date of des-patch of this letter to the respondent. I have not with inCourt any document showing that this letter Exhibit P.W. 1/3was actually sent to the respondent. Nor have I any ackno-wledegment of the respondent with regard to the receipt of thisletter by him."

It is, therefore, clear that the despatch of Exhibit P.W. 1/3 and thereceipt thereof by the respondent has not been proved. This witness hasfurther admitted in cross-examination that—

"The security money and the application fee deposited by the res-pondent was forfeited by a resolution passed by the PradeshElection Committee of the Congress, but in the absence ofrecord. I can not say when that resolueion was passed. Thereis no mention of any resolution of th e Pradesh Election Com-mittee in the letter Exhibit P.W. 1/3. I cannot answer the ques-tion, as it is a question of law, as to whether the radesh Elec-tion Committee is entitled to forfeit the sum of Rs. 1,250/-

3§ SADHU RAM V. HIRA SINGH PAL [VOL. XXXIK

deposited by the respondent. I cannot even approximately sayas to when the meeting of the Pradesh Election Committee washeld. I can neither give the month nor the day. Dr. Y. SParmar, Smt. Satyawati Dang, Shri Karam Singh, Shri VidyaDhar and Shri Hari Das were the members of the Pradesh

» Election Committee."

None of the members of this Pradesh Election Committee has beenproduced as a witness; the alleged resolution has not been produced and"the conditions laid down by the H.P.C.C." mentioned in Exhibit P.W. 1/3have not been proved. Hari Dass, the defeated candidate, is admitted bythis witness to have been a member oT ffie T?radesh Eelection Committeeand a party to the alleged resolution. Even he has not come forwardas a witness.

In this state of evidence, I hold that the right to forfeit; the allegedforfeiture and the allegation of the forfeiture having been made during theperiod contemplated by section 77 of the Act have not been proved by thepetitioners and issues Nos. 4 and 5 are ^nswered against the petitioners andin favour of the respondent.

I may also mention the further arguments which were addressed by Mr.H. S. Thakur, learned counsel for the respondent, in connection with (healleged forfeiture of the aforesaid two amounts. He contended (1) thatthe aforesaid two amounts had been deposited by the respondent with theHimachal Pradesh Congress Committee when he applied for the Congressticket from the Kasumpti constituency; that the respondent had not con-tested the election from the Kasumpti constituency but from the 9-Arkiconstituency and, therefore, the aforesaid two amounts could not be consi-dered to be election expenses incurred in connection with the election fromthe 9-Arki Constituency; (2) that the agreement, even if proved, giving aright to the Himachal Pradesh Congress Committee to forfeit the aforesaidtwo amounts on the breach of the undertaking given by the respondent wasvoid under section 23 of the Indian Contract Act as the consideration forthis agreement was opposed to public policy as it was in breach of everyvoter's right to contest an election; (3) that the aforesaid two amountswere liable to be refunded to the respondent under section 65 of the IndianContract Act and (4) that since the aforesaid two amounts were not usedfor the election of the respondent, they could not constitute election ex-penses within the meaning of section 77 of the Act. It is not necessaryfor me to deal with any of these contentions in view of my finding that theright of the Himachal Pradesh Congress Committee to forfeit the amountand its actual forfeiture have not been proved.

The most contested issue in this case has been issue No. 7 which hasbeen framed on the petitioners' allegation that jeep HIM-No. 4235 washired by the respondent and he paid Ks. 1,428-44 as its hire charges toHimachal Pradesh Government Transport Department or the said amountwas paid on his behalf to the said department.

The pleadings of the parties in so far as issue No. 7 is concerned maybe shortly stated again. In the petition, the petitioners merely state thatthe respondent has not included an amount of Rs. 1,428-44 which repre-sented the expenses of conveyance which were paid by the respondent tothe Himachal Pradesh Government Transport Department for use of jeep>

E.L.R.] SADHU RAM V. HIRA SINGH PAL 39

HIM-No. 4235 from February 1, 1967 to February 19, 1967. There is noallegation that this amount was incurred by the respondent through hiselection agent or any other person and the allegation can mean only onething that this expense was incurred by the respondent himself. In hiswritten statement, the respondent ihas denied that he had hired this jeepas alleged. He has further stated that this jeep was hired by Muni Lai(who has appeared as R.W. 1) on behalf of the 'Lok Raj Samiti' and thatit was Muni Lai who had paid, the amount of Rs. 1428-44. The respon-dent has further alleged that the defeated candidate, Hari Dass, who wasthen the Transport Minister, appears to have fabricated false evidence inthat behalf. In the replication, the petitioners reassert the hiring of thisjeep by the respondent himself and they also reassert that the aforesaid pay-ment was made by the respondent. It is for the first time in the replicationthat the petitioners have denied the very existence of the Lok Raj Samiti andit is further alleged that "the words 'Lok Raj Samiti' must have been gotwritten by the respondent or his supporter Shri Muni Lai just to fabricatethe evidence which was false to their knowledge. It is reiterated that theexpenses of Rs. 1,428-44 on account of hire charges of the jeep No. HIM-4235 were incurred by the respondent for his election campaign and thathe exceeded the limit,of Rs. 2,000/- as permitted under the Act." Evenin the replication the petitioners do not say that this jeep was hired by MuniLai with the consent of the respondent. The only allegation with regardto Muni Lai is that he was a supporter of the respondent. Therefore, thecase which the respondent was called upon to meet in connection with theuse of jeep HIM-No. 4235 was that he himself had incurred the aforesaidexpenses of Rs. 1,428-44. No* case has been pleaded by the petitionersthat the aforesaid expenses had been authorised by the respondent. Norhave the petitioners alleged that the aforesaid expenses was incurred by"any other person with the consent of the respondent" or by the respon-dent's agent.

Sub-section (1) of section 77 of the Act required the keeping of aseparate and correct account of all expenditure in connection with the elec-tion incurred or authorized by the candidate or by his election agent. Sub-section (3) of section 77 provides that such expenses should not exceed theprescribed amount.

Section 100 of the Act contains the ground for declaring an election tobe void. Clause (b) of sub-section (1) provides one of such ground—theground being;—

"that any corrupt practice has been commited by a returned candi-date or his election agent or by any other person with the con-sent of a returned candidate or his election agent."

It will, therefore, be seen that while section 77 of the Act imposes a liabilityfor maintenance of the account upon the candidate or his election agent,clause (b) of sub-section (1) of section 100 makes the returned candidateresponsible for any corrupt practice which has been committed by him orby his election agent or by any other person with his consent or the con-sent of his election agent.

Section 123 of the Act mentions certain acts which are to be deemedto be corrupt practices for the purpose of the Act In addition to an elec-tion agent or any other person acting with the consent of the returned candi-1 B.C.—4

4 o SADHU RAM V. HIRA SINGH PAL [VOL. XXXll

date, this section uses the word 'agent' which has been defined by the Ex-planation to this section as including "an election agent, a polling agent andany person who is held to have acted as an agent in connection with theelection with the consent of the candidate" but this inclusive definition is lorthe purposes of this section alone. In spite of the words "or his electionagent or by any other person with the consent of a returned candidate orhis election agent" used in section 100(1)(b) of the Act, different expres-sions have been used in section 123 with reference to different corrupt prac-tices. Sub-section (1 ) (A) which relates to bribery uses the words "or hisagent or by any other person with the consent of a candidate or his electionagent." Sub-section ( l ) ( B ) ( a ) which relates to gratification refers onlyto a "candidate". Sub-section (2) which refers to undue influence or inter-ference mentions "the candidate or his agent, or any other person with theconsent of the candidate or his election agent." Sub-section (3) whichrelates to appeals on the ground of religion etcetra mentions "a candidate ofhis agent." Sub-section (3) (A) which relates to promotion of feelings ofenmity or hatred mentions "a candidate or his agent or au\other person with the consent . of a candidate or his electionagent." Sub-section (4) relating to publication of false statements men-tions "a candidate or his agent or by any other person with the consent of acandidate or his election agent." Sub-section (5) which relates to thehiring or procuring of any vehicle etcetra mentions "a candidate or his agentor by any other person with the consent of a candidate or his cLction agent."Sub-section (7) which relates to obtaining or procuring of assistance fromspecified classes of Government servants mentions "a candidate or his agentor by any other person with the consent of a candidate or his election a sent."But sub-section (6) which refers to unauthorized expenditure merely statesthe corrupt practice to be "the incurring or authorizing of expenditure incontravention of section 77." Reading sub-section (6) of section 123 onlywith reference to section. 77, the conclusion can only be that this corruptpractice can be committed only by the candidate or his election agent and,so read, cannot include "any other person with the consent of the candidateor his election agent" as mentioned in sub-clause (b) of sub-section (1) ofsection 100 unless such consent is equivalent to an authorisation by thecandidate or his election agent.

The corrupt practice alleged in this case is a contravention of section 77of the Act which has been committed by payment of the hire amount ofRs. 1,428-44 in respect of jeep Him No. 4235. The corrupt partice isfor incurring or authorising of expenditure in contravention of section 77of the Act. The word "incurring" necessarily postulates a pecuniaryliability on the candidate himself even though the expense may have beenauthorized by the candidate or his election agent.

The Supreme Court had occasion to deal with section 123 (7) of theAct prior to its amendment. As it then stood, sub-section (7) of section123 related not only to the incurring of authorizing of an expenditure incontravention of section 77 but also to the employment of a prescribednumber of persons. In the case before their Lordships which is reportedin A.I.R. 1954. Supreme Court 749 (Rananjaya Singh v. Baijnath Singhand others), the allegation was that the father of the candidate had assistedhis son by placing at the disposal of the son in the matter of his election theemployees of the father. If such persons were to be included, the numberof employed persons would have exceeded the prescribed limit. In repel-

E.L.R.] SADHU RAM V. HIRA SINGH PAL 4 1

ling the contention that the candidate had been guilty of a corrupt practice,the Supreme Court observed:—

"there can be no doubt that in the eye of the law these extra per-sons were in the employment of the father of the appellantand paid by the father and they were neither employed norpaid by the appellant. The case, therefore, does not fall withinsection 123(7) at all and if that be so, it cannot come withinsection 124(4). It obviously was a case where a father assistedthe son in the matter of the election. These persons were theemployees of the father and paid by him for working in theestate. At the request of the father they assisted the son inconnection with the election which strictly speaking they werenot obliged to do. Was the position in law at all different fromthe position that the father had given those employees a holidayon full pay and they voluntarily rendered assistance to the ap-pellant in connection with his election? We think not. It isclear to us that 'qua' the appellant these persons were neitheremployed nor paid by him. So far as the appellant was con-cerned they were more volunteers and the learned Advocatefor the respondents admits that employment of volunteers cloesnot bring the candidate within the mischief ol he definition of

corrupt practice as given in section 123(7).

The learned Advocate, however, contended that such a constructionwould b? against the spirit of the election ia1;/ in that candi-dates who nave rich friends or relations would have an unfairadvantage over a poor rival The spirit of the law may well beelusive and unsafe guide and the supposed spirit can certainlynot be given effect to in opposition to the plain language ofthe sections of the Act and the rules made thereunder, If ailthat can be said of these statutory provision is that construedaccording to the ordinary, grammatical and natural meaningof their language they work injustice by placing the poorercandidates at a disadvantage the appeal must be to Parliamentand not to this Court.

On a consideration of the relevant provisions of the Act and therules and the arguments advanced before us we are of opinionthat the appellant cannot in the circumstance of this case beheld to be guilty of any corrupt practice under section 123(7)as alleged against him. It follows from this that not havingincurred any expenditure over and above what was shown byhim in his return of election expenses he cannot be said to haveconcealed such expenditure and, therefore, he cannot be heldto have been guilty of any minor corrupt practice under section124(4) of the Act."

The word "incur" was construed by a Division Bench of the RajasthanHigh Court in the case reported in Sheopatsingh v. Narsihehandra A.I.R.1958 Rajasthan 324 where the allegation was that a vehicle had been lentgratuitously to a candidate and it was claimed that the reasonable hire otthis vehicle should have been included in the return of exnenses, Reiving

42 SADHU RAM V. HIRA SINGH PAL [VOL. XXXL'

upon the above observations of the Supreme Court, the learned Judge i-says:— •.-•-. i<

"This brings us to the next point which is that assuming that avehicle is lent gratuitously to a candidate is reasonable hire forthe vehicle to be shown as election expenditure? In otherwords, is the reasonable hire of a vehicle lent gratuitously anexpenditure which the candidate should be presumed to havdincurred or authorized? To our mind, it is not. One incurs-expenditure when one actually spends money. One authorises,expenditure when one incurs a pecuniary liability.

In borrowing a vehicle, which the lender lends gratuitously, nopecuniary liability is incurred."

A Divisional Bench of the Assam High Court has dealt with a similarquestion in the case reported in A.I.R. 1959 Assam 139 (Biresh Misra v.Ram Nath Sarma and others) where it has been stated:

"One cannot be said to incur an expense unless he actually spendsthe money. The expenditure also cannot be said to have beeaauthorised unless any pecuniary liability is incurred by a person,Any vehicle therefore lent gratuitously to a candidate by hisfriends does not involve incurring of any pecuniary liability bythe candidate. In cases, therefore, where the vehicles are lentby friends gratuitously, it cannot be said that any expenditurewas incurred or authorised by the candidate It wasnot necessary for the respondent to show in his account thereasonable rent of the vehicles lent to him by his friends with-out charging from him."

The Madras High Court in its judgment reported in M. A. MuthiahChettiar v. 5a. Ganesan, A.I.R. I960 Madras 85 has also accepted themeaning given to the word "incur" in A.I.R. 1958 Rajasthan 324.

On the pleadings of the parties and the law as laid down in the aboveauthorities, it is necessary for the petitioners to prove that the aforesaidamount of Rs. 1,428-44 in respect of the hire of jeep HIM-No. 4235 wasactually incurred by the respondent himself or, in the absence of an electionagent as in this case, by any other person under an authorization of therespondent. Issue No. 7 and the evidence in this case have really proceededbeyond the pleadings in so far as the petitioners have made an attempt toshow that even if the hiring of the aforesaid jeep was by Muni Lai (R.W.1 convener of the Lok Raj Samiti, such hiring must be deeemd to be withthe consent of the respondent. The petitioners cannot enlarge the scope oftheir pleadings by evidence and, therefore, the only question for determina-tion in so far as the amount of Rs. 1,428-44 is concerned are whether therespondent himself had incurred this expense or whether Muni Lai had beenauthorized by the respondent to incur this expenditure. The petitionershave made an attempt to show that the various documents rn respect of thisjeep were camouflaged in so far as they showed the name of the said MuniLai (R.W. 1) as the hirer of this jeep.

The evidence discloses that jeep HIM-No. 4235 belonged to HimachalPradesh Government Transport who hired out jeeps to various candidates

E.L.R.] SADHU RAM V. HIRA SINGH PAL 43

.and political parties during the last elections. The first document in thisconnection is a letter dated January 28, 1967 (Exhibit R.W. 1/3) whichwas written by Muni Lai (R.W. 1) who described himself as the convenerof the Lok Raj Samiti, Himachal Pradesh and is addressed to the RegionalManager, Himachal Transport requesting the allotment of one jeep "for theSamiti for the elections on February 1, 1967 " This documentwhich was challenged by the petitioners as a document get up subsequentlywas produced by Zarfu Ram (P.W. 5) who was summoned by the petitio-ners themselves with the records of the Himachal Government Transportwhere this witness was a booking clerk. He produced the entire recordsrelating to the hiring of jeep Him-No. 4235. This letter, therefore, camefrom proper custody. When it was produced by this witness it was marked"A" by me for purposes of identification upon the objection of the learnedcounsel for the petitioners that he had not summoned this letter. Uponthis objection, this witness stated that he had been asked by the petitioners'counsel to bring all the records. No suggestion was made at the instance ofthe petitioners to this witness that this document did not form part of the©levant file or that it was a document which had been got up subsequently,I, therefore, hold that the genuineness of the aforesaid letter, which wassubsequently exhibited as R.W. 1/3 during the examination of Muni Lai(R.W. 1), cannot be doubted.

The next document is what may be called the "transport ticket" (Exhi-bit P.W. 3/1) issued by the Himachal Pradesh Transport Department con-taining the amount of hire of Rs. 1,428-40; the number of this jeep; thedates on which this jeep was used and an endorsement "full election dutywith Shri H. S. Pall". Reliance is placed by the petitioners upon the afore-quoted endorsement on this ticket to say that this jeep was hired by therespondent. This document was proved by Prem Das Abrol (P.W. 3),Regional Transport Manager, who states:

"A sum of Rs. 1,428-40 was received by my office for the hire ofthis jeep on the dates mentioned in the duplicate ticket ExhibitP.W. 3/1. The ticket is signed by my clerk Zarfu Ram and isin respect of election duty with Shri H. S. Pal. The originalof this ticket was handed over to the hirers."

Zarfu Ram (P.W. 5) has also deposed about this ticket and he says:—

"The particulars of this ticket are in my handwriting and I issuedthis ticket. The words 'election duty with Shri H. S. Pal' havealso been written by me on the face of this ticket. From thecounter foils of the tickets which I have brought, I can say thatsome counterfoils bear the names of persons to whom ticketswere issued. Name of the purchaser of a ticket is mentionedon the ticket only when the ticket is purchased on credit. Al-though the name of Shri H. S. Pal is mentioned on ticket Ex-hibit P.W. 3/1, the bills for the amount of charges was sent tothe Lok Raj Samiti."

In cross-examination this witness has admitted that the hire for this jeep•was received by him and that the hire charges were paid by Muni Lai(R.W. 1). In re-examination by the petitioners, this witness has furtherfidmitted that the bill for this vehicle was prepared in the name of the LokRaj Samiti in pursuance of the aforesaid letter dated January 28 1967(Exhibit R.W/1/3).

4 4 SADHU RAM V. HIRA SINGH PAL [VOL. XXXII

It is obvious that the respondent is not a party to the endorsement onthis ticket and he has categorically denied having ever hired this jeep forpurposes of his election. As I have already stated, the petitioners had toprove that it was the respondent himself who incurred the hire expensespertaining to this jeep. The answer of the petitioners is that they haveproved this fact. They argue that if the Lok Raj Samiti had actually paidthe hire amount, they should have produced their account books which areadmittedly maintained by them and, in the absence of the account books,a presumption ishould be drawn against the respondent that it was not theLok Raj Samiti or Muni Lai (R.W. 1) but the respondent himself who hadincurred the expenses for hiring this jeep. Rerialnce is placed upon illus-tration (g) to section 114 of the Indian Evidence Act. This illustrationsays:

"That evidence which could be and is not produced would, if pro-duced, be unfavourable to the person who withholds it."

I do not think the said illustration (g) would bear that interpretation.The burden for proving a corrupt practice lies very heavily upon the personmaking the allegation. It has been held in A.l.R. 1965 Supreme Court183 (Jagdcv Singh Sidhanti v. Pratap Singh Daulta and others): —

"In the trial of an election petition, the burden of proving that theelection of a successful candidate is liable to be set aside onthe plea that he was responsible directly or through his agentsfor corrupt practices at the election, lies heavily upon theapplicant and unless it is established in both its branches, i.e.,the commission of acts which the law iegards as corrupt, andthe responsibility of the successful candidate directly or throughhis agents or with his consent for its practice not by merepreponderance of probability, but by cogent and reliableevidence beyond any reasonable doubt, the petition must fail."

The test which, therefore, has been laid down by the Supreme Court is thesame as applicable to the trial of criminal cases. There is no questionof a shifting burden. The burden remains throughout upon the petitionerswho make the allegations. The mere omission of the respondent to summonthe account books of the Lok Raj Samiti cannot, therefore, lead to apresumption against him as is contemplated by illustration (g) to section114 of the Indian Evidence Act. It is true that when the respondentsummoned Muni Lai (R.W. 1), convener of the Lok Raj Samiti, the peti-tioners had served a notice upon him to produce the account books ofthis Samiti. The account books were not brought by Muni Lai (R.W. 1).He admitted that this Samiti maintained accounts but he, states that theaccount books were with the treasurer, Lai Chand Stokes. It is not as ifthe petitioners were unaware of the existence or even the alleged existenceof the Lok Rai Samiti. They were made aware of this fact by the written—statement of the respondent. In spite of this awareness, the petitionersdid not summon any witness of this Samiti with its account books at thetime when the petitioners were giving their own evidence. Even after thestatement of Muni Lai (R.W.I) that the account books were with thetreasurer, Lai Chand Stokes, the petitioners did not make any applicationfor summoning Lai Chand Stokes. It is, therefore, not possible to drawany presumption by the Lok Raj Samiti of its accounts because it cannotbe said that it was the respondent who withheld the accounts.

E.L.R.] SADHU RAM V. H1RA SiNGH PAL 45

My conclusion, in so far as the transport ticket (Exhibit P.W.3/1) isconcerned, is tnat in the absence of any evidence that the respondent wasa party or privy to the endorsement "full election duty with Shri H. C.Pail" on this document and in the absence of any proof that the respon-dent had withheld the account books of the Lok Raj Samiti, the petitionshave failed to prove that the respondent had incurred the amount men-tioned in this document.

The next document on which reliance has been placed is that •"checkslip—Way-bill" (Ex. PW. 3/2) dated February 1, 1967 issued by theHimachal Government Transport in respect of this jeep HIM-7(in. 4235.This document indicates the journeys which were undertaken by th;:; jeepbetween February 1 to 9, 1967 and February 11 to 19, 1967 the detailsof the journeys shown in this document have been entered by the driverUttam Chand (PW4), Various places are mentioned in this document asbavin." been visited. All of them except Solan, Kandaghat, Simla, Subathu,Jawaf and Namhol are in the 9-Arki constituency. The evidence_ is thateven the places mentioned above are contiguous to the 9-Arki constituency.The petitioners have further emphasised the fact, as appearing from thisdocument, that most of the journeys indicated are from and to Domeharwhich is the respondent's village. The petitioners argue that these factsclearly indicate that it was the respondent and nobody else who was usingthis jeep HIM-No. 4235 for purpose of his election. Reliance is alsoplaced by the petitioners upon an endorsement (Exhibit PW. 3/2-A) onthis document stating in the hand of Muni Lai (R.W. 1)—"Certified thatthe above journeys were undertaken by the Samiti candidate for electionpurposes." In the original has a longer leg than the letter 'e' in the otherwords used and this 'e' ends in what appears to be a big dot. To my mind,the possibility cannot be excluded that this letter 'e' in the word 'candidate'was not the last word and the last word was 's'. If I am right, the wordin this endorsement was not 'candidate' but 'candidates'. If the wordwas 'candidates', the case of the petitioners is very much weakened and•strength is given to the case of the respondent that this jeep was not used"by him exclusively for his election but was used by the Lok Raj Samitifor the election of the various candidates who were sponsored or supportedfry it.

I may mention that there are two other endorsements on ExhibitPW. 3/2 in pencil. One endorsement reads: "Lok Rai Samiti. Sh. MuniLai, Election Duty." The other endorsement reads: "Du'v with Sh IT SPal" (Exhibit PW. 3/3). • • -

The procedure for hiring a vehicle from the Himachal Pradesh Govern-ment Transport Department is deposed to by Prem Das Abrol (PW. 3) inthe following words:—

"The person wanting to hire a vehicle has to place a requisition withthe Regional Manager. On receipt of the requisition thenecessary vehicle is made available to the person wanting thevehicle through the booking clerk. Then a driver is assigned"to take the vehicle to the hirer. As soon as a vehicle is hiredout a check-slip way-bill is issued and handed over to theDRIVER as his authority for taking out the vehicle. A losbook pertaining to the vehicle is kept in the vehicle. Thedriver is expected to make entries with regard to the journey->n (he way bill issued to him and on the basis of those entries

4 6 SADHU RAM V. HIRA SINGH PAL tVOL. XXXH

the booking clerk makes corresponding entries in t'le log book.Uttam Chand was the driver attached to HIM 4235 whileZarfu was the booking clerk concerned."

The driver of this jeep, Uttam Chand (PW.4) has stated that this jeepwas doing election duty with Muni Lai (RW.l) and H. S. Pal (respondent).He has further stated:

"Generally Muni Lai and his workers used to travel with me inthis jeep. Sometime Shri H. S. Pal used to be with them. Ido not know why Muni Lai used to go about in this vehicle.Journeys mentioned in Exhibit P.W. 3/2 were performedwithin Arki Tehsil. I do not know why this vehicle had beentaken on hire. Shri Muni Lai must be knowing about it. 1was to drive the vehicle according to the instructions of MuniLai. I cannot say why Muni Lai had taken this vehicle."

In cross-examination he states:—

"As far as I know the vehicle was taken on hire by Muni Lai asit was being run under his instructions and only those personswhom Muni Lai wanted to get into it were allowed to travel.So far as the respondent is concerned I had just given him alift on one or two occasions if he met us on the way. Mun";Lai paid the hire in respect of this vehicleAccording to the practice the signatures of the person underwhose instructions journeys were performed had to be taken.As journeys in this case were performed under instructionsfrom Muni Lai, I obtained his endorsement Exhibit PW.3/2-A."

Zarfu Ram (P.W.5) has admitted that "although the name of H. SPal is mentioned on ticket Exhibit PW. 3/1, the bill for the amount Mcharges was sent to Lok Raj Samiti. The respondent did not lell me tosend the bill to the Lok Raj Samiti."

If this jeep was really taken by the respondent himself and he was toincur or did actually incur the expenses of this jeep, the aforesaid endorse-ments by Muni Lai (Ex. PW. 3/2-A) and the writing in pencil "Lok RajSamiti. Sh. Muni Lai, Election Duty" on the check-slip way-bill (ExhibitPW. 3/2) are not understandable. On the other hand, if tin's jeep wastaken on hire by Muni Lai as the convener or representative of the LokRaj Samiti, these endorsements and also the name of the respondent onthe transport ticket (Exhib'l PW. 3/1) and Exhibit PW. 3/3 (which isthe check pass statement) are understandable because they show no morethan this that this jeep was used in connection with the election of therespondent. This document does not prove either that the hire of thisjeep was incurred by the respondent or that its hiring resulting in the pecu-niary liability on the respondent was effected by Muni Lai (RW.l) underany authorization by the respondent. At best, it shows that this jeep wasused in the election of the respondent also.

As to the oral evidence, all that the petitioners have been able to proveis that the respondent used this ieep. Ram Kishan (PW 61 has statedthat he saw the respondent going about in the constituency in a ieep onvarious dates including February 2 and 6, 1967 and thereafter. He also

E.L.R.] SADHU RAM V. HIRA SINGH PAL 47

says that this particular jeep was driven by Uttam Chand (PW.4). Thitwitness does not remember the registration number of the jeep but jeepHIM-4235 is identified by naming Uttam Chand (PW.4) as its driver.Jagat Ram (PW.7) speaks of the respondent going about in a jeep in usvillage on February 2, 1967 and thereafter every day. He says that theregistration number of this jeep was 4235 and its driver was Uttam Ramby which probably he means Uttam Chand (PW.4). Karam Chand(PW.8) says that he saw the respondent in February 1967 in jeep bearingregistration number HIM-4235 which has driven by Uttam by which hemeans Uttam Chand (PW.4). He is a grand-uncle of the respondent zrAowed money to him. He says that the respondent's son had told him thathis father (meaning the respondent) had spent for the jeep HIM-4235. Hefurther states: "I had owed some money to the respondent and in ihiscoanection he had demanded repayment of the amount from me on 19thFebruary, 1967. I did not go to any office to ascertain, who had incurredthe expenditure for this jeep". Apart from everything else, the testimonyof this witness cannot be relied upon by reason of his admitted indebtedness>o the respondent.

My conclusion with respect to the check-slip way-bill (Exhibit P.W. 3/2,)is that iU does not prove that the amount of this bill was incurred by or waspaid by or was the liability of the respondent.

The respondent has produced Muni Lai (RW.l) to prove the formationand existence of the Lok Raj Samiti. This witness has produced what hecalls the minimum programme of the Lok Raj Samiti (Exhibit RW. 1/1)and its rules (Exhibit RW. 1/2). It is true that, at the time of the elec-tions, this Samiti had not been recognised under the relevant provisionsof this Act. But the evidence is that this Samiti was organised in 1967immediately prior to the elections by five persons who formed its firstExecutive Committee and who were Thakur Sen Negi, Jai Behari LaiKhachi, Lai Chand Stokes, Muni Lai (RW.l) and the respondent. Noneof its records or resolutions has been produced and, such non-productionhas given rise to an argument by the petitioners that this Samiti was merelya camouflage and that it was the respondent who used the name of thisSamiti for the purpose of hiring this jeep so as to avoid showing theexpenses incurred on this jeep from his own return of expenses. Eventhough these records have not been produced, it has been freely admittedby Muni Lai (RW.l) that, prior to the elections, there were hardly anyrecords except a minute book which contained a resolution of the executiveCommittee authorising him to look after the elections and account, bookswhich contained donations received by this newly formed party and theirdisbursement and that the funds at J;he disposal of this Samiti were notvery large. It is not unusual for political organisations to be formed inthis manner prior to elections; nor is it of any significance that, being aparty which had not been recognized under the provisions of the Act, if hadnot been allotted any symbol of its own. Upon the evidence of Muni Lai(RW.l) it is not possible for me to accept the argument and to hold thatthis Samiti was either non-existent or was a camouflage created by the les-pondent for his personal ends.

The most that has been proved by the petitioners by the oral and'docu-mentary evidence is that this jeep HIM-No. 4235 was used by the respon-dent during his election. Such use bv itself and without anvthing morecannot constitute a breach of section 77 of the Act by incurring or autho-rizing expenditure in excess of the limit placed by sub section (3) of (his

4 8 SADHU RAM V. HIRA SINGH PAL [VOL. XXXII

section. Further, a mere connection between the respondent and the LokRaj Samiti cannot lead to the only conclusion that the expenses withregard to this jeep must have been incurred or authorised by the respon-

. dent. In view of the admission by Zarl'u Rani (FW.5) that the bill(Exhibit PW3/1) lor the amount of charges in respect ot jeep HIM-4235was sent to the Lok Raj Samiti, it is not possible to say that the expensesin relation to this jeep were incurred or authorised by the respondent withinthe meaning of section 123(6) of the Act. I, therefore, hold that the peti-tioners have failed to discharge the burden of proving issue No. 7.

Issue No. 8 runs thus:—

"Whether the respondent himself or through his agents and otherpersons with his consent published statements of facts, v-.hichwere false and which he did not believe to be true or which heregarded as false in relation to the personal character and con-duct of the opposing" candidate Shri Hari Dass as detailed inclauses (i), (ii), (iii) and (iv) of para 5—B of the petition?

The learned counsel for the petitioners has frankly conceded at thetime of argument that no evidence has been led by the petitioners on thisissue. 1, therefore, hold that issue No. 8 has not been proved by the peti-tioners.

Issue No. 9 runs as under:—•

''Whether the respondent by himself or through his agents or by anyother person with his consent, has committed the corrupt prac-tice of misleading the voters and creating hatred amongst thevoters against the opposing candidate Shri Hari Dass andspreading false propaganda as mentioned in clauses (i), (ii),(iii), and (iv) of para 5—B of the petition?

Paragraph 5—B of the petition is as follows: —

"False statements and propaganda.

The respondent has published, himself and through his agents ;<ndother persons with his consent, or those, who were his elec-tion agents or supporters, statements of facts, which were falseand which he did not believe to be true or regarded as false inrelation to the personal character and conduct of Shri HariDass, who was the opposing candidate. He also publishedstatements false to his knowledge through himself, through hisagent, supporters and othfer persons with his consent with aview to prejudice the prospects of election of Shri rfari Dass.The statement palpably false were calculated to ween away thevoters in large number from exercising their votes in favourof Shri Hari Dass. The following are the particulars of thefalse statements:—

(i) That on 22nd January, 1967, the respondent and his sup-porters misled the voters by making false statement thatthe respondent had been assured from the Centre (Delhi)

that in case he came out to be successful, he must be ap-pointed Minister in the Himachal Cabinet and that thistime the other candidate Shri Hari Dass will not be

E.L.R.] SADHU RAM V. HIRA SINGH PAL 49

taken in the Cabinet even if he succeeds. There should bea Minister from this Constituency for the welfare of thatilaqa and that the respondent was the only choice aspromised to him by the Central Government. Delhi.

(ii) The respondent deliberately and wilfully misled thevoters, who were generally illiterate that in this Electionthe symbol for the Congress was that of Bicycle and theyshould vote for this symbol only. He and his supportersspread this false propaganda in the Congress circle whowere bound to vote for the other candidate, Shri HariDass. All this was false to the knowledge of ihe respon-dent and his supporters who were doing this with hisconsent. Since the respondent had fought election onCongress ticket from Kasumpti Constituency in the lastGeneral Elections and the symbol allotted to him at thaitime was that of bicycle, he gave the impression to theCongress voters that, in fact he was the Congress candidate and the symbol allotted to him this time was alsothat of Bicycle.

(iii) That the respondent and his supporters with his consent,on 17th of February, 1967, in the constituency madefurther false propaganda against the other contestingcandidate Shri Hari Dass, that the latter was keeping aMohammadan woman named Mst. Barkat and was not areal Hindu and he was going to open cow slaughter houseat Arki. The respondent and his supporters with his con-nivance, induced the voters and supporters of Shri HariDass not to vote for him and this false propaganda pre-judiced the other candidates to a great extent and theElection was not fair.

(iv) That the respondent and his supporters with his consentand connivance made false statements continuously for aweek from 10th February, 1967 to 17th February, 1967that the voters this time should not vote for Congress,which is a corrupt body and has given Congress tickets tocorrupt people and that they should get money from theCongress candidate and his supporters but not vote forthe Congress candidate. They further made wrong propa-ganda that the Himachal Pradesh Congress has got fabu-lous amount from the Congress High Command for thedistribution of the same among the voters' through thesupporters of the Congress candidate. This statementwas made by the said persons to create hatred amongstthe voters against the Congress candidate SM Hari Dassand this prejudiced the Congress candidate LA a large ex-tent. They further made false statements that even thesupporters of Shri Hari Dass in general and in particularShri Jagat Ram, Shri Daya Ram Gandhi, Shri RamKrishan Vaid, Shri Karam Chand (one of the petitioners)and Shri Dhani Ram have been bribed by the Congressparty and its candidate and they were propasatinsi thecause of the Congress on that account only. This state-ment also affected the fair election to a great extent."

< 0 SADHU RAM V. HIRA SINGH PAL [VOL. XXXII

These allegations have been denied by the respondent in his written-state-ment..

There is no evidence to support the allegations made in paragraph 5-B(i) or paragraph 5-B(ii) or paragraph 5B(iv).

In so far as the allegations in paragraph 5-B(iii) are concerned, the evi-dence is scanty and meagre, Ram Kishan (PW. 6) says in his examination-in-chief that the respondent "spoke against Hari Dass and said that theCongress had no religion or principles. That is all he said." In cross-examination, he says that the respondent "did not really abuse but he saidmany things against him (Hari Dass). He said that he was associatingwith Muslims and had kept a Muslim woman in his house." Jagat Ram(PW. 7) says in his examination-in-chief: "There was a big meeting onJanuary 28, 1967, in which the respondent spoke. In the election meetinghe said something regarding Hari Dass but I do not remember what iiesaid." Karam Chand, petitioner No. 2 says in his examination-in-chisf:"There was one meeting on 4th February, 1967, so far as I remember. Therespondent spoke in that meeting. He said that the Congress was spendingthe money which it had received from Delhi; that voters should take moneyfrom the Congress and vote for whomsoever they pleased; that Hari Dass,he Congress candidate had kept a Muslim woman in the house and that all

Congress workers had taken money. I was also working for the Congress.All these things were correct. Again said, my statement is correct. Thethings that respondent said about Hari Dass and about Congress workerstaking money were false." In cross-examination, he really shows his igno-rance about this meeting because he says: ' I do not know who else spokeio. the meeting un 4tL February, 1967, which was addressed by the res-pondent, because I had left after listening to his speech from the road.There were no chairs in that meeting."

On Ibis evidence it is not possible to hold that the statement imputedto the respondent which are subject-matter of paragraph 5-B(iii) were madeby the respondent.

This issue is based upon sub-section (4) of section 123 of the Act. Thecorrupt practice contemplated by this sub-section is;

"the publication by a candidate or his agent or by any other person.with the consent of a candidate or his election agent, of anystatement of fact which is false, and which lie either believesto be false or does not believe to be true, in relation to 1 hepersonal character or conduct of any candidate or in relationto the candidature, or withdrawal, of any candidate, behvz astatement reasonably calculated to prejudice the prospects orthat candidate's election."

What the petitioners had, therefore, to prove was (1) that \Y,a, impugnedstatement was made; (2) that it was false; (3) that the candid?.> believedthat statement to be false or did not believe it to be true; (4) the statementis in relation to the personal character or conduct of any candidate etcetraand (5) is a statement reasonably calculated to prejudice the prospects ofthat candidate's election. Even if it be assumed that the imputed state-ments were made bv the respondent, they have not been proved to be; (a'eineuts which were false. The only person who could have proved thefalsity of these statements was Hari Dass, the defeated candidate but hehas not appeared in the witness-box. Nor has it been proved that these

E.L.R.] SADHU RAM V. HIRA SINGH PAL 5 1

statements even if made, were statements reasonably calculated to prejudicethe prospects of the defeated candidate's election.

I have, therefore, no hesitation in holding that 'the petitioners have notsucceeded in proving any part of issue no. 9 which is, accordingly, decidedagainst the petitioner.

In the result, the petition fails and is dismissed with costs. The res-pondent's costs are assessed at Rs. 2,000/- to be paid by the petitioner.

In accordance with the provisions of section 99 of the Act, I herebyrecord that corrupt practices were alleged against the respondent as con-templated by section 123(4) and section 123(6) of the Act and I havefound that these corrupt practices were not committed by the respondent.

Petition Dismissed.. .

A. C. SRIKANTIAH V. B. DADDABORE GOWDA LVOL. XXXII

IN THE HIGH COURT OF MYSORE AT BANGALORE

A. C. SRIKANTIAH

V.

B. DADDABORE GOWDA AND ORS

(GOVINDA BHAT, J)

October 20, 1967.

Ballot papers—Inspection scrutiny and recounting of—Circumstancewhich court will order—Particulars to be pleaded.

An order for inspection, scrutiny and recount of baiiot papers cannotbe granted as a matter of course. In order to justify an order for inspec-tion, scrutiny and recount two conditions have to be satisiicd, viz., (a) theelection petition must contain an adequate statement of the material factson which the petitioner relies in support of his case; and (b) the courthas to be prinia facie satisfied that in order to decide the dispute and todo complete justice between the parties, inspection of ballot papers is neces-sary. The petitioner has to make out a prima fade case that an orderfor inspection is necessary in the interests of justice in cider to decide aiedispute. It is not sufficient if the election petition contains a v.igu: pleathat invalid votes have been improperly accepted or valid votes have been.improperly rejected or that the counting and examination of votes wasdone in a very irregular manner; the petitioner ought to plead the natureof the objections raised by him or his election agent and -he ballot papersto which those objections related.

In the present case the petitioner had not given in his election petitionthe serial numbers of the ballot papers which according to him wereimproperly received. The petitioner had not stated that he and his count-ing agents had no opportunity to examine the ballot papers. In all thecircumstances the prayer for inspection, scrutiny and recount must berejected.

ORDER

GOVINDA BHAT J.—At the General Elections to the-Mysore LegislativeAssembly held in February 1967, the Petitioner and Respondents 1 to 3contested the election for the seat from No. 101 Sreeransapatna AssemblyConstituency. The poll took place on 15th February, 1967 and countingwas held on 22nd February, 1967 at the Taluk Board Office, Sreeranga-patna. As a result of the said count, it was found that the candidates hadsecured the following number of valid votes:—

Respondent No. 1 . . 13.882Petitioner 13,795Respondent No. 2- 4,332Respondent No. 3 9.651The rejected votes were 4,303.

E.i.KA A. C. SR1KANTIAH V. B. DADDABORE GOWDA 53

Before the declaration of the result, the petitioner gave an applicationto the Returning Officer for recount of the votes and that application wasgranted; the recount was held on 23rd February, 1967 from 11-30 A.M.till 1-30 P.M. As a result of the recount, Respondent No. 1 secured13,883 valid votes and Petitioner 13,794 valid votes. There was nochange in the number of votes secured by the other two candidates andthe total number of rejected votes. Respondent No. 1 having secured a—majority of votes, he was declared elected. On April 3, 1967 the petitionerpreferred the above election petition challenging the election of Respon-dent No. 1; he has prayed for a declaration that the election of RespondentNo. 1 be declared as void and he (the petitioner) be declared duly elected.The main grounds pleaded by the petitioner in support of his petition are:

(1) That 38 voters specified in Schedule 'E' to the Election Petitionwere dead before the date of the poll and that votes were castby impersonation in the names of the said dead persons,

(2) That there is discrepancy of 52 votes between the total numberof ballot papers issued at all the polling stations and the numberof ballot papers counted,

(3) That though recount was ordered there was merely a physicalrecount of the ballot papers but no scrutiny was done c<ndopportunity to the Petitioner to raise objections to tv>f» validityof the ballot papers was not afforded, and

(4) That there was improper acceptance of about 1,500. invalidvotes in favour of Respondent No. 1 and improper rejection ofabout 1,000 valid ballot papers of the Petitioner by the Assis-tant Returning Officer and the counting staff.

Respondents 2 and 3 remained absent and did not contest. RespondentNo. 1 filed a written statement—denying that there was any improperacceptance or improper rejection of votes or irregularity in the conductof the count or recount. He denied that the Petitioner has secured a majo- 'pity of valid votes; Respondent No'. 1 did not dispute the fact that 38persons specified in Schedule 'E' to the Election Petition were dead enthe date of the poll, but he denied that there was any impersonation ofthe said persons and that he has secured the votes of the deadvoters by impersonation. Respondent No. 1 also did not dispute the factalleged by the petitioner that there was no scrutiny of the valid votes -of thecandidates at the recount; he contended that the petitioner having soughtrecount of rejected votes only, the Returning Officer had ordered recountof the rejected votes besides recount of valid votes of any booth if demandedand that the petitioner did not make any demand for recount of the validvotes of any booth and therefore, there was no need to recount the validvotes of all or any of the booths. Respondent No. 1 contended thai; theelection petition lacks particulars of the disputed ballot papers alleged tohave been improperly accepted or rejected and therefore the pleading isdefective. ' '

At the time of settlement of issues, the learned counsel for RespondentNo. 1 submitted that his client does not dispute the fact that 38 personsmentioned in Schedule 'E' to the election petition were dead on the dateof the poll and that no issue need be raised whether the said persons weredead. The Petitioner's learned counsel submitted that the petitioner doesnot allege any corrupt practice against Respondent No. 1 of having secured

5 4 A. C. SRIKANTIAH V. B. DADDABORE GOWDA LVOL. XXXII

votes by impersonation and that all he contends is that 38 void voteshave been received and the said votes will have to be rejected afterscrutiny if recount is allowed.

The following issues were settled:

(1) Does the Election Petition contain an adequate statement ofmaterial facts for scrutiny and recount of votes?

(2) Whether the Election Petitioner has made out a prima faciecase for inspection, scrutiny and recount of ballot papers?

(3) Whether the result of the election, in so far as it concernsRespondent No. 1, has been materially affected by improperreception, refusal or rejection of any vote or reception of anyvote which is void?

. *(4) Whether the result of the election of Respondent No. 1 hasbeen materially affected by any non-compliance with the.provisions of Rule 63(5) of the Conduct of Elections Rules,1961?

*[This issue is deleted as per order dated 27th September, 1967 onthe submission of the learned counsel for the petitioner thathe has urged the ground of non-compliance- with the provisionsof Rule 63(5) of the Conduct of Elections Rules, 1961—hereinafter called the 'Rules'—only as a ground for inspection,scrutiny and recount of ballot papers and not as a ground forsetting aside the election of Respondent No. 1. Consequenton the deletion of this issue, the next issues Nos. 5 and 6were renumbered as Issues Nos. 4 and 5.]

(4) Whether the Election Petitioner is entitled to a declaration thatthe election of Respondent No. 1 is void and for a furtherdeclaration that the election petitioner is duly elected?

(5) What reliefs?

The Petitioner examined seven witnesses besides himself and ExhibitsP—1 to P-131 were marked for him. Respondent No. 1 examined twowitnesses besides himself and Exhibit R-l was marked for him.

After evidence was closed and arguments had commenced, the ElectionPetitioner filed an application for amendment of his election petition seekingto add two paragraphs as paragraphs IV(12) and IV(13). That applica-tion was allowed by order made on 5th October, 1967. By the saidamendment the petitioner sought to give an explanation for not giving theserial numbers of the disputed ballot papers and that explanation was thatthe Returning officer Sri Basaviah had instructed the candidates, their agentsand the counting staff not to note down the serial numbers of the ballotpapers on the ground that the same would violate the secrecy of the ballot.The petitioner had sought a general recount of the valid ballot papers asalso of the rejected ballot papers from all the polling stations. By theamendment, he gave up his case for inspection, scrutiny and recount ofthe rejected ballot papers and restricted his prayer in respect of the validballot papers of Respondent No. 1 from nine polling stations only. Res-

E.L.K.J A. C. SRIKANT1AH V. B. DADDABORE GOWDA i>

poudent No. 1 filed an additional written statement denying that anyinstructions were given by the Returning Officer not to note down uicserial numbers of the bahot papers by trie candidates and their countingagentsy but he aid not press ior any additional issue being raised on thecontroversial lact. ine parties also aid not aauce any iixsn evidence andthe evidence already on record was treated by both sides as sufficient.

Inspection of the marked copies of the electoral roils relating to thevoters mentioned in Scneauie t, to tne election petition was allowed byme. Qn inspection it was found that ten ballot papers only were issuedagainst tne names of the dead voters; the serial numbers of the said ballotpapers are given in the joint memo filed by the learned counsel for theparties, la the event of recount of votes being allowed the said ten ballotpapers will have to be rejected as void votes. The petitioner has prayedfor inspection, scrutiny and recount of the valid ballot papers of RespondentNo. 1 received trom the nine polling stations specified m para IV (13) ofthe election petition for proving that there has been improper receptionof invalid votes m favour of Respondent No. 1 and that the petitioner hasreceived a majority of valid votes. Petitioner's case that ht- has receiveda majority of valid votes depends entirely on his making out a primafacie case for inspection, scrutiny and recount.

The law is that an order for inspection, scrutiny and recount of ballotpapers cannot be granted as a matter of course. In order to justify anorder for inspection, scrutiny and recount, two conditions have to be'satisfied, viz., (a) the election petition must contain an adequate statementof the material facts on which the petitioner relies in support of his case;and (b) the Court has to be prima facie satisfied that in order to decidethe dispute and to do complete justice between the parties, inspection ofthe ballot papers is necessary. An order for inspection of ballot paperscannot be granted to support vague pleas made in the election petitionnot supported by material facts or to fish out evidence to support suchpleas. The power to order inspection, scrutiny and recount of ballotsvests in the Court as ancillary to the proper determination of the result ofan election. The Court will not, on the mere suspicion and demand ofan election petitioner and without any extrinsic evidence tending to impeachthe regularity or integrity of the official count, order a recount of the ballots,but will require the petitioner to show in advance some evidence of fraudor misconduct of the counting officials reasonably calculated to overcomethe prima facie presumption of the regularity and correctness of officialaction. The petitioner therefore has to make out a prima facie case thatan order for inspection is necessary in the interests of justice in orderto decide the dispute.

In Ganji Veerappa v. H. Siddaverappa C1) following the decisions 'ofthe Supreme Court in Ram Sewak v. H. K. Kidwai(2) and, Jagjit Singh v.Kartar singh(s), I have stated that it is not sufficient if the election petitioncontains a vague plea that invalid votes have been improperly acceptedor valid) votes {have been improperly rejected or that the countingand examination of votes was done in a very irregular manner and thatthe petitioner ought to plead the nature of the objections raised by himor his election agent and the ballot papers to which those objections

,! i UP. No. 5 of 19R" decided OR 10-8-67.(21 A.I.R. 1964 SC 1249.

(3) A I R . I960 SC. 772.B.C.—5

5 ^ A. C. SRKANTIAH V. B. DADDABORE GOWDA. [VOL. XXXII1

The petitioner has not given in his election petition-the serial numbersof the ballot pipers which according to him were improperly received forRespondent No. 1. In paragraphs (iii), (iy) and (v) he has alleged the-nature of the objections and* the total number of the ballet papers thatwere objected. The Petitioner has not stated that he and his countingagents had no opportunity to examine the ballot papers. By the amendiment introduced into the election petition, he has alleged that the Return-ing Officer instructed the candidates and their counting agents not to notedown the serial numbers of the ballot papers and therefore he could notgive the serial numbers of the objectionable ballot papeis.

P.W. 1 H. C. Shivappa one of the Counting Supervisors and P.W. 3Basaviah the Returning Officer have both supported ihe case of the peti-tioner in this regard. This is what P.W. 3 has stated:

"Before counting started, I read out the relevant tules regardingthe—maintenance of secrecy of ballot. I had told them thatit is not permissible to note down the seriai numbers of theballot papers."

In Cross Examination the said witness has stated:

"The instructions that I gave regarding the secrecy of the ballotpapers apply not only to the counting stafi but also to thecounting agents."

P.W. 1 Shivappa the counting Supervisor has stated:

"On instructions to maintain secrecy of ballot, I did not allow thecounting agents to note the serial cumbers of the ballotpapers."

Respondent No. 1 has not suggested any motive for P.Ws. 1 and 3to swear falsely. P.W. 3 apparently misunderstood ihe provisions ofSection 128 of the Act and gave wrong instructions forbidding the notingdown of the serial numbers of the disputed ballot papers. The candidatesand their counting agents are not precluded by the provisions of section128 of the Act or any other provision from noting down the serial numbersand other particulars of the disputed ballot papers at :he time of thecounting. It is rather unfortunate that P.W. 3 mis-construed the provi-sions of Section 128 pi the Act and gavs wrong ipstmcacris. I believethe evidence of P.Ws. 1 and 3 when they say that instructions were givento the candidates and their counting agents not to note down the serialnumbers of the ballot papers. Consequently, the petitioner was preventedfrom noting down the serial numbers of the disputed ballot papers a^cnedto havj been improprely received; but there was no bar to the petitionerto plead precisely the number of disputed ballot papers and the natureof his objections with reference to each polling stations. The explanationgiven in the evidence of the petitioner that he believed that he was forbiddento note down even the polling station numbers cannot be-, believed.

The main .ground pleaded for recount is that despite an order forrecount, the Assistant Returning Officer failed to scrutinize the ballotpapers a§ he was required under law and therefore Rule 63(5) has beencontravanced. The pleadings on that ground and the ground of receptionof void votes are clear and do not lack adequate statement of materialfacts.

U.L.&.] A. C. SRIKANTIAH V. B. PADDABORE GOWDA 5 7

The next question is whether the petitioner has wa^e out a primafacie) case for inspection, scrutiny and recount of the ballot papers 01Respondent No. 1 in respect of the following rune polling stations:

PollingStation Name

No.

1. 5 Kalenahalli

2. 21 Kothathi.

3. 22 Kothathi

4. 23 BevinahaUi

5. 25 Cheeranahalli

•6. 26 Guthalu

7. 34 SunagahaUi

8. 35 Bhoothanahosuru

9. 36 Thaggahalli

I will now deal with the four grounds urged in support of the petitioner'*case.

His first ground is reception of void votes cast by impersonators. Asstated earlier, on inspection it is noticed that only ten ballot papers wereissued against the names of the dead voters mentioned in Schedule 'E'to the election petition. Out of the said ten ballot papers, four ballotpapers were issued in Polling Station No. 25, three in Polling station No.21, two in Polling Station No. 24 and one in Polling station No. 26. Sincethe margin of difference between the petitioner and Respondent No. 1is 89 votes, the reception of ten void votes, even assuming that all werecast in favour of Respondent No. 1, would not materially affect the resultof the election, and therefore the fact that ten void votes have been castand counted is not sufficient by itself to order inspection, scrutiny andrecount.

The second ground is that there is discrepancy between the totalnumber of ballot papers issued and the ballot papers found In the ballotboxes. Though in the election petition, the petitioner has stated that 52ballot papers have been unaccounted, both the learned counsel submittedafter examination of Exhibits P-39 to P-110 that only 7 ballot paperswere unaccounted. It is not the petitioner's case that any ballot paperscast in the ballot boxes were not counted. It is quite possible that whenabout 46,000 voters have cast their votes, 7 voters might have carriedaway the ballot papers without putting them into the ballot boxes intendedfor that purpose. I am unable to understand as to how the discrepancyof seven ballot papers is a ground for inspection, scrutiny and recount.

The third ground urged is that at the recount there was only physicalrecount done but not scrutiny as required by law. 'Though the petitioner

5 8 A. C. SR1KANTIAH V. B. DADDABORE GOWDA iVOL..

has pleaded in his election petition that at the recount • there was jjieie*yphysical recount but no scrutiny and no opportunity was given to thecounting agents of the petitioner to raise objections, Respondent No. 1has not denied the said averment. In paragraph 3 of the written statementthis K-> what Respondent No. 1 has stated:

"The petitioner as per Ex. A sought for the recount of rejectee,votes only on which the Returning Officer ordered to recounthe same in addition to recount of valid votes oi any boothif demanded. Therefore the order is restrictive. The pe-titioner did not demand the recount of any valid vote of anybooth. Consequently there was no necessity to recount tuevalid votes of all or any of the booths. The Returning Officerwas right in not recounting the valid votes of all or any ofthe booths in the absence of specific demand from the peti-tioner. The recount was done according to law."

From the above pleading of Respondent No. 1 it is clear that his caseis that there was no demand for re-count of the valid votes of any boothand therefore the Returning Officer was justified in not recounting uievalid votes of all or any of the booths. Respondent No. 1 in his evidencehas stated that he signed the written statement with the knowledge -thatthe statement made in Paragraph 3 of his written statement was not correct.The evidence of R.Ws. 1 to 3 was to the effect that at the recount t'tcvalid votes of the candidates were properly scrutinised and no objectionswere raised by the counting agents of the petitioner. Respondent No. 1is bound by his pleadings. He did not suggest to the Petitioner and Lt.tswitnesses that there was no recount at all or that the petitioner did satdemand a recount of the valid votes. Since Respondent No. 1 nas wutdisputed the averments made in the election petition that there was mereiyphysical recount but not scrutiny of the ballot papers, the Petitioner s ca;;ahas to be accepted.

The learned counsel for the Petitioner argued that the declaration ofthe result was made on the basis of the recount and when the recountwas not done in accordance with Rule 56, there is contravention of Rule63(5) read with Rule 56 and the Petitioner is entitled to the recount.

Though the petitioner has succeeded in establishing mat there has been'non-compliance of the provisions of Rule 63(5) read with rule 56, in order-to succeed, he has to further establish that non-compliance of the saidRules has materially affected the result of the election. The petitioner has.led no evidence to show that non-compliance of the provisions Rule63(5) read with Rule 56 has materially affected *'^ r°s;ilt of the electioq.The ground of non-compliance of the provisions of the said Rules nas b^cnurged only in support of the Petitioner's case for inspection, scrutiny andrecount. Mere non-compliance of the provisions of Rule 63(5) read withRule 56 does not entitle the making of an order for inspection, senrnuyand recount. As stated earlier, the Court has to be satisfied that in orderto decide the dispute—between the parties regarding the reception ofdisputed votes and to do complete justice between the parties, inspection ofballot papers is necessary. The dispute between the parties is whether anyinvalid ballot papers have been received for Respondent No 1 despite theobjections of the Petitioner. When the Petitioner arrowed for recount hisgrievance was only with regard to the rejection of his valid votes and noground was urged that any invalid votes were improper!v received for

>*ULJLl A. C. SROANTIAH V. B. DADDABORE GOWDA 59

f<*soondent No. 1. Exhibit P-128 is the Petitioner's application to theketurninfi Officer for recount. That application reads:

"To

17JW Returning Officer,

Srirangapatna Constituency,

PANDAVAPURA.

Application Under Section 63(2) of the Conduct of Elections Rules of1961.

I am a candidate for the Sreerangapatna Assembly Constituency. Thereturns of elections counting held on this day which is completed by12-45 A.M. today—(23-2-1967) is as follows:

1. Sri Dodda Bore Gowda . .138822. Myself (A. C. Srikantaiya) . .137943. Sri A. S. Bandisiddegowda ..96514. L. Narasimha Swanw . .4331The number of invalid votes . .4303

As per the returns furnished the difference between myself and SriDoddaboregowda is only 88 I feel doubt about the discretion used by theconcerned authorities to invalidate the above number of votes. I amconfident that I will get more valid votes if a recount is made, further thereis every likelihood of my success.

Therefore, I request you to withhold the result and order for completerecount afresh.

1 am prepared to deposite the necessary amount.

Yours faithfully,

W / A C. SRIKANTAIYA.

Sreerangapatna,

23-2-1967."

On the said application the Returning Officer made his order i Trecount which is Exhibit P-129. That order reads:

PROCEEDINGS OF RETURNING OFFICER,SREERANGAPATNA ASSEMBLY CONSTITUENCY.

No. ELN. 70/66-67 Dated 23-2-67

Read:

1. Application dated 22-2-67 by Sri A. C. Srikanfaiya. contestingcandidate for Sreerangapatna Assembly Constituency request-ing for a recount of votes.

6 o A, C. SRIKANTIAH V. B. DADDABORii GOWDA [VOL. XXX1S

2. Objection petition of Sri A. S. Bandisiddegowda, Sri L. Nara-simha Swamy and Sri B> Doddaboregowda, other contestingcandidates of the Sreerangapatna Assembly constituency objec-ting to the recount.

ORDER

After a careful examination of all aspects of the matter, a recount ofthe invalid votes is ordered at 11-30 A.M. on 23-2-1967 in the TalukBoard Office, Sreerangapatna as per Section 63(3) of the Conduct ofElections Rules, 1961, as the margin of votes between the Petitioner SriA. C. Srikantaiya and Sri B. Doddaboregowda is small. If any of thecandidates or his agent wants the recounting cf the valid votes also iarespect of any polling station, the same is also ordered to be done.

There will be ten tables for the recounting of these votes and the candi-dates are permitted to appoint one agent for each counting table and oneextra agent in addition to the candidates.

Sd/- H. BASAVIAH,

Returning Officer, 23/2,

Sreerangapatna Assembly Constituency."

Copy to all the contesting candidates Srirangapatna Assembly Consti-tuency for information.

It will be seen from Exhibit P-129 set out above that the ReturningOfficer has given no reason for allowing recount of the valid votes of thecandidates when the ground urged in the application was only for recountin respect of the rejected votes.

Sd/- H. BASAVIAH,,

Returning Officer, 23/2, Srirangapatna Assembly Constituency..

'.'• Rule 63(2) states:

" a candidate or, in his absence, his electionagent or any of his counting agents may apply in writing tothe returning officer to recount! the votes either wholly orin part stating the grounds on which he demands suchrecount."

Sub-Rule (3) of Rule 63 states:

"On such an application being made the returning officer sh.illdecide the matter and may allow the application in whole orin part or may reject it in toto if it appears to him to befrivolous or unreasonable."

Sub Rule (4) states:

"Every decision of the Returning Officer under sub-rule (3) shallbe in writing and contain the reasons therefor,"

E.L.R.] A. C. SRIKANT1AH V. B. DADDABORE GOWDA 6 1

In the instant case there was no application in writing made to theReturning Officer to recount the valid votes of die candidates. Ext.P-129 states that if any of the candidates or his agent wants the recount(ing of the valid votes also in respect of any polling station, the same isalso ordered to be done. There is no application in writing made byany candidate for recount of the valid votes in respect of any pollingstation. The petitioner has stated in his evidence that he orally asked forrecount of the valid votes. When the law requires an application in writingto re-count the votes, the Returning Officer had no jurisdiction to orderrecount of the valid votes in the absence of written application. The onlyreason given in Ext. P-129 for allowing recount is the small margin ofdifference. P.W. 3 has also stated in his evidence that that was the onlyreason for allowing recount. A small margin of difference by itself isnot a sufficient ground for allowing recount under Rule 63. Accordingto the first count, the margin of difference was 88 votes between thepetitioner and Respondent No. 1. 7xhibit P-128 does not purport to bean application for recount of all the ballot papers from all the booths; bythe said application the petitioner sought merely scrutiny and recount ofthe rejected ballot papers. The Returning Officer P.W. 3 also understoodthe Petitioner's application as one for recount of the rejected ballot papersand that is clear from a perusal of his order Exhibit P-129 that the Peti-tioner had not made even an oral application as stated by him, for recountof the valid ballot papers. P.W. 3 by his ordei gave an open offer torecount the valid ballot papers if any of the candidates desired. Such anorder is not contemplated by the law. Even after P.W. 3 made such anorder there was no application in writing by the Petitioner or any othercandidate for recount of the valid ballot papers. There is also no orderin writing directing recount of the valid ballot papers. Taking advantageof the order in Exhibit P-129 the petitioner appears to have orally askedfor recount of the valid ballot papery and that request was orally g^ntedby P.W. 3. Under Rule 63 referred to earlier, an order for recount hasto be made in writing and it must contain the reasons therefor. Therebeing no order in writing for recount of the valid ballot papers, there wa?no legal order for recount of the valid ballot papers and; therefore thepetitioner can have no grievance if the said ballot papers were not seru-tinised and there was merely phjysical recount. In my opinion, thePetitioner is taking advantage of the erroneous order made by P.W. 3 andseeking recount with a view to fish out materials in support of a generalplea set out in the election petition that there was improper reception ofabout 1,500 ballot papers. In the circumstances of the case the failureto scrutinise the valid ballot papers and recount does not justify an orderfor inspection, scrutiny and recount in this election petition

The last ground urged is that there was improper reception of about1,500 invalid votes in favour of Respondent No. 1. As stated earlierthe petitioner has given up his case, that there was improper rejection ofabout 1,000 valid ballot papers of his. It is stated in sub-paras 3. 4 and5 of para IV of the election' petition that 4,700 ballot papers which shouldhave been rejected under clauses (b), (c) and (d) of sub-rule (2, ofRule 56 have been improperly accepted in favour of Respondent No. 1But according to the allegations contained in para III (b) of the electionpetition objections were raised in respect of about 1,500 invalid ballotpapers improperly accepted in favour of Respondent No. 1 In sub-para(c) of para ITT, the petitioner, has alleged that the total number of theballot papers in respect of which objections were raised by tne Petitionerand his counting agents amounted to about 2,500. In his evidence the

6 2 A. C. SfUKANTlAH V. B. DADDABORE GOWDA [VOt. ZXXQ

petitioner (P!W. 8) has stated that objections were raised to the reception<of about 1,500 invalid ballot papers. The inconsistency between theallegations in paras III and IV of the election petition as to the numberof invalid ballot papers alleged to have been improperly received, has notbeen explained at all. The petitioner has also not explained how he hasarrived at the figure of 1,500 votes. It is not his case that any recordwas maintained by him or his counting agents concerning the disputedballot pacers.

The evidence of the petitioner and his counting agents P.Ws. 2 and 7is to the etfect that objections were raised at the time of sorting whenthe counting supervisors put invalid ballot papers in the tray reserved forRespondent No. 1. but the counting supervisors disregarded the saidobjections saying that the petitioner or his counting agents may raise theobjections at the close of the count and further, that the petitioner com-plained to the Returning Officer who also told him that he can raise hisobjections at the end. This is what the petitioner as P.W. 8 has stated:

"I was present through out the counting. I was moving about and; listening to my counting agents regarding the complaints they

had. My counting agents complained that the countingsupervisors were putting in the traiys of R-l ballot paperswhich ought to go to the doubtful trays, despite their objec-tions. I also observed that invalid ballot papers were put inthe travs of R-l. I complained orally to the R.O. He toldme that I may raise all objections at the conclusion of thecounting and that I should not disturb during; the progress ofthe count. To the best of my knowledge, about 1,500 invalidballot twiners were included in the trays of R-l. The countingsupervisors stated that they were instructed to treat as validthose ballot carters where one cross mark is clear. As countingof eacn wiling station was over, the ballot papers from eachcounting table were sent to the A.R.O's table with the Form16 account. The A.R.O. scrutinised the ballot papers con-tained in the doubtful bundle and decided what are validballot papers and what are invalid. I was present when theA.R.O. scrutinised the ballot papers. I contended that about1,500 ballot papers treated as invalid for me were valid andought to be taken into account in my favour. With respectto the valid ballot paper bundles of the candidates, the A.R.O.verified the correctness of the number in respect of all bundlesI asked the A.R.Os. to scrutinise the valid ballot paper bundlesto see whether they contained invalid ballot paners. Thatrequest was rejected. The A.R.Os. tola me inat I may give myobiection at the end of the count in writing."

The petitioner's case as alleged in his pleadings is different from whathe has stated in his evidence. This is what he has pleaded in para III(b)of the election pe.tifion:

"The counting commenced on 22nd February, 1967 at about9 A.M. after tf»»*. completion of the pre*:m'nary work and wascommuted at about 1 A.M. on 23rd February, 1967. Thework of the scrutiny and counting of the vofes was donemainly bv Sri Nanjunda Rao. Assistant Returning Officer,assisted by his subordinate officials. The Returning Officer

£.L.R,1 A. C. SR1KANTIAH V. B. DADDABORE GOWDA O i

Sri B. Basavaiah was mainly attending to the counting of theParliamentary Constituency. The Assistant Returning Officer,Sri Nanjunda Rao, as well as the subordinate members ofthe staff were so much tired and exhausted that it was humanlyimpossible to bestow their best care and attention in regardto the work of scrutiny and counting of the votes. When-ever objections were raised by the Petitioner and his PollingAgents, they were either ignored or summarily rejected withoutbestowing any thought or attention. This was mainly due tothe officials! having overworked and strained themselves theprevious day in respect of the counting and scrutiny of thevotes pertaining to Pandavapura Constituency. If only theobjections raised by the Petitioner and his Polling Agentswere considered by the Assistant Returning Officer and if onlythey had applied their mind a little carefully, they would havecertainly declared nearly 1,500 votes as valid and countedthem in favour of the Petitioner which have now been rejectedas being invalid votes. Likewise about 1500 votes which havegone in favour of Respondent No.l would have been rejectedas being invalid if only the objections raised by the Petitionerand his agents were considered and if only the A.R.O. hadapplied his mind to those ballot papers with care and caution".

The petitioner has not alleged in his election petition that he had askedthe Assistant Returning Officers to scrutinise the valid ballot paper bundleswhich request was rejected and they told him to give his objections at the*nd of the count in writing and further that the Assistant Returning Officersmerely verified the correctness of the number of ballot papers containedin the bundles sent up by the counting supervisors. If the AssistantReturning Officers had failed to scrutinise the valid ballot papers bundlessent up by the counting supervisors after sorting, it is a serious derelictionof duty and the petitioner would not have failed to mention the same inhis application for recount and also in the election petition. The Peti-tioner s evidence that the Assistant Returning Officers did not scrutinisethe valid ballot paper bundles sent up by the counting supervisors ispatently false as could be seen from the Form No. 16 accounts exhibitsP-39 to Exhibit P-110. Form No. 16 accounts according to the evidencewere filled up by the counting supervisiors in respect of each polling stationafter sorting the ballot papers of that particular polling station. FormNo. 16 account and the ballot papers duly sorted were sent by the count-ing supervisors to the table of the Returning Officer for scrutiny. Thescrutiny was done by the Assistant Returning Officers. It is admitted that<t"t doubtful ballot papers were scrutinised by the Assistant ReturningOffier*1* after giving an opportunity to the candidates to have the'r say.According to the petitioner's evidence, the Assistant Returning Officersmerely verified the number of ballot papers contained in the valid ballotpapers bundles of the candidates and they did not scrutinise them to secif they contained invlid ballot papers. Exhibits P-48, P-61, P-68, P-71,P-75, P-86, P-87, P-99 and P-109 are the Form No. 16 accounts relating topolling station Nos., 10, 23, 30, 33, 37, 48, 49, 61 and 71 respectively.These ballot paper accounts show that some of the ballot papers containedin the valid ballot paper bundles of the candidates wee rejected as invalidvotes after scrutiny by the Assistant Returning Officers. From ExhibitP-48 it is seen that the total number of doubtful ballot papers sent bv thecounting supervisor was 60 and that the valid ballot paper bundle of Res-

64 A. C. SR1KANTIAH V. B. DADDABORE GOWDA LVOL. XXXII

pondent No. 3 contained 73 ballot papers; one out of the said 73 ballotpapers on scrutiny was rejected by the Assistant Returning Officer. FromExhibit P.-61, it is seen that two ballot papers contained in the bundles ofRespondent No. 1 were rejected as invalid on scrutiny. Exhibit P-68shows that three ballot papers of Respondent No. 1 and one ballot paperof Respondent No. 3 were rejected after scrutiny. Exhibit P-71 showsthat four ballot papers of Respondent No. 1, one ballot paper of Respon-dent •No: 2 and three ballot papers of the petitioner were rejected afterscrutiny. Exhibit P-75 shows that five ballot papers of Respondent No. \,one ballot paper of Respondent No. 2 and two ballot papers of the peti-tioner were rejected after scrutiny. Exhibit P-86 shows that two ballotpapers of Respondent No. 3 were rejected after scrutiny. Exhibit P-87shows that one ballot paper of Respondent No. 2 and one ballot paperof Respondent No. 3 were rejected after scrutiny. Exhibit P-99 shows thatone ballot paper of the petitioner was rejected as invalid after scrutiny.Exhibit P-109 shows that one ballot paper of the petitioner was rejectedafter scrutiny. Thus, a perusal of Exhibits P-39 to P-110 shows that theballot papers were scrutinised by the Assistant Returning Officers and theevidence of the petitioner in this regard is palpably false.

The non-mention of any improper reception of votes and a prayerfor scrutiny of the valid ballot papers in the petitioner's applicationExhibit P-128 for recount is also significant. If as stated by him in hisevidence that the Assistant Returning Officers had told him that he maygive his objections in writing at the end of the count, he would not havefailed to state in Exhibit P-128 that a large number of invalid ballot papers,were improperly accepted for Respondent No. 1 and that he claimsscrutiny and recount of the said ballot papers.

The petitioner has prayed for recount of the valid ballot papers ofRespondent No. 1 in respect of nine polling stations specified in para1V(13) of the election petition. P.W. 1 Shivappa was the counting Super-visor at Table No. 5 at the original count. The ballot papers from pollingstations Nos. 5, 25, and 35, besides some others, were sorted by P.W. 1at Table No. 5. P.W. 1 has stated that whenever the counting agents raisedany objections, he put the ballot papers concerned in the doubtful tray andthat it is only when there was no objection by any of the candidates thathe put the ballot papers in the tray of the candidates. P.W. 1 also was.one of the counting supervisors at the recount. He has stated that at thetime of recount he did not notice any doubtful ballot papers. Nothing is*suggested as to why I should not believe the evidence of P.W. 1. Thepetitioner has not examined his counting agent at Table No. 5. Apartfrom the interested testimony of the petitioner there is no evidence tosupport his case that any doubtful ballot papers were put in the tray ofRespondent No. 1 at Table No. 5 when the papers received from pollingstation Nos. 5, 25, 35 were sorted. The ballot boxes from Polling StationNo. 22 was opened at Table No. 2. The petitioner's counting agent atTable No. 2 at the time of the first count has not been examined. Respon-dent No. 1 has examined his counting agent as R.W. 1 who has stated thatno doubtful ballot papers were put in the tray of Respondent No. 1.

The ballot boxes irom Polling Station Nos. 21, 26 and 36 were openedand the ballot papers were sorted at Table No. 1. P.W. 2 was the peti-tioner's counting; aaent at the said table. He has stated that he had raised

E.L.R.] A. C, SRIKANTIAH V. B. DADDABORE GOWi>(\ 6 5

objections to sonu- of the ballot papers put in the tray of Respondent No.1 and the counting supervisor had disregarded his objections in respectof about 300 ballot papers in all. The counting supervisor at Table No. 1was one Keshava Murthy, Head Master of the Municipal High School,Sreerangapatna. P.W. 2 is the Secretary uf the Managing'Committee ofthat School. No bias is alleged against the counting supervisor Sri KeshavaMurtlr'. P.W. 7 was one of the counting agents of the petitioner at theoriginal count as a2so recount. He also supports the evidence of the peti-tioner. In his cross-examination he has admitted that he cannot give thepolling station numbers regarding which he had raised objections at theoriginal count. P.Ws. 2 and 7 have also not stated the nature of theobjections they had raised. The petitioner has not alleged any bias orother ground tending to impeach the integrity of the counting officials.He has also not alleged that at the original-count himself and his countingagents were denied the opportunity of examining the ballot papers. Fromthe evidence I am satisfied that there was no irregularity in the first countand that the Assistant Returning-Ofncers had scrutinised both the validand doubtful ballot papers. None of the grounds urged by the petitionerare sufficient in my opinion to order inspection, scrutiny and recount ofthe ballot papers of Respondent No. 1.

My finding on Issue No. 1 is that the election petition contains adequatestatement of material facts for scrutiny and recount of votes, but on IssueNo. 2 I hold that the eclection petitioner has not made out a pritna faciecase for inspection, scrutiny and recount of the ballot papers. In view ofmy finding on Issue No. 2, the petitioner's prayer for inspection, scrutinyand recount of ballot papers is rejected. Consequent on the rejection ofthe petitioner's prayer for inspection, scrutiny and recount, Issue Nos. 3and 4 have to be answered against the petitioner.

In the result the election petition fails and is dismissed with costs of.Respondent No. 1. Advocate's fee Rs. 250)-.

Petition Dismissed^

-66 K. S. REDDY V. A. R. REDDY tVOL. XXXU

IN THE fflGH COURT OF ANDHRA PRADESH AT HYDERABADK. SANGAMES3VARA REDDY

A. RAMACHANDRA REDDY

(BASI REDDY J.)

October 20. 1967.Representation of the People Act, 1951, ss. 109, 110 and l\l-^Petitioner

seeking dismissal of election petition on ground he was not pressing it—// prayer can be allowed without complying with requirements of Ss.109 to 111-

After an election petition challenging the respondent's election had beenadmitted and notice issued to him, the petitioner filed an application prayingthe petition be dismissed as he was not pressing it. It was contended thatthe application did not amount to withdrawal of the election petition andit was therefore not necessary to follow the procedure prescribed underSection 109, 110 and 111.

HELD: Dismissing the election petition.

The application for dismissal of the petition in the present case was ineffect an application for withdrawal under S. 109 and compliance with pro-visions of Sections 109 to 111 was therefore essential.

Election Petition No. 17 of 1967 and Application No. 181 of 1967.S. K. Venkatramiah for the petitioner-applicant.P. Chennakeswareddy for the respondent.

ORDER

Basi Reddy J.—Mr. Venkataramaiah, the learned Advocate for theelection petitioner, submits that he has been instructed bv his client torepresent to the Court that he is not pressing the election petition and thatthe same may be dismissed.

This election petition was presented on 11-4-1967 within the period oflimitation, and all the necessary pre-requisites for the presentation of avalid election petition were complied with. My learned brother, Kuma-ra'yya, J., by an order dated 19-4-1967, was satisfied that the election peti-tion was in order. He, therefore, directed notice to issue to the respondentto appear and answer the daim made in the election petition on ! 6-6-1967.

On 16-6-1967, Mr. Chennakeshava Reddy, Advocate, filed his appear-ance for the respondent and craved for time for filing a written statement.The case was adjourned to 30-6-1967. On that date, the learned advocatefor th= petitioner wanted some time to file a rejoinder and the case was ad-journed to 5-7-j 967. On that date, he represented to the Court that hedid not wish to file a rejoinder atid wanted to file an application to amendthe petition and wanted one week's time. Time was granted till 12-7-1967.

B.t.K.; K. S. REDDY V. A. R. REDDY 67

in ine meantime tne respondent's Advocate filed an application (ApplicationNo. 93/07) for striking out certain paragraphs in the election petition, assuMcient particulars were not furnished.. On 21-71967, after hearing thearguments, I allowed the application (Application No. 118/67) filed bythe petitioner for carrying out certain amendments in the election petition .ana tne petitioner was given time till 3-8-1967 to carry out the necessaryamendments and file an amended copy of the petition, and the applicationfiled by the respondent for striking out certain paragraphs in the electionpetition, was dismissed.

On 3-8-1967, the learned Advocate for the petitioner wanted time tocarry out the amendments and the respondent also wanted time to file anadditional written statement. So, the case was adjourned to 14-8-] 967.Today i.e., 14-8-1967, the learned Advocate for the petitioner filed anapplication (application No. 181 of 1967) without quoting any section ofthe Representation of the People Act. It purports to be an applicationunder Section 151 C.P.C. and the prayer is:

"For the reasons stated in the accompanying affidavit, the petitionerprays that this Hon'ble, Court be pleased to dismiss the ElectionPetition No. 17/67 and pass such further or other orders asthis Hon'ble Court may deem fit".

In support of this application, an affidavit sworn by the petitioner.K. Sangameswara Reddy, has been filed. This is how the affidavit reads:

"I, K. Sangameswara Reddy, son of B. Venkata Reddy, Hindu,aged about 32 years, residing at Yousufpet, Jogipet Taluk,Medak District, having came down temporarily to Hyderabaddo hereby solemnly sincerely affirm and state as follows:—

1. I am the petitioner in above Election Petition and I am awareof the facts of the case.

2. I have filed the above Election Petition and I state that I amnot pressing the case and the same may be dismissed with-out costs".

Now, the learned Advocate for the petitioner submits that, since this ismerely an application seeking a dismissal of the election petition on theground that the petitioner is not pressing it, this application does not amountto an application for withdrawal of the election petition and therefore it isnot necesary to follow the procedure prescribed under sections 109, 110 and111 of the Representation of the People Act. I am unable to accept thiscontention. Once an election petition has been filed and it is found to be inorder, it can be dismissed under one of the two sections mentioned in theRepresentation of the People Act viz., Section 86 (1) or Section 98.Section 86(1) comes into play when the election petition does not complywith the mandatory provisions of section 81 o r Section 82 or Section 117of the Representation of the People Act. The present case is not one such.Section 98 comes into play only after full trial of the election petition andone of the orders that the High Court can make at the conclusion of thetrial, is an order dismissing the petition. That stage has not been reachedhere. In between these two stages, there is no provision in the Act forthe person who has filed an election petition to ask the Court to dismiss theelection petition on the ground that he is not pressing it. Even if such aprayer is made, it is in truth an application for withdrawal of the election.:

<>8 K. S. REDDY V. A. R. REDDY IVOL. XXXII

petition as contemplated by •Section 109 of the Act. I am,therefore, fullysatisfied that although this application purposts to be filed under Secti$>8.151 C.P.C. and is not in terms described as an application for withdrawalit is in truth and substance an applicatibn for withdrawal of the EleetiojfcPetition No. 17/67. Treating it as such, I direct, under Section 109/ O2')iofthe Act, that application will be heard on 18-9-67 and that notice of tinsapplication shall be published in the Official Gazette. It is represented %

; tife learned advocate for the respondent that notice of the applications wM»,a copy thereof, has been served on him.

This application coming for further orders on Monday the 18th day ofSeptember 1967, upon reading the order dated 14-8-1967 and made hereinand the Andhra Pradesh Gazette dated 24-8-1967 wherein notice of theapplication has been duly published in pursuance of the said order dated14-8-1967, the court made the following.

ORDER:—By my order dated 14H8-1967, I had directed notice of theapplication filed by the petitioner for withdrawal of Election Petition No>17 of 1967 to be published in the Official Gazette. Notice was accordinglypublished in the Andhra Pradesh Gazette Part II dated 24-8-1967.

No one has appeared to oppose this application. I am, therefore, satis-fied that this application has not been induced by any bargain or considera-tion which ought not to be allowed. I therefore, deem it proper that thisapplication for withdrawal should be granted. I do so accordingly.

This order of mine granting the application for withdrawal, shall bepublished in the Official Gazette and also in the following dailies:

(3) Milap.(1) Deccan Chronicle.(2) Andhra Bhoomi.

The petitioner shall pay the costs of the respondent, which are fixed atRs. 300/- inclusive of Advocate's fee. Call on 20-10-1967,

This Election Petition coming on for final orders upon perusing theorders dated 14-8-1967 and 18-9-1967 made in Application No. 181 of1967 and the Andhra Pradesh Gazette dated 5-10-1967, the "DeccanChronicle", the "Andhra Bhoomi" and the "Milap" wherein the said orderdated 18-9-1967 granting the application for withdrawal have been dulypublished as directed therein, the court made the following

ORDER: By my order dated 18-9-1967 on Application No. 181 of1967, I granted leave to K. Sangameswara Reddy the petitioner in ElectionPetition No. 17 of 1967, to withdraw the election petition and directedthe notice of withdrawal to be published in the Official Gazetteand in some of the dailes. This was duly published in the Andhra PradeshGazette dated 5-10-1967. It was also published in Deccan Chronicle,Andhra Bhoomi and Milap. No one has come forward with an applicationto be substituted as petitioner in the place of the party withdrawing theelection petition.

The election petition is, therefore, dismissed with costs of the respon-dent, which are fixed at Rs, 300/- inclusive of Advocate's fee.

Petition Dismissed

E.L.R I K. T. KOSALRAM V. SANTHOSHAM 6 9 .

IN THE HIGH COURT OF MADRAS

K. T. KOSALRAM

v.

DR. SANTHOSHAM

(VENKATADRI, J.)

October 20, 1967.

Ballot papers—Inspection and recounting of—Prima facie case to be madeout, giving particulars—Returns—irregularties in the filing of—//materially affects the election.

•Costs—Awarding of costs when election petition is dismissed—High Courtif has discretion.

The petitioner, in hi* election petition alleged that there had been variousacts of irregularities, commission and omission in the course of the countingof the votes at the various counting centres. According to him many ofthe ballot papers which should have been invalidated were validated infavour of the first respondent and a number of votes which should 'havebeen validated in his favour were invalidated.

HELD

(i) At every stage in the process of counting the counting agents andthe extra counting agents have opportunity to watch the progress of count-ing, or inspecting the doubtful votes making their representation, and offinally demanding recount if they are not satisfied with the method of count-ing. The doctrine is that the acts of the officer of election within the scopeof his authority are presumed to be correct. Therefore it is necessary toallege and prove that their official acts are knowingly wrongful, maliciousand corrupt. In the instant case it was clear from the evidence that theofficers of election had discharged their duties as required by law.

(ii) The provisions in the statute prescribing specific duties of theseofficers are directory unless the acts prescribed are in their nature essentialfor the validity of the election. In an election the returns are prima fadeevidence of the truth of their contents. But the presumption so raised maybe rebutted by proof that they are fraudulent and fictitious to such anextent as to render them unreliable. Merely because some of the columnsare not filled up, the alterations are not initialled, the figures are correctedor interpolated, would not justify the rejection of the entire form if it isotherwise proved by legal and competent evidence. The defect may beremedied by parol proof and the documents so corrected will be competentevidence of the result of the election. The alleged mistakes and errors com-mitted bv the election officers in their returns cannot be said to have affectedthe result of the election in any v/av.

7O K. T. KOSAfcRAM • V. SANTHOSKAM LVQL. XXXII' ,

(iii) The petitioner had not maae out any prtma yacie case either torinspection and scrutiny or recount. An order £or inspection, scrutiny orrecount is not a matter of right. It would be ordered only if the petitionermakes out a prima facie case giving specific instances with reference toparticular polling stations and the nature and numbers of ballot papersrejected.

The Taunton case, 20 M & H 66 at 74; Srinivasan v. Election Tribunal,Madras, 11E.L.R. 2W,Woodward v. Sarsons 1875 L.R. 10 C:P. 733; TheEastern Division of Clare Case 40' M. & H. 162; Islington Division Case,50' M. & H. 120; Jag jit Singh v. Kartar Singh, A.I.R. 1966 S.C. 733; RamSewak v. H. K. Kidwai, A.I.R. 1964 S.C. 1249; referred to.

On the question whether though under s. 119 award of costs shall be atthe discretion of the High Court, under the proviso to s. 119, the HighCourt has still tiie discretion in the matter of costs when an election petition,is dismissed under s. 98(a), . ,'

HELD: The High Court has still got the discretion in regard to costseven though the election petition has been dismisv under s. 98(a). Aproviso is a subsidiary and dependent part of ths statute it may apply tothe whole of the section. There is no rule that the first or enacting partis to be construed without reference to the proviso.

Commissioner of Commercial Taxes v. R. S. Thaver 20, S.T.C. 453;referred to.

Election Petition No. 10 of 1967

JUDGMENT

VENKATADRI J.—This is a petition by Sri K. T. Kosalram againstthe election of Dr. M. Santhosham from 38, Turichendur ParliamentaryConstituency. The latter was elected by a narrow margin of 394 votes.The petitioner d been various acts of irregulari-ties, commissi ourse of the counting of votes atthe various c g to him, many of the ballotpapers which d were validated in favour of thefirst responden a number of votes which shouldhave been va invalidated. After narrating thevarious acts by the counting officials in thevarious count ess of counting the ballot papers,the petitione t 400 ballot papers cast in favourof the petitiothat the mthe marks ballot papevotes of thefirst respondhave been tby the counthe doubtfuthe followiReturning Othe directioReturning O

r sums up as foll

n improperly rejected on the ground

ar ballot papers on the ground thatw allot papers marked as doubtfulrs without adjudication, about 1250 p dled and counted in favour of thee

retl ngf

nsf

has alleged that there haon and omission, in the counting centres. Accordinshould have been invalidatet (Dr. M. Santhosam) and

lidated in his favour wereof irregularities committeding centres, during the proc

ows. Abouer have been invalidated orks were faint; about 450 ere smudged; about 950 b were summarily rejected etitioner were wrongly bun

nt, and about 60 to 70 per cent of the missing votes shouldated as the votes of the petitioner. There was discriminationing staff both in the matter of invalidation and validation ofballot papers. The petitioner has also pressed before me acts of omission, negligence and default by the Assistantficers of the various counting centres, who were acting under of the Returning Officer at Tirurtelveli. (I) The Assistantficer did not fill ur> the stntutorv forms (Form 16) correctly;

E.L.R.J K. T. KOSALRAM V. SANTHOSHAM 7*

it is full of mistakes, errors, corrections, alterations, additions and substrac-tions; (2) in many cases, the total number of ballot papers actually foundin the ballot boxes did not correspond to the total numDer of ballot papersissued to the voters; (3) no reasonable opportunity was given to the peti-tioner's agents (counting agents and extra counting agents) to examinethe doubtful ballot papers and to state their objections to the AssistantReturning Officers, before they were rejected; (4) there was neither comp-liance with the provisions of the Election Law nor observance of the rulesframed under the Election Manual and the other instructions given to thecounting start' as well as counting agents, and (5) in consequence of theseirregularities and also the confusion that prevailed in the several countingcentres and due to the defective arrangements made for counting of theballot papers by the Returning Officer and also due to the inefficiency andincompetency of the officers and the staff, the votes of electors were notproperly rendered in the statutory form, and therefore, it ihas becomeimpossible to find out the true result of the election in this ParliamentaryConstituency. On these grounds, the petitioner submits that it is justand necessary to have scrutiny and recount of all the rejected votes andof all the valid votes in the six assembly components. The petitioner, there-fore, prays that the election of the returned candidate, the first respondentherein, should be declared void and that the petitioner should be declaredas duly elected for the Tiruchendur Parliamentary Constituency.

The Returning Officer, Tiruchendur Parliamentary Constituency, whohas been impleaded as the fifth respondent in this petition, has hied ananswer statement to the effect that he had made arrangements as perthe instructions given to him, in such a way as to give facilities to thecounting agents to observe the work done by the counting staff, to watchthe sorting, counting and bundling up of the counted ballot papers foreach candidate and also for putting the doubtful ballot papers in a sepa-rate compartment for their adjudication by the Assistant ReturningOfficer and to make the necessary representation to the Assistant Return-ing Officer concerned by pleading, protesting or asserting, before he giveshis final decision on the validity or otherwise of the doubtful votes. Hehas denied that the counting was rushed through in the evening. He hasaverred that no protest, either oral or written, was made to the AssistantReturning Officers before the counting was ciosed. He has stated thatthe Assistant Returning Officers did not make any premature publicationof the result of the candidates. The Assistant Returning Officer aftercounting the ballot papers received from the various polling stations,despatched them to the Returning Officer at Tirunelvali along with thefilled up statutory forms, Form 16 and Form 20, and at Tirunelveli theconsolidation of the votes secured by each candidate was made, recordedand the result duly declared by the Returning Officer. It is a fact that73 ballot papers were found missing, but it is unavoidable and it is nota serious matter to be taken notice of. He had submitted that the peti-tioner is not entitled to ask this Court for inspection, scrutiny or recountsince the election had been conducted strictly in accordance with the rulesand regulations of the election law and that the decision is not vitiatedfor any of the reason mentioned by the petitioner.

The first respondent, the returned candidate has also filed his writtenstatement, generally supporting the statement made by the ReturningOfficer. He has stated that the allegations made by the peitioner are1 E.C.—6

72 K. T. KOSALRAM V. SANTHOSHAM LVOL. XXXII

based on surmise and conjecture, and that they are all afterthought, afterthe election was over and as a result of the defeat of the petitioner. Thefirst respondent states that, on the basis of the small margin of votesbetwten him and the petitioner, the petitioner is seeking thriiugh thispetition to disturb the result of the election.

It is on these pleadings, this Court has to conduct an enquiry intothe allegations made by the petitioner and decide whether the first respon-dent was duiy elected to the Parliament.

An election enquiry is a judicial proceeding and not an inquisitorialone. In one of the earliest cases on the subject, The Taunton case (1)20'M & H 66 at 74. Grove, J. has observed:

'"It must be borne in mind in these cases, that although the objectof the statute by which these election tribunals were createdwas to prevent corrupt practices,, still the tribunal is a judi-cial, and not an inquisitorial, one; it is a court to hear anddetermine according to law, and not a commission armed withpowers to inquire into and suppress corruption. To nse thelanguage of that eminent judge, the late Mr. Justice Willes,'No amount of evidence ought to induce a judicial tribunalto act upon mere suspicion or to imagine the existence of evi-dence which might have been given by the petitioner, butwhich he has not thought it to his interest actually to bringforward, and to act upon that evidence which really has beenbrought forward'."

Balakrishna Ayyar, J. has observed in A. Srinivasan v. Election Tribu-nal, Madras (2) 11 E.L.R. 278 & 293:

"An election petition is not a matter in which the only personsinterested ate candidates who strove against each other atthe elections. The public also are substantially interested init and this is not merely in the sense that an election has newsvalue. An election is an essential part of the democraticprocess. The citizens at large have an interest in seeing andthey are justified in insisting that all elections are fair andfree and not vitiated by corrupt or illegal practices."

Thus, this is a petition wherein the public are also interested apartfrom the complaints alleged by the petitioner against the conduct of theelectoral staff inside the counting hall, after the poll. The whole comp-laint of the petitioner is centered round the counting hall at the respectivecounting centre of this Parliamentary Constituency. In this Case, tl'erehave been four counting centres, mostly in public buildings like TalukOffice or public school, in the six assembly components. Rules have beenframed under the Representation of the People Act, as to what should be donefrom the stage of the arrival of ballot boxes from the polling stations to thecounting centres, under the supervision" of the Assistant Returning Officer,to whom powers have been delegated by the Returning Officer. The Assist-ant Returning Officer makes arrangments for sorting, counting and bundl-ing of the ballot papers candidate-wise, and counting has, as far as practi-cable, to proceed continuously allowing a short time for refreshments. TheAssistant Returning Officer admits into the counting centres only his assis-tants and clerks; and nobodv is allowed inside except the candidates, theirelection agents and counting agents, whose appointments have already

£ I...R..1 K. T. KOSALRAM V. SANTHOSHAM 73

teen duly made and recognised by the officer. The Assistant ReturningOfficer must give to the counting agents all reasonable facilities for over-seeing the proceedings and also such information with respect theretoconsistent with the orderly conduct of the proceedings. The countingagents could watch that the ballot papers are rightly sorted and doubtfulvotes separated and bundled with a string and sent to the table of theAssistant Returning Officer (A.R.O.). The Assistant Returning Officer(A.R.O.) should give reasonable opportunity to the extra countingagents, who will be seated either by his side or near his table,to inspect the doubtful ballot papers. The Assistant ReturningOfficer, after giving such inspection of these doubtful ballot papers, adju-dicates and gives his decision thereon. He enters his decision on thesedoubtful ballot papers in Part II of Form 16. Finally, the AssistantReturning Officer prepares Form 20, the result sheet. The AssistantReturning Officer also makes arrangements to announce the result of eachpolling station on the blackboard, for the sake of information to theagents of the respective candidates. Then the A.R.O. despatches allthe ballot boxes, the records and the forms to the Returning Officers forthe Constituency. It is there the consolidation of the results of the variouscounting centres takes place, and it is the Returning Officer who announ-ces the result of the election. Before he makes the declaration, any can-didate concerned or his election agent may apply in writing to the Return-ing Officer asking for recount of all or any of the ballot papers counted,stating the grounds on which he demands the same. The ReturningOfficer must decide the application and record his reasons for coming tothat decision. He may allow the application in full or in part, or he mayreject the application, if it appears to him to be frivolous or unreasonable.Then the Returning Officer declares the result of the election, on declaringthe name of the elected candidate, who has secured the largest number ofvalid votes. He is thus required to certify the return of the election.From the above, it will be clear that, at every stage in the process ofcounting, the counting agents and the extra counting agents have opportu-nity to watch the progress of the counting, that is of seeing the work ofthe counting staff and observing the method of counting the votes of ins-pecting the doubtful votes, making their representation, and of finallydemanding of recount if they are not satisfied with the method of count-ing.

The general election for the Tiruchendur Parliamentary Constituencytook place on February 18, 1967, in about 624 polling stations comprisedin the six assembly components of that Constituency. The counting ofthe ballot papers of all these polling stations took place in four centres,at Suchindram for the Kanyakumari segment, at Ambasamudram forthe Cheramahadevi segment, at Nanguneri for the Nanguneri and Radha-puram segments and at Tiruchendur for the Tiruchendur and SattankulamSegments. The Assistant Returning Officers at these centres were ?11experienced revenue officials of the status of Deputy Collector. Thepetitioner has complained that, in almost all the counting centres, theAssistant Returning Officers exhibited a reckless disregard of the essentialrequirements of the election law, in the matter of sorting, counting andbundling of the ballot papers, and in the matter of filling Up of the Statu-tory forms, that their acts are unreliable and that the records havedestroyed their value as a piece of evidence in ascertaining the true intentand will of the voters. According to the petitioner, these acts are suffi-cient to set aside the election of the returned candidate, and it is for theseofficers to prove before this Court the fairness and legality of the election.

74 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXlj:

In order to prove his case of such irregularities and acts of commis-sion and omission on the part of the Assistant Returning Officers, thepetitioner adduced evidence through his extra counting agents. For theTiruchendur and Sattankulam components, the extra counting agent of,the petitioner, at the time of the counting, was one Jawahar Raj (P. W. 4)a young advocate practising at Tirunelveli. According to his evidence, atleast 100 votes were rejected unlawfully by the A.R.O. on the ground ofmultiple voting, whereas in these ballot papers due to wrong folding ofthe ballot paper, a second impression of trie original mark was ioundin the last compartment and that such ballot papers are valid accordingto the instructions. He has further deposed that, on the other hand,the Assistant Returning Officer has validated invalid votes of the firstrespondent, when there was smudge mark that is mark other than a markmade by the official'seal. Similarly, he states that in Sattankulam about100 votes which were legally due to the petitioner were invalidated onthe ground of multiple voting due to wrong folding, while many voteswhich ought to have been invalidated have been validated in favour ofthe first respondent. Likewise, in Kanyakumari segment, the extra count-ing agent of the petitioner, one Devisundaram (P.W. 1) has deposed thatabout fifty votes were improperly rejected for the petitioner on the groundof multiple voting and about 150 votes invalidated on the ground of faintimpression, though such votes ought to be validated for the petitioneraccording to the rules. He has also deposect'that about 1,200 votes ofthe petitioner got mixed up with the votes of the first respondent duringthe course of sorting and bundling of votes. His complaint is that theAssistant Returning Officer of that component did not care to do therandom check of the counted bundles, as and when they came to histable from the counting tables. This witness has attributed motive to;he counting staff for the mixing up the petitioner's votes with the votesof the first respondent, and has'also stated that the Assistant ReturningOfficer deliberately refrained frorff adjudicating the doubtful ballot papers,when it is his duty to decide the validity of such doubtful votes. Thiswitness claims that in all more than 1,250 would have gone_into theaccount of the petitioner, if the votes had been properly counted in theKanyakumari segment. P.W. 3, Adaikkalam Fernando, an advocatepractising at Tirunelveli was the extra-counting agent of the petitionerat the counting centre at Nanguneri for the Nanguneri and Radhapuramcomponents. He has deposed that the Assistant Returning Officer didnot care to verify the doubtful votes but simply trusted them as rejectedvotes without any adjudication by him. He has estimated that about200 such votes should have been validated for the petitioner. He hassaid that the Petitioner lost about 50 votes under the category of multiplevoting though they should have been validated in his favour. He hasalso produced a note-book (E.P.10) maintained by one of the countingagents of the petitioner noting the particulars of each polling station andthe number of votes secured by each candidate and also the number ofinvalid votes. He has also stated that in respect of Nanguneri component,about 350 doubtful votes would have been validated in favour of thepetitioner, if the Assistant Returning Officer had taken the trouble ofscrutinising the doubtful ballot papers. He has stated that in the eveningas there was rush in counting, proper checking could not be done. Hestates that in this component the petitioner woulct have got fifty voteswhich were rejected on the ground of~double impression and about 100votes which were rejected on the ground of faint impression.

:E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 75

Again, another extra counting agent of the petitioner P.W. 2. Kume-iraguruparan, a senior practitioner of the Tiranelveli Bar, has deposed thathe was the extra counting agent of the petitioner for the CheranmahadeviComponent of the Constituency. He has deposed that the counting washurried and hasty in the evening and there was no random check of thebundles by the A.R.O. But he did not attribute any motive for this. Hedeposed that about 200 votes, if properly scrutinised, could be declaredas valid votes given to the petitioner. Though he said that he was notgiven sufficient opportunity in the matter of adjudication of doubtful votes,he said that it could not be said that the A.R.O. brushed aside hisobjections.

The entire evidence adduced by the petitioner was repelled ar.d repudia-ted, denied and assailed by the various Assistant Returning Officers, whenthey gave evidence in support of the~ validity of the election. All theseAssistant Returning Officers, as stated previously by me, are all experiencedand senior officers of the Revenue Department. They have had experiencein the type of the electioneering work, since they had worked as AssistantReturning Officers in the previous elections. These officers have deposedthat, before they allowed their staff to enter upon their duties, they con-ducted classes instructing them as to how they should discharge theirduties; that they themselves supervised the process of counting and checkedthe counted bundles of fifty each; that they checked them with the helpof their assistants; that, as and when they adjudicated the doubtful ballotpapers they gave every opportunity to the extra counting agents; whowere seated near their table or by their side, for inspection of the ballotpapers and that only after ascertaining their views, they gave theirdecision, which they endorsed on the back of the doubtful papers when-ever they rejected them and that they gave credit to the respectivecandidate by putt'ns a plus mark against his figure in the form 16and that at no time either the extra counting agents or the countingagents ever complained to them that they were not given adequate facilityor opportunity either in the matter of seating accommodation or in thematter of inspecting the doubtful votes and making representation at thetime when decision was taken on the doubtful ballot papers. Theseofficers state that they have scrupulously followed the rules and instruc-tions given to them, in the matter of validating the votes with twoimpressions and faint impression of the official seal. According to them,there was no occasion either for controversy or conflicting view with theextra counting agents, or the couritiris^agents for that matter. In fact,in one or two counting centres, the extra counting agents of the petitionerhad complimented and commended the work of these officers.

The evidence of the Assistant Returning Officer was supported by theevidence of the extra counting agents of the first respondent, and it willsuffice to mention the evidence of two of them. R. W. 3, Boaz, was theexTa counting agent of the first respondent for the Sattankula"! componentHe has deposed that the process of counting went in quietly and well, andthat he cot the im'oression tha1 there was no necessity for them to bepresent there, and that the whole operation went on smoothly. To thesame effect is the evidence of R.W. 11, Bepin Fernando, an advocate,who acted as the extra counting asent of the firs*" respondent, for the Tim -chendur component of the Constituency. He has deposed that the AssistantReturning Officer gave ample opportunities to the extra counting agents

76 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXII

to inspect the ballot papers and then only he decided whether a particulardoubtful ballot paper was a valid vote or an invalid vote.

In this state of evidence, learned counsel for the petitioner has contendedbefore me that there has been improper rejection and reception of ballotpapers, mixing up of ballot papers of one candidate with another, andwholesale rejection of doubtful votes without adjudication by the AssistantReturning Officers. He submits that his extra counting agents have provedthat there had been improper rejection and reception of ballot papers,that his witnesses have shown that some of the Assistant Returning Offi-cers, especially in Radhapuram and Nanguneri, have rejected all the doubt-ful ballot papers without any adjudicaon whatsoever and even wuaoutany opportunity for inspection and that they have thereby contravenedthe rules of the Election Manual. Learned counsel for the petitioner fur-ther submits that, though his witnesses were not able to give details inregard to particular polling stations^ there is sufficient evidence, oral anddocumentary, (Ex. PI, Ex. P. 10 "and Ex. P. 12), and that cannot beruled out that there is an element of error or mistake committed by theAssistant Returning Officers and that therefore he is entitled to ask thisCourt to give him inspection and scrutiny and to order recount of suchballot papers improperly rejected for the petitioner and improperly validatedfor the first respondent.

Therefore the primary question that arises for my consideration iswhether these electoral officers, that is the Assistant Returning Officers andthe counting-staff were inefficient and incompetent men, who have acted inutter disregard of the essential requirements of the election law, rules andregulations, in the matters of counting and making the necessary entriesin the statutory form (form 16) at the various counting centres.

These officers, as stated previously by me, are men of decent statusin the Revenue Department. They were specially selected to dischargethe duties of election. The counting staff were mostly government ser-vants drawn from the various Government Officer, and other from localbodies and aided schools. The counting staff were given the necessarytraining, in order to enable them to perform their duties efficiently, andwithout making mistakes. It is useful in this connection to quote a passagefrom McOrary on Elections, (Fourth Edition) at page 189:

"The officers of election are chosen of necessity from among allclasses of the people; they are numbered in every State bythousands; they are often men unaccustomed to the formalitiesof legal proceedings. Omissions and mistakes in the dischargeof their ministerial duties are almost inevitable. If this Houseshall establish the doctrine that an election is void becausean officer thereof is not in all respects duly qualified, or becausethe same is not conducted strictly according to law, notwith-standing it may have been a fair and free election, the resultwill be very many contests, and, what is worse, injustice willbe done in many cases. It will enable those who are so dis-posed, to seize upon mere technicality in order to defeat thewill of the majority."

The office of the Returning Officer is an honourable and distinct one.Tfae Returning Officer plays a very important part in an election. The

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 77

duties of the Returning Officer in connection with the election are givenin the executive instructions issued by the State Government. They varyaccording to the class of constituency. The important duties of theReturning Officer are to make arrangements for sufficient number of pollingstations in his constituency, for the counting of votes, for arranging the safecustody of the election papers and for declaring the result of the election.It is the duty of the Returning Officer to do everything necessary foreffectively conducting the election, in accordance with the provisions ofthe iiatute rules and regulations and also the instructions. He is boundto act impartially throughout the election. It is his duty to exercise ageneral superintendence and control over the election in his constituency.It is to him that candidates and election agents should look lor instrucuonsand advice. It is before him that objections can be lodged as to thevalidity of the ballot papers and also complaints as to personation, underinfluence or corrupt practice. The successful management of the electionWL ;pend to nu imall extent on the efficiency of me Returning Orricerand his assistants. He must see that opportunity is afforded to all votersor electors, who may wish to vote, to record their votes. He has to main-tain me secrecy of tiie ballot and see that the election is free and unrestrain-ed. He should see that the counting agents do not delay the proceedings inthe course of the counting of votes. It is his duty to keep order at thepolling station to see that the election is conducted observing the secrecyof the ballot and to regulate the number of electors to be admitted in tothe polling station. The Returning Officer is responsible for the receipt ofthe returns from the counting staff and the Presiding Officers of the variouspoling booths. These officers must exercise tact, patience and commonsense. There should be co-operation between the Presiding Officer andthe polling agents. Any friction will cause delay. The counting agentsalso must assist in preserving the secrecy of the ballot. They should nottake actual part in the counting of the ballot papers. They should be ata little distance but they must be in a position to see the ballot papers.

But they have no right to see the serial numbers at the back of the oallotpapers. The counting staff is seated within the view of the PlumingOfficer. The agents of the candidate should be allowed either to standor to move about in order that they may be able to watch the counting,in addition to the seats already provided for hem. They may objet tothe validation of any vote, on the grounds prescribed in the ins'rurfWisissued to them. The ballot paper under objections issued to them. Theballot papers under objection should then be put in a separate tray intend-ed for doubtful ballot papers, so as to enable the Returning Officer totake a decision thereon after allowing opportunity to the extra countingagents seated near him. Candidates and their agents should not be allowedto handle the ballot papers. The Returning Officer in the presence of theextra counting agents of the candidates decides the validity of the doubtfulballot papers. Before a ballot paper is rejected, the Returning Officer shallallow each candidate's agent reasonable opportunity to inspect the ballotpapers. The object of giving an opportunity is to enable him to statewhether it has to be rejected or accepted. It is only thereafter that theReturning Officer shall, if he is of opinion that is invalid give his reasonand then the rejected votes are bundled with a string. After the closeof the counting of votes of each polling stations, the counting staff shouldmake the entries candidate-wise in the form prescribed for calculatingthe number of votes secured by each candidate. After consolidation ofthe results from all the counting centres the Returning Officer declares the

78 K. T. KOSALRAM V. SANTHOSHAM LVOL. XXXU

result of the election. It is now fairly settled that the precise characterof uie office ot trie Returning Officer is judicial, when o e determinesthe objections as to nomination papers and the validity of the ballot papers;and ministerial when he issues notices, arranges for the counting andfilling up of forms and despatching the same to the Returning Officerfor safe custody. When the statute specifies the duties upon an officerof election, it is necessarily implied that he shall have a free and fairopportunity to discharge such duties and he shall not be hindered orimpeded to interfered with the performance thereof. The Returning Officeris charged with the duty to examine, investigate and inform himself forthe intelligent exercise of his duties. They are judges of nothing whilethey are doing the ministerial acts. The doctrine is that the acts of theofficer of election within the scope of his authority are presumed to becorrect. The rule is based onj two grounds: (1) the presumption is infavour of the official acts of the sworn officer, and (2) the presumptionis always against the commission of fraudulent or illegal act. It wm bepresumed that the officers would endeavour honestly and fairly to dis-charge their official duties. As I said, their duties are partly ministerialand partly judicial. These officers are not in the strict sense judicial offi-cers and their duties are clothed with ^discretionary powers and they actquasi-judicially. Therefore it is necessary to allege and prove that theirofficial acts were knowingly wrongful malicious and corrupt. > The dutiesof the election officers are clearly defined by the statute particularly as tothe manner of conducting the election. It is the policy of the law toleave as little as possible to the discretion of the election officers. In thestatute, there are numerous and amended provisions framed J3r the pur-pose of anticipating the questions which may arise at the polls and themanner of their determination. These statutes are wisely framed, as toprevent uncertainty and debate as to the proper decisions on questionarising among confusion and excitement of an election. These officers arejudges of election whose province it is in the first instance to admitor exclude votes. Their action must be presumed to be correct untilit is shown to have been erroneous. The true rule, while it may notrequire exclusion of reasonable doubt, does require clear, satisfactoryproof of fraud before the leeal presumption in favour of the correctnessof the acts of the sworn officers will be nullified.

In this case, P.W. 1 has stated that he does not either suspect or expectthe officers to have any political leanings. P.W. 1 attributed motive tothe counting staff only, and R. W. 8 who was the Assistant ReturningOfficer for the Kanyakumari component, has denied that the counting staffhad any political affiliation or sympathies towards the Swatantra Party, "ndlie has also denied that there was any wrong bundling and improper rejec-tion of ballot papers. P.W.2. Kumaraeuruparan has denosed trnt be rnn-not attribute any motive to the Returning Officer and he has stated thathe does not want to be understood that the officials were partial to eitherof the candidates. He says that he cannot say that the officer brushed asidehis objections at the time of adjudication of the doubtful ballot papers.He has also said that at no time the Assistant Returning Officer refus-ed to give inspection of the doubtful ^ballot papers. He says that hehad a general feeling that in the afternoon session they were hustlingthrough. He hastened to add that he was not saying it in a spirit ofcomplaint. P.W. 3, Adaikkalam Fernando, did not suggest any motive tothe Assistant Returning Officer but said that they simply set like

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 79

parochial monarchs. Similarly, P.W. 4, Jawahar Raj, another advocatehas admitted that he cannot say that tKe Assistant Returning Officer show-ed any favouritism to the first respondent. Nor could he say thatthey manipulated while making the entries in the statutory form. But thepetitioner alone complains that there was collusion between the officersat the polling booths and that the officers were irresponsible in the pro-cess of counting and abetted with the counting staff in committing thevarious acts of irregularities. I must make it clear that it is my feelingthat these officers and Counting Staff would not have behaved in such areckless and irresponsible manner, when they knew fully well that thepetitioner is a prominent citizen of the District, a popular figure in poli-tics and a controversial figure in his own party. 1 have seenthese officers while they were in the witness box, and, observing theirdemeanour, I am convinced that these officers had discharged their dutiesas required by the law, had performed then: services according to the rulesand regulations, and had executed their work in accordance with theinstructions issued by the Government and the Returning Officer at Tirunel-veli.

But learned counsel for the petitioner complains that the statutoryform and especially Form 16 prepared by the officials is full of errorsand mistakes, and alterations and interpolations, with the result thesedocuments are unreliable and unintelligible, to know the' result of the elec-tion and the will of voters. Even assuming that these records are con-clusive, still his client is entitled to impeach these documents in thecontested election. He is, therefore, entitled to ask this Court to determinethe truth and reliability of the returns. It is the duty of this Court toascertain not as to who was returned as elected but as to who was infact elected.

The point, therefore, that arises for consideration is whether the nlleg-ed errors and mistakes and alterations and interpolations in the returns,especially in form 16 have affected the result of the election. It is neces-sary for me to state the importance of these forms which were the subjectmatter of controversy in the course of the trial of this election petition.

There are six components, as stated previously by me, in the Tiruchen-dur Parliamentary Constituency. There were about 624 polling stations.Each polling station was in charge of a Presiding Officer, wim ViaH to petunder the directions of the Returning Officer. He is responsible for theConduct of the poll in his polling station. He would be supplied withthe ballot papers equal to the number of voters allotted to his pollingstation rounded off to the next higher ten. He should maintainthe records such as the marked copies of the electoral roll, list of ten-dered ballot papers, list of challenged votes and the ballot paper account.We are here concerned with the ballot paper account, that is Form 16.At the end of the poll, the Presiding Officer should seal the ballot. n^Rrsin a separate box as required by the rules and also prepare the ballotpaper account in Form 16. Form 16 is divided into two parts. Part1 is known as ballot paper account and Part II is called the result ofcounting. Part I should be filled up by the Presiding Officer ofpapers received. Part I contains the particulars as to the ballotpaners received, ballot papers not used, ballot oaners issued tovoters, ballot papers cancelled and ballot papers used as tendered ballot

gO K. T. KOSAI.RAM V. SANTHOSHAM [VOJ.. XXXII

papers. Against the particular columns, the Presidining Officer shouldenter the serial number (from to) and the total number in the last column.The Presiding Officer despatches this form along with the other recordsand the ballot boxes of his polling station to the counting centre. At thecounting centre, the counting supervisor, after he receives the ballot papersand form 16 pertaining to his table, and after sorting and counting tohis table, and after sorting and counting of the ballot papers, fills up thee c u ^ns in F a n u , that is me columns relating to trie name of Ccij_ii-date and number of valid votes cast in favour of each candidate. Thethird column in part II is reserved for the Assistant Returning Officer tomajve entnes alter his decision on doubtful ballot papers by maKuig amark like plus 1 or plus 2 opposite the figure of the particular candidate,which would indicate that credit has been given to his account. It is theduty of the counting supervisor to check up the correctness of the totalnumber in Part I. At the end of Part I, the Presiding Officer has to puthis signature, and at the end of Part II the counting supervisor and theAssistant Returning Officer have to put their signatures.

In the filling up of Part I of Form 16, the Presiding Officers of someof the polling stations committed mistakes or errors in arriving at thetotal number of ballot papers in the last column, in respect of ballotpapers in the last column, in respect of ballot papers received, ballotpaper not used and ballot paper issued to voters. Similarly the Countingsupervisors and the Assistant Returning • Officers also made some unneces-sary entries in the Form. Learned counsel for the petitioner,through his witnesses pointed out such errors, alterations andadditions and substractions made in Part I and Part II. He pointed outthe mistakes committed by the Presiding Officers such as not enteringthe serial number of the ballot papers issued to voters, not initialling thecorrections made therein, and making two or more entries against a parti-c u b . . - o l u m n a o u n i o n m i s t a k e c o m m i t t e d b y n v n y o f t h e p r , ! n gOfficers was while entering the total number of ballot papers in the lastcolumn of Part I. While subtracting the serial number, they should addone u arrive at the correct figure of the ballot papers. This they tailed todo. Therefore, in many instances, there was no co-relation between thenumber of ballot papers issued to voters and the number of ballot papersactually found in the box. In such cases, the counting supervisor madean entry invariably in pencil—he cannot make entries in Part I notingthe correct total number. Again, in one of the counting centres, the count-ing supervisors had made an entry for aouBITal "Ballot papers noting it as'D' or 'doubtful'. This was noticed in the Nanguneri counting centre. Insome cases, the figures of doubtful votes were carried over in the figureof rejected ballot papers. In one of the polling stations in Cheramahadevi(polling station 89), the Presiding Officer had entered originally the numberof ballot papers received according to the seriaT number. Later, he hadfound out that there was a slip over in the serial number by ten even at *betime of printing. The Presiding Officer then had made a special notebefore he signed ihe form 16. In some of the polling stations, someendorsements had been made in the column intended for noting the decisionof the Assistant Returning Officer after adjudication of doubtful ballotpapers. In some of the cases, they had not intialled the plus and minusentry made by them. Learned counsel for the petitioner drew my pointedattention to these mistakes in Form 16 through, his witnesses and also inthe course of cross examination of the respondent's witnesses. To rebut

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 8l

this contention of the petitioner, when the Assistant Returning Officers were:in the witness box, learned counsel for the first respondent took painsin asking them to go through the various forms of the various pollingstations and explain or clarify the alleged corrections, alterations anderrors made by the Presiding Officers and the counting supervisors. TheseOfficers took me through the form 16 forms and explained the allegederrors and mistakes how they occurred and how they were corrected. Inmost cases, the concerned A.R.O. has initialled the corrections in Part U.Some of the Presiding Officers have omitted to fill up the serial numberseither due to inadvertence or want of time. As already stated by me.many of the Presiding Officers had made a mistake in calculating thetotal number of ballot papers in that they had forgotten to add plus oneto the total. In such cases, the counting supervisors, at the time of count-ing of the ballot papers, had noted the mistake and had correctedthe figure in part I in pencil andTTKus tallied the total number of theballot papers issued to voters and the total number of ballot papers actuallyfound in the ballot boxes. It is the duty of the counting supervisor tocheck up the figures in part I of Form 16, when the form reaches thecounting table, at the counting centre. The Assistant Returning Officersexplained to me how they added the ballot papers actually found andthe rejected ballot papeFs and found them to tally with the ballot papersissued and cancelled or tendered as the case may be. These officersthus explained the correctness of tfie'account in the various polling stations.They also convinced me that the alleged errors jind mistakes have notmaterially affected the accuracy of^the account. I t is only" on the basisof the entries made in form 16 that these officers prepared the resultsheet in Form 20 and submitted it to the Returning Officer at Tirunelveli,who, in his turn consolidated the figures and declared the result of theelection. The filling up of the form is a simple matter of arithmetic. Theduty of the court is to see whether the retura. is in due form. In determin-ing the form of return, it must consider the substance and not be too tech-nical. If there is substantiaTcompiiance~wIth"law, it is enough.

In the course of the conduct of the election, certain requirements oflaw have to be followed by the voters and officers of registration. Theserequirements may be directory or mandatory. The provisions in thestatute prescribing specific duties of these officers are directory, unlessthe acts prescribed are in their nature essential Jo the validity of the elec-tion. The provisions in the statute expressly declaring specified acts oromission fatal to the validity of election or expressly prohibiting theperformance or omission of specified acts are mandatory. The provisionsin the statute prescribing acts which are in their very nature absolutelyessential to the validity of the election are mandatory, whether the provi-sions of statute or the rules framed under the statute are directory ormandatory, the main intention of the Legislature is to secure to thevoter first a free and untrammelled vote and secondly a correct return ofthe vote. The statutory provisions which fix the date and place of theelection and the qualification of the" voters are mandatory, while thoserelating to the mode and procedure of election and to the return of theresults are formal and directory. The departure from the director rulesw:11 not vitiate the election, if there were no irregularities such as deprivinga legal voter of his vote or admitting illegal vote or causing uncertainty inthe result. It is well-settled that mere neglect to comply with the directoryrequirements of law or the performance of dutv in a mistaken manner with-out bad faith will not justify the rejection of the entire poll. Equally, it

: 8 2 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXII

is well-settled when the proceedings are so tarnished by fraudulent or neg-ligent or improper conduct on the part of the officers, then the result ofthe election is rendered unreliable and the entire return will be rejected.

In an election, the returns are prima facie evidence of the truth oftheir contents. But the presumption so raised may be rebutted by proofthat they are fraudulent and ficfitious to such an extent as to render themunreliable. Merely because some of the columns are not filled up, thealterations are not initialled and figures are corrected or interpolated wouldnot justify the rejection of the entire form, if it is otherwise proved bylegal and competent evidence. The defect may be remedied by parolproof and the documents so corrected will be competent evidence of theresult of the election. It is_ useful to quote a passage from McOrary onElections (Fourth Edition) at page 371 paragraph 503:

" . . . . p a r o l evidence is admissible not only to impeach but alsoto correct omissions in the poll books and tally sheets, and thatthese documents when so corrected are sufficient prima facieevidence of the result of the election."

The duty of the election officers is to determine the result shown by thereturns prepared by them. They cannot go behind the returns. TheElection agents are to be satisfied upon the genuineness of the returns, thatis the leturns presented to the Returning Officer are not forged or spurious.they are returns signed by proper officers. If the returns were in substantialcompliance with the requirements of the Statute, they cannot be rejectedmerely because they contain mistakes, errors and alterations withoutinitials. If the returns are intelligible and consistent with themselves andcontain every material statement required by law, then they will be thebest and the highest evidence of facts therein stated and must stand andtrue unless impeached as fraudulent. Even if the returns are inconsistentand contain ambiguous statements or deficient as to a material fact, theambiguity may be supplied by extraneous evidence. The presumption isin favour of the correctness of the record kept by the officers of election.The duly certified return is the best evidence. Mere failure by an officereither by mistake or by design to certify a return should not be allowedto nullify the election or to change its result. Even if the returns aredefective such as to contain omissions to sign at the proper place or fillup the blanks or to state the aggregate number of votes, parol evidenceis admissible to correct these errors. If the returns are informal o: in-sufficient, it is just and proper to resort to any competent evidence in orderto ascertain ths true state of the vote. While a mere irregularity, whichdoes not affect the result, will not vitiate the return, yet where the provi-sions of the election law have been entirely disregarded by officers andtheir returns utterly unworthy of" credit,~~tK? "returns must be rejected.In such a case, the returns prove nothing. But it does not mean thatthe legal votes cast at such a poll be lost. The general rule is that thereturns must stand until impeached, i.e., until shown to be worthless asevidence, so worthless that the truth cannot be deduced from it. To setaside a return is one thing and to set aside an election itself is anotherand a very different thing. A return can be set aside, if it is so taintedwith fraud and misconduct of the election officer that the truth cannot bededucted from it. But the election cannot be set aside: when it is possiblefrom other evidence to ascertain the true result. It is important to keep

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 83-

this distinction in mind. The conduct of an election officer must be suchas to destroy, the integrity of the returns and to avoid the prima faciecharacter which they ought to bear as evidence before they can be setaside. Before the returns are condemmed, there should be such telling evi-dence that the conduct of the returning ofnceTs amounted to gross andculpable negligence such as a disregard of their official duties as to rendertheir doings unintelligible and unworthy of credence and their acts entirelyunreliable for any purpose. But a feTufn cannot be assailed by vaguegeneralities. The general rule is"1f the legal votes have been cast in goodfaith by honest electors, then the duty of {he court or the tribunal is toascertain their number and give them the due effect, notwithstanding themisconduct or even fraud on the part on the election officers. Such fraudor misconduct may destroy the value of. the officers' return or may subjectthem to severe punishment; but the innocent voters should not suffer onthat account, if by any means their rights can be upheld. The questionis whether the view of the majority is fairly expressed. It is impossibleto define exactly the degree of irregularity or illegality in the conduct ofthe election officer which will render the return void. Perhaps the bestrule upon the subject is if the voice of the electors can be made to appearfrom the returns either alons of"aided by extrinsic evidence with reasonableclearness and certainty, then the return^ should stand but not otherwise.

These officers or judges of election are charged with the difficultduty of deciding promptly upon, the adjudication of votes whenever thereis a doubt. They have to exercise honest aticTfair judgment on the ques-tion decided. There should not be a general allegation of misbehaviouragainst any officer. Whatever he does in the course of his duties as anofficer in the conduct of the election cannot be called misbehaviour unlessmaliciously and wilfully performed. HisTaction does not lie for a mistakein law, if his judgment is pure and honest although erroneous. Then heis not liable for any action. Nor can the election be declared void.unless his action is unreasonable, corrupt or wilfully repressive. Hisdecision may be doubtful; but it should not be so doubtful that reasonableand intelligent men unaffected by bias or prejudice may be said to differwith his conclusion.

The burden of proof is always upon the party attacking the officialreturns. The presumption is that the officers charged by law with theduty of ascertaining and declaring the result have performed their dutyfaithfully. The action of the returning Officer is prima facie correct andmust stand until it is shown by extrinsic evidence to be illegal and unjust.The returns filled up' by the officers are considered to be prima jadetrue though they contained faults and irregularities. Where integrity isapparent, mere omission will be disregarded. Where majority of the votershave not been prevented frotn_votin2_and the election has been conductedin substantial conformity with the" election law. tHe election will not be voidnotwithstanding that there may have been mistakes or misconduct in theuse of the machinery of counting. Mere irregularity of frequent occurrencein filling up the forms or involving the performance or omission of actsnot touching upon the essential validity of the election are held to be in-Sufficient to justify the rejection of the poll unless committed in violationof the statute mandatory in form. The election law must necessarily beadministered by men who are not familiar with the construction of thestatute. But we have a right tcTexpect good faith in their acts and substan-

8 4 K- T. KOSALRAM V. SANTHOSHAM [VOL. XXXII

tial compliance with the requirements of law. Failure of the officers toperform mere ministerial duties cannot invalidate the'election. Mere neg-lect, omission, irregularity, informality or want of technicality on triepart of the returning Officer in discharging his duties in the matter of fillingup of the forms will not in the absence of fraud or misconduct render theelection void. In this connection, ii is useful to refer passage in Hais-bury's Laws of England (Third Edition—Simonds Edition), Vol. 14 atpage 149 paragraph 261:

"No parliamentary election. . . .is to be declared invalid by reasonof any act or omission by the returning officer or any otherperson in breach of his official duty in connection_with theelection or otherwise. . . .5 it appears to the tribunal havingcognisance of the question that the election was so conductedas to be substantially in accordance with law as to elections,and that trie act or omission did not affect its result."

An election ought not be held void by reason of transgressions ofthe law committed without any^cornrpt motive by the Return-ing Officer or his subordinate in the conduct of the electionif the tribunal is satisfied that the election was notwithstandingthose transgressions, an election really and in substance con-ducted under the existing election law and that the result ofthe election, was not and could not have been affected by thosetransgressions."

In the oft-quoted case of Woodward v. Sarsons (3) (1875) L. R. 10 C.P.733, not less then 294 votes were spoiled by the mistake of the presidingofficer; yet the election was not declared void. The learned Judges obser-ved:

"It is not enoughTo"Ta"y that sreat mistakes were made in carryingout the election under those laws; it is necessary to be ableto say that either wilfully or erroneously the election was notcarried out under those laws, but under some other method.But if, in the opinion of the tribunal, the election was substan-tially an election by ballot, then no mistakes or misconducthowever great^ in Jhe use of the machinery of the Ballot Act,could justify" the "tribunal in declaring the election void bythe common law of Parliament."

Tn a series of cases reported in the Election Petitions by O'Malley andHardcastle, it is stated that mere Tnistakes however great they may bewill not invalidate an election, unless it appears to the tribunal that the

• election was not conducted in~accor3ance witnthe provisions of the statuteand rules and regulations. To take a few of those cases, in The Greenockcase (4) 1 O'M&H. 257 and 250 on the question as to whether, if therehad been to any extent a contravention of the statutory provisions, that

• contravention should invalidate the election, Lord Barcaple said:

"I think that these statutory T5fovisloris are of such a kind that itwould require that something much more should be made outthan merely that they were transgressed in good faith, andwithout any serious consequences, to invalidate the election.""

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 85

In The Eastern Division of Clare Case(5) 4 O'M & H. 162. the Presid-ing Officer had by a bona fide mistake omitted to detach the voting-paperfrom the counterfoil in 195 cases but had given the voting-paper, with thecounterfoil attached, to the voter, and after receiving it back had placed itwith the counterfoil so attached, in the ballot-box. Justice O'Brien said:

"I think that these mistakes, although undoutedly large, theelection ought not to be declared invalid in consequence ofthem."

. . Justice Johnson concurred and observed that the election was a real elec-tion of the successful candidate by the majority of the electors, and wasconducted in substance according to the rules, of law, and that the admittedmistakes which had been made did not affect the result of the election, andit ought, therefore, not to be invalidated. In the Islington Division Case(6) 5 O'M. & H. 120/125 where the polling stations were kept open afterthe scheduled time and voting papers allowed to be introduced, JusticeKennady said:

"Our opinion is that an election ought not to be held void by reasonof transgressions of the law committed without any corruptmotive by the returning officer or his subordinates in the con-duct of the election, where the Court is satisfied that the elec-tion was, notwithstanding those transgressions, an electionreally and insubstance conducted under the existing election law,and that the result of the election i.e., the success of the onecandidate over the other, was not, and could not have been,affected by those transgressions."

All these cases show that, if in the opinion of the tribunal the election wassubstantially an election by ballot, then the mistakes committed in the useof the machinery of the Act could not justify the tribunal in declaring theelection void by reason of such mistakes. On a careful consideration ofthe evidence in this case, I feel that the alleged mistakes and errors commit-ted by these officers, presiding officers and counting supervisors and eventhe Assistant Returning Officers, in their returns cannot be said to haveaffected the result of the election in any way.

I now come to the most important part of the petitioner's case. Hehas alleged in his petition that at the different counting centres, the Assist-ant Returning Officers improperly rejected the valid votes cast in his favourand also improperly validated the invalid votes of the first respondent andthereby contravened the provisions of the Act, and the rules and regulationsunder the Madras Election Manual. The petitioner has, therefore, prayedthat this Court should declare the election of the first respondent void undersection 100(1) (d) (iii) and (iv) of the Representation of the People Act.

As I have stated previously, the election for the Tiruchendur Parlia-mentary Constituency took place on 18-2-1967 in about 624 polling stationsdistributed over the six assembly components of Tiruchendur, Kanyaku-mari, Radhapuram, Nanguneri, Sattankulam and Cheranmahadevi. Afterthe poll, the counting took place in the four centres namely at Tiruchendurfor Tiruchendur and Sattankulam, at Nanguneri for Nanguneri and Radha-puram, at Suchindram for Kanyakumari and at Ambasamudram for Cheran-machadevi, on the 22nd and 23rd February 1967. The petitioner hasalleged that at Tiruchendur about 100 votes bearing the official mark asainst

86 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXfr

the name of the petitioner and another faint impression of the original sealfound in some other compartment due to wrong folding of the ballot papershave been rejected; at the same time, about fifty invalid votes have beenimproperly validated for the first respondent. At Kanyakumari, about 150votes having a mark in the compartment of the petitioner and another im-pression in some other compartment due to Wrong folding of the ballotpapers have been improperly rejected, while at the same time such votes

have been validated for the first respondent. In this centre, there has beenmixing up of the ballot papers belonging to the petitioner with those cf thefirst respondent due to wrong bundling of the ballot papers. He estimatesthat 1,200 votes at the rate of two votes per 100 would have been countedfor the first respondent on account of this wrong bundling. At Nanguneri,fifty votes of the petitioner were rejected on the ground that there wasdouble impression of the official seal due to wrong folding and 100 voteson the ground of faint impression though they were valid under the ruiesand the Assistant Returning Officer had validated such votes for the firstrespondent. At Radhapuram, about 25 valid votes of the petitioner wererejected on the ground of multiple impression which was due to wrongfolding; and 200 ballot papers out of 403 doubtful ballot papers were reject-ed without any adjudication by the Assistant Returning Officer and 100votes of the petitioner on the ground of faint impression. At Cheranmaha-devi, about fifty votes of the petitioner were rejected on the ground of faintimpression and about 150 votes due to double impression. At Sattankulam,about 100 votes on the ground of faint impression and 150 votes on theground of double impression due to wrong folding were rejected. Thus,according to the petitioner, the Assistant Returning Officers have improperlyinvalidated the ballot papers of the petitioner and also improperly validatedthe invalid votes of the first respondent. They have rejected the doubtfulballot papers of the petitioner without adjudication. They did not do therandom check of the counted bundles and there was therefore mixing upof the votes of the petitioner with those of the first respondent. It is alsoalleged that the several missing votes were not traced and accounted foreither the petitioner or the first respondent. The first respondent and thefifth respondent (Returning Officer) denied the allegations of the petitioner.

On these pleadings, as many as 16 issues were framed for trial. Butat the time of the arguments, learned counsel for the petitioner submittedthat he was not pressing issues 1, 2, 9, 10, 11 and 12, and they do not,therefore, arise for my consideration. The other issues that arise for consi-deration are these:

Issue 3.—Is the petitioner entitled to restrict the scrutiny and re-count by Court to his rejected votes and to improperly validat-ed votes of the first respondent only or has the Court sotjurisdiction to order scrutiny and recount of all the votes secur-ed by the petitioner and other respondents?

Issue 4.—Were 250 votes of the petitioner improperly rejected onthe ground that the impression of the voters was faint whilethey should have been validated as indicating the intention ofthe voters clearly within the meaning of Rule 56(2) secondproviiso?

Issue 5.—Were 475 votes of the petitioner improperly rejected (onthe grounds of their bearing the mark in more than one place)

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 87

when they should have been validated within the meaning ofRule 56(2) second proviso?

Issue 6.—Were 345 votes of the returned candidate improperlyvalidated when they should have been rejected under Rule56(2)(b), (c) and (d)?

Issue 7.—Were 300 votes of the petitioner in Radhapuram and 350in Nanguneri entered as 'doubtful votes' in form 16, rejectedwithout scrutiny, when they should have been validated underRule 56(2) second proviso?

Issue 8.—Were 1250 votes of the petitioner—Improperly bundleswith those of others particularly the returned candidate in

Nanguneri, Cheranmahadevi and Kanyakumari Segment?Issue 13.—Was the result of the election materially affected by the

improper rejection of the votes of the petitioner and the im-proper validation of the votes of the first respondent within themeaning of section 100(1) (d) (iii)?

Issue 14.—Was the result of the election materially affected by non-compliance with the provisions of the Act and Rules and ordersmade under the Act as claimed?

Issue 15.—Is the petitioner entitled to be declared as the dulyelected candidate for 38, Tiruchendur Parliamentary Constitu-ency?

Issue 16 .Which party is entitled to his costs?

The petitioner summoned his extra counting agents at the various count-ing centres, and I shall now proceed to consider their evidence touchingthese issues.

Jawahar Raj (P.W. 4) an Advocate practising at Tirunelveli acted as theextra counting agent of the petitioner for Tiruchendur and Sattankulamcomponents. For the Tiruchendur and Sattankulam constituencies, therewere 129 and 106 polling stations respectively. The total number of votespolled were 72952 and 61610 respectively. In the Tiruchendur component,the petitioner secured 27,925 votes and the first respondent secured 38,264.In the Sattankulam component, the petitioner secured 29,388, whereas,the first respondent secured 26,906. At the counting centre atTiruchendur, this witness has deposed that there were 12 counting agentsfor the petitioner and that he acted as the extra counting agent. He was.seated just opposite to the Assistant Returning Officer. He has said in-his evidence that a fairly large number of votes which had been listed asdoubtful votes were rejected without adjudication, that at least one voteper booth ought to have been validated for the petitioner, and that that wasonly his estimate of the figures. This witness has admitted that he has notnoted down in any paper the particulars of the polling station where therewere improper rejection or reception of such votes. He also deposed thatThaneadurai, one of the counting agents of the petitioner at this centre com-plied a tabular statement in foolscap size paper, Ex. P. 12 in the case. ThisThaneadurai has not been examined. This Thangadurai has submitted areport, Ex. P-13, to the petitioner, wherein he has stated that the figuresin FT P-12 were noted from the black-board figures. In respect of Sat-

. tanlHim component, this witness stated that 100 votes were rejected for1 E.C.—7

8 8 K. T. KOSALRAM V. SANTHOSHAM EVOL. XXXII

the petitioner on the ground of multiple impressiQn, which was only dueto wrong folding of the ballot papers.

For the Kanyakumari component, one Devi Sun3aram (PW. 1) actedas the extra counting agent of the petitioner. There were 91 polling stationsand the total number of votes polled was 68,042. The petitioner secured32,463 votes and the first respondent secured 29,194 votes. This witnesshas deposed that besides the extra counting agents, there were 10 countingagents at the counting centre. The counting for the Kanyakumari com-ponent took place at the S.M.S. High School, Suchindram. This witnessspoke of the mixing up of votes of the petitioner with those of the first res-pondent. He said that the Assistant Returning Officer did not do anychecking work of the bundles. This witness estimates that about 1,200votes cast in favour of the petitioner got mixed up with the votes of thefirst respondent. This was based on the reports given to him by the count-ing agents. He says that on an average, one or two votes of the petitionergot mixed up in each bundle. He says that out of this 1,200 votes, thepetitioner would have got 200 votes if the A.R.O. had scrutinised the ballotpapers properly. At the same time, he concedes that he cannot give parti-culars of such improper rejection or reception of votes in any particularstation. This witness has produced a note-book Ex. P. 1, alleged to havebeen maintained by him at the time of counting. It contains eight columns.Column 1 h the serial number, column two relates to the votes of the firstrespondent, column 7 relates to invalid votes and column 8 relates to thetotal number of votes. In the margin of column 1, he has noted the exacttime of counting of the polling stations. The pencil entries in the last pageof this note-book show, according to this witness, the nature of votes im-properly rejected by the Assistant Returning Officer. He admits in thecourse of his evidence, that except himself no other counting agent main-tained any statement and that the figures were copied from the black-board.In regard to the inspection of doubtful votes, he cannot give any particularinstance of refusal by the Assistant Returning Officer. But R.W. 8 Thanga-velu who was the Assistant Returning Officer for this constituency said thathe did not come across any mixing up of the votes of the petitioner- with

those of the first respondent, that he himself verified the counting and thatthere was no allegation brought to his notice at the time of counting. Inregard to the suggestion as to political affiliation of the counting staff, hedenied that they had any such political affiliation or sympathy to the Swant-antra Party. He has stated that he knew the counting staff very well, becausehe had worked in Kanyakumari for the past two years and that the countingstaff were drafted from his office.

P.W. 2 Kumaraguruparan was the extra counting agent of the petitionerfor the Cheranmahadevi component. He is a senior practitioner of theTirunelveli Bar, a member of the Tamilnad Congress Committee and theleader of the Municipal Congress Party in Palayamcottai Municipal Council.The counting for this component took place on 22-2-1967. There were97 polling stations. The total number of votes polled was 68,805. Thepetitioner got 30,222 votes and the first respondent got 34,827 votes. Therewere ten counting agents including himself. He was sealed before theAssistant Returning Officer. He said that the Assistant Returning Officerobserved the rules and regulations in the counting of votes and that he savehim opportunity of seeing the doubtful votes. He noted some mixing upof ballot papers. But he said that in the afternoon the whole atmosphere

•E.L.R.] K. T. KOSALRAM V. SANTHOSHAM $9

was surcharged with speed and there was no random check of the bundlesby the A.R.O. and he did not bestow much attention in the evening sessionto doubtful votes. H6 estimated that out of 1,400 rejected votes about200 votes df properly scrutinised could be declared as valid votes given tothe petitioner. This witness maintained a note-book, Ex. P-7 which con-tains the serial number of the polling station and the number of votes se-cured by the petitioner and the first respondent. I consider that Kumaragu-ruparan is the best witness of the petitioner. He is a respectable person.He is very straightforward and truthful witness, and is a scrupuously care-ful in making his observations. When this witness said that the bundles wer©not checked by the A.R.O. in the evening session and when it was askedby the Court whether he attributed any motive to' the A.R.O. he flatlydenied it. When he saicl that about 200 of the rejected votes if properlyscrutnised could be declared as valid votes for the petitioner, he pointedout that it was only his estimate or opinion. He admitted that it was notpossible to specify the number in each category of rejected votes. Whenhe said that the whole counting was being hurried up in the evening sessionand that there was no opportunity to verify the doubtful ballot papers, healso hastened to add that he did not say it in a spirit of complaint. He alsostated that the A.R.O. did not brush aside his objections, and at no timerefused inspection of the doubtful papers whenever he asked for it. He hada general feeling that they hustled through counting in the afternoon session.He said that the officer did not say any harsh word, that he was so goodand kind and therefore he did_ not want to put any spoke in the wheel ofprogress of counting. ] am very much impressed with the manner inwhich he candidly spoke, and his testimony deserves credit for its disinte-restedness.

R.W. 6, the Revenue Divisional Officer, Cheranmahadevi, was the Assis-tant Returning Officer for this component. He deposed that he supervisedthe counting work, that he did the random check of the counted ballotpapers, that he checked the doubtful ballot papers according to the instruc-tions, that he gave the extra counting agents opportunity before he tookdecision on them and that there was no controversy raised by them. Healso said that the extra counting agents indicated nothing either in writingor orally or by gesture even, and that on the other hand compliments werepaid that the counting was done in an impartial way. He himself admittedthat the counting was slow in the morning and that after some time thecounting staff picked up speed and naturally they had done it quickly.

For the Radhapuram and Nanguneri component, Adaikkalam Fernando(P.W. 3) was the extra counting agent of the petitioner. There were 100polling stations in Radhapuram. The total number of votes polled was64,206. The petitioner got 31,363 votes, whereas the first respondentsecured 27,319 votes. In Nanguneri, there were 101 polling stations. Thetotal number of votes polled was 64,098. The petitioner secured 31,129and the first respondent secured 26,486. In this counting centre, the peti-tioner has secured more votes than the first respondent. This witness hasstated that the Assistant Returning Officer did not do any checking of thecounted ballot papers, that he did not examine the doubtful ballot papersbut simply passed them on to the Tahsildar to be stamped as rejected votes.He estimates that about 100 votes in Radhapuram and 350 votes in Nangu-neri could have been validated for the petitioner from among the doubtfulvotes. He said that doubtful votes came from two tables onlv, countingbooths 2, 12, 22 etc. and polling stations 13, and 14, 23 and 24, 33 and

9 0 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXII

34 etc. He also stated that under the category of faint impression aboutfifty votes. He also claims that one of the counting agents, one Natarajan.maintained a note-book, Ex. P-10, containing the serial number of thepolling booth, the name of the candidates and tne number of votes securedby each candidate, the number of invalid votes and the total number ofvotes polled in the polling station. In the column of serial number, thiswitness had made some pencil marks, circles and crosses to know the typeof rejection. The Natarajan has not been examined. But this witness hasstated that the figures made therein were all copied from the blackboard,He also deposed that nearly ten votes were missing in Radhapuram but hecould not give the particulars of the polling stations. In the course ofcross-examination, this witness said that at no time he was refused oppor-tunity to see the doubtful votes. He said that the figures which he gaveabout rejected votes were based on his rough estimate, that he could notgive any specific particulars regarding mixing up of votes and that what hesaid was based on information got from the agents. He. said that he wasdeposing only in a general way.

A. Kuppuswami (R.W. 7) who acted as the Assistant ReturningOfficer for this constituency deposed in his evidence that he checked thebundles and also examined the doubtful votes and took a decision onlyafter giving inspection to the extra counting agents. He also said that theextra counting agents made no representation or objection whenever hetook a decision. His evidence shows that he scruplously followed the rulesand instructions in the matter of validation and invalidation of ballotpapers.

In respect of Tiruchendur and Sattankulam components, the concernedAssistant Returning Officer (R.W. 5) has deposed that he examined thedoubtful papers with reference to the booklet Ex. R. 10, that he gave theextra counting agents adequate opportunity to argue either to admit orto reject and that he then decided and admitted or rejected them as thecase might be. He also deposed that whenever he validated a ballot paperin favour of a particular candidate, he put a plus entry against the figureof that candidate and put a minus entry in the rejected column. Thiswitness denied that he validated a number of votes for the first respondenteven though the mark was made by an instrument other than the officialseal. He stated that he found no serious error which would materiallyaffect the accuracy of the account.

In the course of the cross-examination of these Assistant ReturningOfficers, learned counsel for the petitioner showed them Ex. P. 11 series,Ex. P-33 series and Ex. P. 34 series and asked them whether they had comeacross such types of votes and if so whether they had validated or invalidat-ed them. These are illustrative ballot papers prepared by petitioner'slearned counsel Ex. P-ll contains three sheets. The first sheet containsan official seal and in the last compartment of the first sheet there is asmudge impression and the lines of the official seal are not visible. Simi-larly, the second sheet contains an official seal in the first compartmentand a faint impression in the last compartment. In the third sheet, thereis an official seal in the first compartment and a very faint impression of theofficial seal in the last compartment. This is an illustrative ballot paperbelonging to the category of double impression due to wrong folding, and

E.L.R.] K. T. KOSALRAM »-. SANTHOSHAM 9*

such ballot papers should not have been rejected. Similarly Ex. P-33 seriescontains five sheets. The first sheet contains two official seals in twodistinct compartments. In the second sheet, the seal is just on the margin,of the two compartments. The third sheet contains a seal on tne marginand in the fourth and fifth sheets there is a smudge in the compartment.So also, in Ex. P-34 series, there are four sheets. The first sheet containsa faint official seal, the second contains a haif portion of the official seal,the third sheet contains a faint official seal without lines and fifth containsan official seal, one full and the other a part of the official seal. Evidently,the petitioner's learned counsel adopted this method to demonstrate tothis Court that these Assistant Returning Officers might have committedmistakes in the matter oi validation or invalidation of doubtful ballot papersand that their judgment was not infallible. It is no doubt competent fora party to put almost any question in cross-examination which he mayconsider important to test the veracity of the witness and the accuracy ofhis statement. The witness may also be subject to a strict cross-examina-tion for testing the accuracy of his statement, his integrity, his bias andMs means of judging. The testing of a witness's capacity of recollectionby cross-examination is recognised as a common method. But in thepresent case, from the answers given by the Assistant Returning Officerswith reference to Ex. P-ll series, it is clear that there is scope for honestdifference of opinion. Further, it is now more than six months after thecounting, when these officers are called upon to say what they had doneat the time of counting. It will be difficult for them to recapitulate andsay how exactly they decided at that time. Moreover, Ex. P-ll seriesare only illustrative ballot papers containing double impression due towrong folding and it is difficult to say whether the second impression is asmudge of the original seal due to extra ink or not. Whi e one Assis antReturning Officer stated that the first sheet of Ex. P-ll ds valid, anotherofficer stated that it is not valid. For instance R.W. 5 stated that thefirst sheet of Ex. P-ll is not valid, while R.W. 6 has stated that it isvalid. Similarly R.W. 7 stated that the first sheet is invalid wh'Ie R.W. 8stated that it is valid. In Pipson on Evidence (Tenth Edition), thelearned author, quoting Lord Macnaghten, has observed at page 6, para-graph 11.

"The eye no doubt is the best test. Generally, but not always thecomparision is enough but in L.G.O. v. Lavel (7) (1901) 1 Ch." Thecourt remarked that a view was not to be put in the place of evidence,but was to enable the tribunal to understand the question raised and tofollow and apply the evidence."

The same author has said at page 102 paragraph 219:

"Witness may speak direetly as to what were their own feelingsmotives,_ intentions, opinions, knowledge, belief, and the like,at any given time, their testimony being based, not on inference'but consciousness, though generally little reliance can beplaced on evidence of this class."

I feel, therefore, it is rather dangerous to rely on this type of evidenceon this aspect of the case, to consider whether the Assistant Return^Officers have discharged their duties properly or not, at the tim« of the"counting of the ballot papers

92 K. T. KOSALRAM V. SANTHOSHAM [VOL. XXXIB

I have considered and discussed in detail the evidence of the extracounting agents of the petitioner and also the evidence of the AssistantReturning Officers. In this evidence I have to consider whether the peti-tioner has made out any prima facie case either for inspection and scrutinyor recount. His learned cousel has brought to my notice the latest pro-nouncement of their Lordships of the Supreme. Court in Jag jit Singh v.Kartar Singh (8) A.I.R. 1966 S.O. 773 at the rate of 783 that in a propercase the Tribunal can order the inspection of the ballot boxes and mayproceed to examine the objections raised by the parties in relation to theimproper acceptance or rejection of the voting papers. The petitioner hasgiven in his election petition certain material facts on which he relies andprays for inspection of the ballot papers as well as recount of the same.Therefore, I must consider whether the evidence oral and documentary issufficient for the purpose. Their Lordships of the Supreme Court havespecifically observed that they do not propose to lay down any hard andfast rule in the matter and that to attempt to lay down such a rule would beinexpedient and unreasonable. It is clear from the evidence that none ofthe counting agents maintained any record to note down the irregularitiesof improper rejection or reception of ballot papers at his counting centreat the time of sorting and counting of the ballot papers. In the smallbooklet called the Instructions for Counting Agents, Rule 9 says:

"You may, however, note down the serial number and name ofthe polling station with the counting of which you are notsatisfied and the grounds for such dissatisfaction."

Therefore whatever the extra counting agents say in the witness box is onlyon information given by the counting agents. It is clear that neither theextra counting agents nor the counting agents at any of the countingcentres maintained any record to note down the specific polling stationsand the nature and number of votes rejected by the counting supervisorat a particular table, though they had at every stage ample opportunityto examine the voting papers and raise objections. These extra countingagents have stated unhesitatingly that the figures they gave in regard to theimproper rejection or acceptance, in regard to the number of doubtfulvotes, or in regard to ballot papers rejected without adjudication or theparticulars as to missing votes were all based on their estimation. Theyhave also stated that the documents they produced like Ex. P-10 and P-12contained only figures copied from the blackboard.

Merely giving a concise statement in the petition that about 400 votesbearing the mark clearly in favour of the petitioner have been improperlyrejected on the ground of faint impression, that 452 ballot papers havebeen rejected on the ground that the marks were smudged, that 1,250ballot papers belonging to the petitioner were mixed up with the votesof the first respondent and that 952 doubtful votes were rejected withoutverification in the 624 polling stations of the Tiruchendur ParliamentaryConstituency would not be compliance with the provisions of Section83(1) (a) of the Act. Their Lordships of the Supreme Court haveobserved in Jagjit Singh v. Kartar Singh (8) AIR 1966 S.C. 733 at page783 that the Election Tribunal should bear in mind the material considera-tions:

(a) The petition shall contain a concise statement of the materialfacts on which the petitioner relies;

E.L.R.] K. T. KOSALRAM V. SANTHOSHAM 95

(b) Vague or general allegations that valid votes were improperlyrejected, or invalid votes were improperly accepted, wouldnot serve the purpose;

(c) It should be borne in mind that the statutory rules framed underthe Act are intended to provide adequate safeguard for theexamination of the validity or invalidity of votes and for theirproper counting;

(d) Care must be taken to see that the election petitioner doesnot get a chance to make a roving of fishing enquiry in theballot boxes so as to justify his claim that the returned candi-date's election is void;

(e) The Tribunal must consider whether the application has thenecessary facts to consider whether in the interests of justicethe ballot boxes should be inspected or not. In dealing withthis question the importance of the secrecy of the ballot paperscannot be ignored.

It is true that this Court can order inspection scrutiny or, recount, if thereis imporper reception or refusal or rejection of votes. But it is not a matterof right for the petitioner. It would be ordered only if the petitionermakes out a prima facie case giving specific instances with reference to-particular polling stations and the nature and number of ballot papers-rejected. Merely to say that many ballot papers were wrongly rejecteddoes not entitle the petitioner to a scrutiny of the ballot papers. Somesuggestion of possible error will not be sufficient ground for allowance ofan order for recount. Mere allegation that the petitioner has strongreasons for believing that material errors were made in the return of votes.the corrections of which would change the result is quite an insufficientreason for recount. So also, mere allegations that full justice can onlybe done by a recount of. the ballot papers is not sufficient to authoriserecount, where specific facts from which they may be inferred are given.Such an allegation is only a mere speculation, suspicion or conjecture orsurmise. There should be such proof sufficient at least to raise a presump-tion of mistake, irregularity or S3ud in original count. The right ofthe defeated candidate to go behind the returns will be exercised only uponsatisfactory preliminary proof of such substantial facts or well-groundedcauses as to induce a strong apprehension that fraud or mistake prejudicialto the contestent might appear upon such examination; and, in the absenceof preliminary proof, the return of the election by the sworn officer shouldstand as correct. The mere fact that ballot papers were not properlycounted, verified and examined will not be sufficient ground for recount ofthe voting papers. An application for recount of the ballot papers willnot be allowed, unless some specific mistake or fraud is pointed out inparticular box in a particular polling station. Before ordering recount,there must be charges of mistake or fraud sufficiently precise to inducethe Court to entertain the complaint. General allegation that errors arebelieved to exist is not enough to authorise the perilous and dange-rous experiment of testing the election result by the result of recount.In the absence of fraud or misconduct on the part of the officers who werepresent at the time of the counting or illegality in the manner of rejectioaor reception of votes or in the manner of ascertaining the result, recountwill not be made unless the petitioner shows a reasonable ground forsupporting that mistake was made. If there are charges agaimt any

9 4 K. T. KOSALRAM V. SANTHOSHAM tVOL. XXXH

officer, they must be specifically pointed out. In one of the earliest caseson the subject, The Stepney case (9) 4 OM & H. 34 At 50-51 JusticeDemnani observed;

"We do not accede to the argument that by merely askingior a recount in any case, upon grounds reasonable or un-reasonable, the party has a rignt to have the votes recounted."

To the same effect is the observation in Halsbury's Laws of England(Simaods Edition) Vol. 14, paragraph 559;

"A recount is not granted as of right but on evidence of goodgrounds for believing that there has been a mistake on thepart of the returning officer."

The principle is that unless there is proof of misconduct, recountcannot be ordered. In Ram Sewak v. H. K. Kidwai (10) A.I.R. 1964S.C. 1249 to 1252 their Lordship of the Supreme Court have observed:

"An order for inspection of ballot papers cannot be granted tosupport vague pieas made in the petition not supported bymaterial facts or to fish out evidence to support such pleas.The case of the petitioner must be set out with precision sup-ported by averments of material facts. To establish a caseso pleaded, an order for inspection may undoubtedly, if theinterests of justice require, be granted. But a mere allegationthat the petitioner suspects or believes that there has been animproper reception, refusal or rejection of votes will not besufficient to support an order for inspection."

It is obviously the duty of the Court to remember that election is held byballot guaranteeing the secrecy of the ballot. The ballot secured byConstitution is secret ballot. That secrecy is estimated by all authority tobe essential to the free exercise of such suffrage. The chief reason forthe generan adoption of secret ballot in this country is that it affords thevoter to preserve the secrecy of his vote and thus enable him to vote inde-pendently, fairly and freely without being overawed, intimidated or in anymanner controlled by others and protects him from any ill, or persecutionThe secrecy of the ballot is justly regarded as an important and valuablesafeguard for the protection of the voter and the humble cilizen againstinfluence which wealth and status may be supposed to exercise, Quotingthe observations of Judge Cooley in his admirable work on ConstitutionalLimitations. McOray in his book on Elections (Fourth Edition) saysat page 360 paragraph 489;

"Public policy requires that the veil of secrecy should beimpenetrable, unless the voter himself voluntarily determinesto lift it."

The above-said principle has to be particularly remembered, while dealingwith a petition for recount.

T a-n "tearly of opinion that the petitioner has nst been able to suceedin. his petition either for inspection and scrutiny or recount; for, he hasnot given specific instances of irregularities of improper rejection orimproper acceptance with reference to particular boxes in particular

Mr

E.L.R.3 K. T. KOSALKAM V. SANTHOSHAM 95

polling stations and the nature and number of such rejected or acceptedvotes. Of course I do realise that the noting of the particular _ pollingbox and particular polling station from part of 624 polling stations andthe nature and number of rejected or accepted ballot papers during the

process counting of ballot papers about 4,00,015 is a very difficult andlaborious task. But as justice Melior said in The Barmtable case (11)2 O'M & H 105.:

"I quite think the election law is a cruel and somewhat hard law."•. Baron Martin said in The Westminster case (12) 1. O'M & H. 95.

"The (election) law is a stringent law, a harsh law, a hard law. ."Besides the proverbial saying that law is an Ass. When such is the

election law, I find that the evidence adduced by the petitioner is so vague,general and uncertain that it does not enable this Court to come to a deci-sion whether there is any irregularity in the counting of the voting papersor any contravention of any of the provisions o£ the statute, or the rulesand regulations of the Election Manual. If a recount, was to be ordered,it would only be a fishing excursion or a roving enquiry or an idle examina-tion of the ballot papers already satisfactorily covered by the electionreturns. Under the circumstances, I find Issues 3 to 8 and 13 and 14against the petitioner. I find on Issue 15 that the petitioner is not entitledto be declared as the duly elected candidate for 38, Tiruchendur Parlia-mentary Constituency.

In regard to costs of this petition, the ordinary rule is that costs followthe event. But there are certain exceptions to the rule and one of themis when there is a reasonable or probable cause for presenting the petition.I am of opinion that the petitioner has had a reasonable or probable causefor instituting the enquiry. I say, therefore, nothing about costs, althoughthe petitioner has altogether failed in unseating the returned candidate bymeans of this petition.

In the result, the election petition is dismissed but without costs.

Petition Dismissed.ltd. T.VJ:

20-10-6711th December, 1967: On an Application praying that (1) The order

dated 20th October, 1967 dismissing the Election Petition without costsshould be reviewed and amended to order the payment of costs incurredby the respondent; (2) The present application should be dealt withexpeditiously.

This is an application filed by the first respondent in the election peti-tion, the returned candidate, for review of my order as to costs which haveteen disallowed by me to the first respondent, while dismissing the electionpetition. The applicant herein says that I cannot use my discretion indisallowing costs to him, especially when the election petition had beendismissed under clause (a) of Section 98 read with Section 119 of theRepresentation of the Peaple Act. The question for my consideration iswhether though under Section 119 award of costs shall be at the dlSCeTtionOf the Hieh Court, under the proviso to Section 119, the High Court hasstill got the d:scretion in the matter of costs when an election petition asdismissed under Section 98(a).

g6 K. T. KOSALRAM V. SANTHOSHAM iVOL. XXXIB

A proviso is found at the end of an Act or a section to which it appliesand it is so introduced by the word 'provided'. It is the form in which theexception has been made to or a restraint or qualification imposed on theentire clause. A proviso is a subsidiary and dependent part of the statute.It may apply to the whole of the section. The proviso may be a usefulguide in the selection of one of the two possible constructions of the words,in the enactment, or to show the scope of the latter in doubtful cases.Recently, their Lordships of the Supreme Court had occasion to considerthe scope of the proviso to a section in COMMISSIONER OF COMMER-CIAL TAXES V. R. S. JHAVER (20. S.T.C. 453), and at page 453

they have extracted the following passage in Maxwell on Interpretation ofStatutues, Eleventh Edition, at page 155;

"There is no rule that the first or enacting part is to be construed• without reference to the proviso.

"The proper course is to apply the broad general rule of construc-tion, which is that a section or enactment must be construedas a whole, each portion throwing light, if need be, on therest.

"The true principle undoubtedly is that the sound interpretation andmeaning of the statute, on a view of the enacting clause,saving clause and proviso, taken and construed together, Isto prevail."

Therefore, I feel that the High Court has still got the discretion inregard to costs, even though the election petition has been dismissed underSection 98(a). I have given my anxious consideration and I have usedmy discretion in arriving at the conclusion that though the first respondent,the returned candidate, has succeeded in the election petition, he is notentitled to his costs in the petition, and I have given reasons for notallowing him costs.

Hence this application is dismissed.Application Dismissed.

E.L.R.] SHAMSHER CHAND V. PARKASH CHAND 9T

IN THE HIGH COURT OF DELHI (HIMACHAL BENCH) AT SIMLASHAMSHER CHAND

v.PARKASH CHAND AND OTHERS

(S. N. ANDLEY, J.)

October 20 and December 6, 1967.Representation of the People Act, 1951, SS. 81(3), 83(l)(o) , 100(1)

(d)(iii), 101, 102,—Conduct of Election Rules, 1961, Rule 9 3 —Election by a narrow margin of votes—Order for inspection and re-count of votes requirements of—Allegations against Returning Officerthat he helped the Respondent ilin all possible manner" and "in variousmanners"—Whether allegations are vague—Whether sufficient groundsfor an order for inspection and recount of votes.

The petitioner, a defeated candidate, challenged the election of thefirst repondent to the Vidhan Sabha, on the grounds inter alia that theReturning Officer failed to comply with the provisions of the Act and Rulesat the time of the scrutiny of ballot papers and that there was wrongfulrejection and acceptance of votes. It was further alleged that the Return-ing Officer helped the first respondent "in all possible manner" and "invarious manners'' and as the petitioner was defeated by a narrow marginof votes, he pleaded for an inspection and recount of votes.

HELD : Dismissing the p'etition.

On the facts and as a result of count of relevant ballot papeis, the peti-tioner had failed to prove his allegations and the result of the election ofthe first respondent had not been materially affected.

The result of an election due to a narrow margin of votes is not a suffici-ent ground to order an inspection or recount of ballot paper. To enablethe Court to issue such an order two conditions must be satisfied, (1) thereshould be a prima facie case and (2) sufficient particulars of the groundswhich form the basis for the demand for an inspection and recount of votesmust be given. It is not permissible under the law to inspect the ballotpapers at large about which there are no allegations and about which noparticulars have been given in the petition.

Ram Sewak Yadav v. Hussain Kamil Kidwai and Others, AIR 1964 $.C1249; Dr. Jag jit Singh v. Giani Kartar Singh and Others, AIR 1966 S.C.733; Madhu Singh Mukh Ram v. Ram Sarqn Chand Mittal and Others,AIR. 1966 Punjab 66; Brij Sunder Sharma v. Shri Ram Dutt and others,AIR 1964, Rajasthan 99; Bhim Sen v. Gopali', 22 E.L.R. 288; referred to.

HELD further that the contentions of the petitioner that the CountingAssistants and Counting Supervisors helped the first respondent "in allpossible manner" and "in various manner" and that the Returning Officer

9 8 SHAMSHER CHAND V. PARKASH CHAND [VOL XXXII

did not comply with the rules correctly and that the petitioner or his agentswere not auowed to inspect the bailot papers at the time of counting, wereextremely vague and uiiiess particulars were given about the allegations, •the petitioner was not entitled tor an order for an inspection and «tcountof baiioc papers.

Original Miscellaneous Pe.ition No. 4 of 1967.Civil Original Petition No. 1 of 1967.A.C. Sood and Hardev Singh for the petitioner.Chhabii Das for the first respondent.

JUDGMENT

S.N. Andley. J. By this petition, the petitioner challenges the election ofParkash Chand, respondent No. 1, to the Himachal Pradesh Vidhan Sabhain the elections which were held in 1967. The constituency in respect ofwhich tins petition has been filed, is the Una assembly constituency in theUnion territory of Himachal Pradesh. The petition had been filed on March28, 1967 in the Court of the Judicial Commissioner, Himachal Pradesh andhas now come to be dealt with by this Court. The petitioner has not onlyprayed tor a declaration that the election of respondent No. 1 be declaredvoid but he has also prayed that he be declared elected.

Nomination papers to contest this seat were filed by the petitioner;Parkash Chand (respondent No. 1); Tikka Madho Sudan Sngh (respondentNo. 2); Lachman Dass (Respondent No. 3); Basant Rai (RespondentNo. 4) and one Mahan Singh. The date for the scrutiny of nominationpapers was January 21, 1967 and January 23 had been fixed as the last datefor the withdrawal of the nomination papers. Mahan Singh aforesaidwithdrew his nomination paper before the prescribed date and the electionwas contested by the Petitioner and the four respondents. The petitionerwas contesting the election as a Congress candidate. Respondent Nos. 1to 3 were independent candidates. Respondent No. 4 was a Jan S^nghcandidate.

The polling for this constituency took place on February 18, 1967According to the result declared, the parties "secured the following numberof votes:— .2

i) the petitioner 5587ii) respondent No. 1 5643

Hi) respondent No. 2 2137iv) respondent No. 3 2803v) respondent No. 4 1147

Having secured the largest number of votes, respondent No. 1 was dec-lared elected. As will be apparent from the result of polling indicatedabove, the petitioner lost by a margin of 56 votes.

The allegations upon the basis of which this petition was filed were:—(a) that the counting of votes commenced on February 22, 1967 in

the verandah of the office of Sub-divisional Officer, Una atabout 5 P.M. and continued till 12.30 A.M. on Friday 23, 1967;that the result of the election was in fact declared at 12.30

E.L.R.] SHAMSHER CHAND V. PARKASH CHAND 99

A.M. on February 23, 1967 but the Sub-Divisional Officer,who was the Returning Officer, wrongly showed it to have beendeclared before th© midnight of February 22, 1967.

(b) that 1296 votes were shown in Form 20 prescribed under theRepresentation of the People Act, 1951, hereinafter referredto as "the Act" and the Conduct of Election Rules, 1961,hereinafter referred to as "the Rules" as invalid votes.

(c) that respondent No. 1 was guilty of the corrupt practice ofbribery.

(d) that for various reasons mentioned in paragraphs 7 (a) to (7)(j) of the petition, the petitioner was entitled to inspection,scmting and recount of the ballot papers.

(e) that the Returning Officer and the Presiding Officer werepartisan and failed to comply with the provisions of the Actand the Rules in regard to the scrutiny of ballot papers.

(f) that the result of the election had been materially affected bythe worngful rejection of votes cast in favour of the petitionerand the wrongful acceptance of invalid votes cast in favourof respondent No. 1.

The petitioner, therefore, prayed that the election of respondent No. 1be declared void and he, the petitioner, be declared elected; that "thedifference of votes being a little, inspection and scrutiny of the ballot papersmay be allowed and after recounting the petitioner be declared elected" andthat respondent No. 1 be disqualified for a period of six years from contest-ing any election.

A written statement was filed by Lachman Dass, respondent No. 3, bywhich he admitted all the allegations made in the petition. RespondentsNos. 2 and 4 did not file any written statement. In the written statementfiled by respondent No. 1, the allegation in the petition against the conductof the election, the polling, the counting and the declaration of the resultwere denied, in addition, respondent No. 1 raised three preliminary objec-tions, namely (1) that the petition did not contain the attestation as requiredby sub-section (3) of section 81 of the Act and was, therefore, liableto dismissal under sub-section (1) of secion 86 of the Act; (2) that if thepetitioner had not deposited the sum of Rs. 2000/- as security for costsas provided by the Act, the petition should be dismissed under section 86*of the Act and (3) that the averments made in the election petition wereprolix and unnecessary, scandalous and defamatory, besides being mostlyargumentative and thus contravened the provisions of section 83(1) (a)of the Act.

Upon the pleadings Hardy J. framed the following issues:

(1) Whether the copy of the petition delivered to respondent No.1 does not contain the attestation as required by section81 (3) of the Representation of the Pepople Act, 1951. If

so, what is its effect?(2) Whether the security deposit made bv the petitioner is not ia

accordance with the provisions of section 80 reaH with section117 of the Representation of the People Act, 1951. If s<Vits effect?

SHAMSHER CHAND V. PARKASH CHAND [VOL. XXXII

(3) Whether respondent No. 1 is guilty of the corrupt practicesas defined in section 123 of the Representation of the PeopleAct, 1951, inasmuch as on February 12, 1967 at about 5 P.M.he went to the house of Lachman Dass, respondent No. 3,and offered him a sum of Rs. 4,000/- as a bribe to withdrawfrom the contest and support him in the election?

(4) Whether the petitioner is entitled to inspection, scrutiny andrecount of the invalid ballot papers and the bgllot papers castin favour of the petitioner and respondent No, 1 on the follow-ing grounds:—

(a) Whether the petitioner or his agents and counting super-visors were not given proper opportunity to see and objectto the counting of the ballot papers?

(b) Whether the invalid ballot papers were not kept apartby the Counting Officers for the decision of the ReturningOfficer and were not brought to the notice of the petitioneror his counting agents or Supervisors?

(c) Whether any valid votes cast in favour of the petitioner werewrongfully rejected by the Returning Officer as slated inpara 7(f) of the petition and annexure 'B' thereto?

(d) Whether any invalid votes cast in favour of respondentNo. 1 were wrongly accepted by the Returning Officer asstated in nara 7(0 of the petition and annexure 'B' thereto?

(e) Whether any of the valid votes cast in favour of the peti-tioner have been wrongly counted as the valid votes ofrespondent No. 1?

(f) Whether there was any sufficient light at the time of thecounting of the votes and if so, whether it has materiallyaffected the counting of the votes?

(g) Whether the votes cast in favour of the petitionei1 have riotbeen correctly counted?

(5) Whether the Returning Officer "&nd the Presiding Officer werepartisan as alleged by the petitioner and whether they failed tocomply with the provisions of the Act and the Rules in regardto the scrutiny and counting of ballot papers and if so whethernon-compliance with the aforesaid provisions of the Act andRules has materially affected the result of the election?

(6) Whether the result of the election as far as the returned candi-date respondent ND. 1 is concerned has been materially affectedby the wrongful rejection of the votes cast in favour of thepetitioner and the wrongful acceptance of the invalid votescast in favour of the petitioner and the wrongful acceptance ofthe invalid votes cast in favour of respondent No. i?

(7) Whether the petitioner is entitled to be declared elected inplace of respondent No. 1 under section 101 of the Representa-tion of the People Act, 1951?

(8) Relief.

E.L.R.] SHAMSHER. CHAND V. PARKASH CHAND 101

Hardy J. dealt with issues Nos. 1 and 2 by his order dated May 25, 1967.He held that there was sufficient compliance with the requirements of sec-tion 81 (3) of the Act and that the amount of security had been depositedwithin the time prescribed. He, therefore, decided both these issues infavour of the petitioner.

I may state that the counsel for the petitioner has stated at the Bar thathe is not pressing fcssue No. 3.

Between June 27, 1967 and July 4, 1967, the petitioner producedand examined six witnesses. On June 30, 1967, however, the petitionerhad filed an application (original Miscellaneous Petition No. 4 of 1967)praying for an order for "inspection by the petitioner of the ballot paperscast in the election in this constituency and after inspection of the ballotpapers by the petitioner and this Hon'ble Court may scrutinize the sameand on recounting of the votes may kindly be ordered to meet the endsof justice". Arguments were heard by Hardy J. on this application onJuly 5 to 7 in part but he could not complete the hearing of the arguments.When the matter came up before me, the petitioner contended that thisapplication should be disposed of first. The counsel for respondent No. 1opposed this prayer on the ground that all the evidence of the petitioneron issues Nos. 4 to 7, barring the statement of the petitioner himself, hadbeen recorded and it was urged that respondent No. 1 should also beallowed to lead his evidence on these issues before this application isdecided upon. The counsel for the petitioner urged that he would relyonly on the allegations in the election petition and in Original MiscellaneousPetition No. 4 of 1967 and not upon the evidence recorded and he prayedthat Original Miscellaneous Petition No. 4 of 1967 be disposed of beforefurther evidence is recorded. Thereupon, the counsel for the respondentNo. 1 agreed that this application be disposed of but he reserved libertyto rely upon the evidence which had already been recorded.

The only question, therefore, which has to be decided is: whether thepetitioner had made out a case for inspection, scrutiny and recount of theballot papers?

Original Miscellaneous Petition No. 4 of 1967 has not given any newparticulars other than those which are mentioned in paragraph 7 of theelection petition. The allegations in this paragraph of the flection petition,in so far as they are relevant for issues Nos. 4 to 7, are as follows:—

"7. That the election of Parkash Chand, respondent No. 1, fromUna constituency is invalid and void on the grounds men-tioned in the following paras:

(a)

(b) That Parkash Chand, respondent No. 1 is a teacher in theD.A.V. Higher Secondary School, Una. and have got a lotof influence and contacts with the teachers and teschrcssesworking in the various schools in the area. The PresidingOfficers, .the Polling Officers, Counting Assistants and Count-ing Supervisors were mostly persons anpointed from theteaching staff of the various schools in the area and the saidpersons were helping respondent No. 1 in all possible mannerin order t3 see that respondent No. 1 wins in the Election.

1 0 2 SHAMSHER CHAND V. PARKASH CHAND IVOL. XXXII'

Similarly the Returning Officer was also helping respondentNo. 1 in various manners. Therefore, the persons entrustedwith the conduct of the election did not conduct themselves^according to provisions of the Representation of the PeopleAct, 1951, and Conduct of Elections Rule6, 1961.

(c) That the Returning Officer in particular conduct himself in amost illegal manner in the sense that many votes of the peti-tioner which were valid votes, were wrongly rejected by theReturning Officer and similarly votes of respondent No. 1which were really invalid were accepted by him.

(d) That the process of counting was that 7 polling stations voteswere counted at one time. The ballot box or boxes pertain-ing to one polling station were put on one table. In all,there were 7 tables in the premises in relation to the countingof Assembly votes. On each table ballot box or boxes pertain-ing to one Polling Station were brought at one time with theresult that the counting of votes in respect of 7 Polling Stationsfor the Assembly constituency started at one and the sametime. On each table were appointed two counting Assistantsand one counting Supervisor by the Returning Officer. Thepietitioner or his Counting Agents or Counting Supervisorswere not given proper opportunity to watch the counting. Oneach table the counting Assistants and the Counting Supervisorwere duly bound to separate the, valid ballot papers from thealleged invalid ballot papers. It was their duty that theyshould themselves select the alleged invalid ballot papers andthe valid ballot papers. The petitioner, his Counting Agentsand Counting Supervisor as also the respondents, their Count-ing Agents and their Counting Supervisors were entitiled to pointout that a particular ballot paper was either valid or invalid affec-ting the election of the candidate. The petitioner on quite a fewoccasions himself, his Counting Agents as also his CountingSupervisor pointed out to the Government nominees entrustedwith the task of counting that they were wrongly acceptingcertain ballot papers as valid in favour of Parkash Chand.But in spite of that the Counting Assistants and the CountingSupervisors seated on different tables would not keep thatballot paper apart for the purpose of showing it to the Return-ing Officer so that the Returning Officer may finally decidewhether the paper should be accepted or not. The petitionereven comnlained to the Returning Officer in this connection butthe Retuning Officer made a laconic reply that whatever votesare doubtful would be brought to him in due course and that theReturning Officer cannot go and look to each ballotpaper separately. Any how the Counting Assistantsand the Counting Supervisors appointed bv the Governmenton each table in resnecf of each Polling Station broughtcertain number of doubtful votes to the Returning Officer forhis decision. The petitioner then pointed out to the Return-ing Officer that many votes in his favour out of fee doubtfulvotes were quite valid as they did not bear either double mark-ing or that the marking was quite clear to indicate that the-

E.L.R.] SHAMSHER CHAND V. PARKASH CHAND 103

votes had been polled in favour of the petitioner. The Return-ing Officer saw the ballot papers but would not look to theobvious and exhibited a partisan attitude and arbitrarily beganrejecting votes which had been validly polled in favour of thepetitioner on the frivolous grounds in some cases that iheballot papers bcre double marking or that there was no propermarking at all to indicate the intention or the voter in castinga particular vote or that the marking was on blank area. This,was really against the facts as they appeared from the ballotpapers tnemselves.

(e) That the Counting Assistants and Counting Supervisors weremostly persons drawn from teaching staff of the Governmentschools in the area of Una and some of them were also Pat-waris of Tehsil Una. Since respondent No. 1 is working asteacher in D.A.V. Higher Secondary School, Una and also hisbrother Shri Ved Parkash is a teacher in Government HighSchool, Saloh, therefore, respondent No. 1 had a considerableinfluence over the teaching staff of the Government Schools,in the area who were appointed as Counting Assistants andSupervisors by the Returning Officer. Moreover, the countingtook place in the verandah of the court of the sub-divisionalofficer, (Civil), Una and the said verandah was about 50feet long and about 14 feet in width. As already submittedthe counting had started at 5 p.m. and continued till 12.30a.m. on 23rd February, 1967. There were only four electricbulbs in the hall of the counting verandah and two of themwere affixed near the table of the Returning Officer, as suchthere was no sufficient light in order to observe the ballotpapers properly. Since there was no sufficient light, theReturning Officer ordered bringing of gases and the same wereactually brought in the counting verandah but there were noexperts to handle the said gases, therefore some of them hadigone off and the others were not giving proper light as they/were not being handled by an expert. Hence there was prac-tically no light wherein proper counting could be done. Inthese circumstances the staff who were out to help respondentNo. 1 committed a number of malpractices in counting. Atmany counting tables it so happened that the valid votes ofthe petitioner were being counted as the valid votes of respon-dent No. 1. It also happened that figure of votes of respon-dent No. 1 was being inflated and in the case cf the votes ofthe petitioner the number was being unnecessarily broughtdown against the facts. For instance, a bundle of 49 votes ofrespondent No. 1 was being counted as 50 votes, whereas abundle of 52 votes of the petitioner was being counted as50 votes. This was detected by the petitioner and his count-ing Agents in the case of polling station No. 3 namely Govt.Middle School, Bhadsali, Polling Station No. 10, ChalolaGovernment Primary School, Polling Station No. 18, Una S.D. High School, Polling Station No. 29, Dehlan Middle School,Polling Station No. 31, Government Primary School, Badalaand in the case of other polling stations. This was broughtto the notice of the Returning Officer, he got the correctionmade only in case of Polling Station No. 3 and the checking

1 E.C.—8

iCi SHAMSHER CHAND V. PARKASH CHAN!) [ \OL. XXXII

of votes on the other polling stations was not made even afterobjection. Thus a number of valid votes cast in favour of thepetitioner have been wrongly counted as valid votes for res-pondent No. 1, the actual number of valid votes cast in favourof the petitioner being brought down, the figure of valid votesof respondent No. 1 inflated, number of valid votes of thepetitioner rejected and a number of invalid votes of respondentNo. 1 illegally accepted. Therefore, the figure as declared bythe Returning Officer in Form 20 concerning the valid votessecured by the petitioner and secured by respondent No. 1is untrue and do not reflect the actual position of valid votesof the petitioner and that of the respondent No.l.

(f) That in addition to what has already been stated above, theother details as far as the petitioner could observe in respectof the illegalities committed by the Returning Officer os alsoby the Counting Agent and the counting Supervisors are asfollows:—

(i) That in Polling Station No. 1, Government Middle School,Ispur in all 59 votes were rejected by the Returning Offi-

cer. Out of the said 59 votes, some rejected votes have beencast in favour of the petitioner and some in favour of respon-dent No. 1, Parkash Chand. The Returning Officer did notadopt a uniform pattern for rejecting the votes of petitionerand respondent No. 1, but the pattern adopted by the .Return-ing Officer showed his partial attitude. The valid votes infavour of the petitioner were rejected on the ground citherthere was no marking on the ballot paper or was improperin the sense that the marking was on blank area betweenthe names and columns of the different candidates as provid-ed on ballot papers. The petitioner found in Polling Sta-tion No. 1 as many as 5 votes of the petitioner were ilfegaHyrejected, 2 on the ground that there was no marking. 3on the ground that the marking was in the blank area. Infact, all these votes were valid votes of the petitioner whichcould not be rejected In this soiling station 2 votes ofrespondent No. 1 which were invalid were wrongly countedin his favour. The said votes were invalid as" there wasno marking in the column of respondent No. 1. Similarlyon polling station No. 2, Badhsali Government MiddleSchool, two votes of the petitioner were illegally rejected onthe ground that there was no marking iiT favour of thepetitioner. In fact the marks were there, but the saidmarks were not so bright, the said votes could not be reject-ed in any manner. In Polling Station No. 3 GovernmentMiddle School, Bhandsali, the counting assistants did not

bring one vote of respondent No. 1 to the Returning Offi-cer in spite of the objection. In fact the said ballot" paperwas bland and was nvalid. The counting assistant countedthe said vote in favour of respondent No. 1. One validvote of the petitioner was rejected on ground of no mark,and one invalid vote of respondent No! 1 which was badfor double marking was illegally accepted. In polling sta-

iE.LJSj SHAMSHER CHAND V. PARKASH CHAND 105

tion No. 4 Salon Government Middle School in all 39 voteswere rejected by the Returning Officer, out of this two votesof the petitioner were wrongly rejected by the ReturningOfficer on the ground that there was no mark for the peti-tioner. In fact the said votes were valid votes. In pollingstation No 5 Saloh Government High School out of 39rejected votes four votes of the petitioner were wronglyrejected as the same were valid votes. Two were rejectedon the ground of no mark and two on the ground of markin blank areas. In fact the said votes were valid votes ofthe petitioner. In this polling station one vote was wronglyaccepted in favour of respondent No. 1 and the said votewas invalid for being blank. In polling station No. 6,Rainsri Government Primary School, one vote of respon-dent No. 1 was invalid for the reason that the mark wasin the blank area and one ballot paper had no mark absolute-ly. The objection of the petitioner was illegally over-ruled.In this polling station one vote of the petitioner was rejectedon the ground of multiple voting. The same was validvote of the petitioner. In Polling Station No. 7. TakkaGovernment Primary School, two votes of the petitioner werewrongly rejected on the ground that there was no markingin favour of the petitioner. In fact there were faint marksin the column of the petitioner and the same were valid votesof the petitioner. One vote of the petitioner was rejectedas mark in the blank area. In fact there was a partialmark for the petitioner. In this Polling Station one vote waswrongly counted for the respondent No. 1. In fact thisvote had no mark for respondent No. j . In this pollingstation, 2 votes were not brought before the ReturningOfficer in spite of objection by the counting supervisor. Thesaid votes were invalid as there was double marking butthe same were illegally counted in favour of respondent

No. 1. In this manner the Returning Officer continuedrejecting the valid votes of the petitioner as invalid votes andaccepting invalid votes cast in favour of respondent No. 1as valid votes and the Returning Officer in spite of repeatedprotest did not look to the obvious.

(H) The details of the votes which have been wrongly rejected andwhich have been validly cast in favour of the petitionerin each of the polling stations is marked as Annexure 'B'to this petition. This Annexure will indicate the total num-ber of votes which have been correctly and property castin favour of the petitioner and which have been wronglyrejected. This will also indicate the votes which have beenwrongly accepted in favour of respondent No. 1 althoughthey had not been properly cast in his favour in spite ofthe objection which the petitioner had taken before theReturning Officer. This Annexure also describes theinvalid votes of respondent No. 1 which were not evenbrought before the Returning Officer by the CountingSupervisors in spite of objections. As far "as petitioner andfiis Agents could know the illegality of the Returning Officer

1 0 6 SHAMSHER CHAND V. PARKASH CHAND» Evok- XXXSH

and the Counting Supervisors etc. m regaasd to the numberof votes validly cast in favour of the petitioner, hut wronglyrejected, as also number of invalid vote* illegally accepted..in favour of respondent No. 1 although these ballot papersdid not bear proper mark in favour of- respondent No, 1».the same are given in the chart. It was not possible tohave a complete accurate acounts regarding the natuie of..objections in respect of each ballot paper because of tsianywith which the counting proceeded and non-co-operativeattitude of the Returning Officer ai;d the staE working; underhdm. As far as it was practically possible the chart wasprepared.

(g) That had the Returning Officer actually applied the correctRules and had he not acted in partial manner the petitionerwould have been declared elected by the margia of about 200 •votes over respondent No. 1.

(h) That as already stated above, the Counting Assistants weretying the bundle of 50 votes after the counting. In the easeof respondent No. 1 the counting stall were exaggerating fliefigure in his favour, for instance, the bundje which had ©nty49 votes was being counted as 50 votes, whereas in the caseof the ballot papers of the petitioner sometimes a bundle of52 votes was being counted as consisting of 50 votes. In tMsmanner the number of votes in favour of Parkasfa Chand,respondent No. 1 was beng illegally inflated and number ofvotes cast in favour of the petitioner was. being illegaliybrought down.

(i) That each ballot paper had imprinted on it the number wKcfiwas on the back of the ballot paper. WhUe the ballot paperswere being brought before the Returning Officer for tfte parposeof seeing whether they should be accepted or rejected" and wMIcthe petitioner found that the Returning Officer's attitudewas unreasonable and he was wrongly rejecting the petitioner'svotes which have been validly cast in his favour and" acceptingwrongly the! votes in favour of Parkash Chand, respondentNo. 1 which have not been properly cast In his favour thepetitioner told the Returning Officer that he was misbehavingand was exhibiting a very wrong attitude and was not disrfsar??-ing his duties in an honest manner. He told the Returning Offi-cer to allow him to know the ballot number of the ballotOfficer to allow him to know the ballot number of the ballot"papers which had been wrongly rejected so far as the petitionerwas concerned and had been wrongly accepted so far as respon-dent No. 1 was concerned but the Returning Officer said ihatthis could not be allowed and that the secrecy of the ballotpaper had to be maintained. Actually these instructions fcad'already been issued by the Returning Officer to the CountingAssistants and Counting Supervisors appointed by the Gowern-ment and they did not allow any candidate or his agent toknow the number of any ballot paper. The result was tfsaTthe, petitioner was unable to know the particular" number im-printed on the back of the ballot papers in respect of wftidithe allegations have been made by the petitioner in this petition*:-

SHAMSHER CHAND V. PARKASH CHAND I°7

The petitioner in particular told the Returning Officer at thetime when the counting of ballot paper was going on that theReturning Officer was1 behaving in a highhanded manner andshould allow the petitioner to know the ballot number of the.ballot paper.

The Returning Officer did not agree to the petitioner's requestthat there was no method by which the petitioner could knowthe ballot number of the ballot papers. Actually strict instruc-tions had been issued by the Returning Officer to his staff that

no candidate or his agent would be allowed to touch any ballotpaper. Those instructions were complied with, with the resultthat no candidate present on the date of counting or any agentof theirs etc. was able to handle any ballot paper himself.The petitioner could only challenge the reasons for rejectionor acceptance before the Returning Officer without handlingthe ballot paper himself.

(j) That the counting had actually finished at about 12.30 A.M.on 23rd February, 1967 but the Returning Oflicer showed thecounting to have been finished before 12 P.M. on 22-2-1967when the petitioner found that during the counting a largenumber of illegalities have been committed and the provisionsof the Act and the Rules have not been complied with he imme-ditely sent Shri Dhani Ram son of Basant Singh of villageLaiaingi to get an application for recount typed while the saidapplication was in the process of typing, the Returning Officerstarted compiling the final result in hurry. The Petitioner hadactually submitted the application! for recount when the

.Returning Officer had not yet declared the result. Surprisinglythe Returning Officer declared the result without ordering re-count. Since it was about 12.25 A.M. on 23rd Febru-ary, 1967 when the petitioner made application therefore thepetitioner wrote 23rd Febuary, as date on its application butthe Returning Officer did not pass any order on the applicationat that time. Subsequently the petitioner was conveyed anorder saying that the application of recount was made after

- the result was declared. A copy of the application made bythe petitioner for recount before the declaration of the resultis attached as Annexure 'C to this petition and a copy of theorder of Returning Officer passed by him on that applicationand conveyed to the petitioner subsequently is attached asAnnexure 'D' to this petition^ The result was in fact declaredat about 12.30 A.M.'on 23rd of February, 1967 and it iswrong to say that the same was declared on 22nd o* February1967".

A mere reading of paragraph 7 of the petition would show that theefearge made in paragraph 3 of the preliminary objections in the written

•statement filed by the respondent No. 1 that the averments made in theelection petition are prolix, unnecessary and argumenative is not without

'substance. It is difficult to sa'y that the, petition is in conformity with clausefa> of sub-section (1) of section 83 of the Act which requires it to contain

.var concise statement of the material facts on which the petitioner relies.

SHAMSHER CHAND V. PARKASH CHAND [\>0<L. XXXIf

A further fact which may be mentioned at this stage is that an applica-tion was made by the petitioner, according to him, on February 23, 1967,to the Returning Officer stating:—

'The votes polled in the above constituency have not been correctlyand rightly counted. The staff for the counting of these votes •

have committed mistakes in counting either intentionally orunintentionally. As a matter of fact, the applicant has secured"the highest number of votes.

Under the_ circumstances it is requested that votes 'polled in thisconstituency may kindly be recounted."

A copy of this application is Annexure 'C to the petition and bears thedate 23-2-67. According to respondent No. 1 this application was notmade on February 23, 1967 before the declaration of result but was madeon Febuary 24, 1967 long after the result had been declared. The original-application was summoned and, on production, was exhibited as exhibitPW 1/1. The figure '3' in the date "23" appears to be an over writing.This figure '3' appears to have been typed out over the figure '4' which*latter figure also appear to have been rubbed out. The Returning Officerreplied to this application by his letter dated February 5, 1967 uponwhich his signature appears above the, date February 24, 1967. He has-stated inter alia as follows:—

"Under law as envisaged in Rule 63 of the Conduct of ElectionsRules, 1961 the Returning Officer is required to record in theresult sheet in Form 20, the total number of votes polled byeach candidate and announce the same. After such announce-ment has been made, a candidate or in his absence his electionagent or counting agent may apply in writting to the ReturningOfficer to recount the votes either wholly or in part stating thegrounds under which he puts such demand for recount. Thisis clear that the stage for making a demand for recount isover as soon as the result sheet is completed, announced andsigned by the Returning Officer. At this stage when the results

have been communicated to all quarters concerned it is notpossible to accede to your demand, hence your demand isrejected." " •

The Returning Officer was, therefore, of the definite opinion that theapplication for a recount had been filed after the declaration of the resultand therefore, there was no question of a recount.

The petitioner has produced Dhaiui Ram (PW. 1) to prove that thisapplication was made before the declaration of the result. He has stated:—

"The counting of votes ended at 12.30 A.M. on 23-2-67: Before thecounting was over, the petitioner had come out of the verandah,where counting was being held at about 11.30 A.M. on 22-2-67.He asked me to have an application for recounting of votestyped out. I went out and had an application typed out fromone Amar Chand and returned within about half an hour."

If this statement of the witness is to be believed the application was madebefore midnight between February 22 and 23, 1967 If that was So the

E.L.R.] SHAMSHER CHAND V. PARKASH CHAND 109

stamp on the application (Exhibit P.W. 1/1) should have borne the date22nd February and not the date of 23rd February, 1967 as it does:—

This witness has again stated in cross examination:—

"I do not know how to read English and, therefore, do not knowthe contents of the application, m e petitioner did not tellme the grounds on which he wanted the recounting of votesto be done. All that I told the typist was that an applicationfor recounting of votes should be prepared. I did not tellthe typist that the petitioner had polled large number of votes.I also did not tell the typist that there had been a mistakein the counting of votes."

This witness had stated that his daugh.er is married to the petitioner'sson. I do not find it possible to believe this witness because the groundswhic.i aij mentioned in the application regarding mistakes committed bythe counting staff and the petitioner having secured the highest number ofvotes could not have been imagined by the typist. It is farther significantthat the typist, Amarchand has not been produced as a witness by thepetitioner. 1, therefore, held that no application was made by thepetitioner for a recount before the declaration of the result and that thisapplication was really made on February 24, 1967 after the declaration ofthe result.

The principles which should guide an order for scrutiny, inspection andrecount have been stated by the Supreme Court in Ram Sewak Yadav'V. Hussain Karnil Kidwai and others (1) . The Supreme Court has saidthat an order for inspection is not to be granted as a matter of course butthe court would be justified in granting 'an order for inspection Providedtwo conditions are fulfilled (i) that the petition for setting aside anelection contains an adequate statement of the material facts on whichthe petitioner relies in support of his case; and (ii) the Tribunal is prim afacie satisfied that in order to decide the dispute and to do completejustice between the parties inspection of the ballot papers is necessary, ithas further been observed that an order for inspection of ballot paperscannot be granted to support vague pleas made in the petition not support-ed by material facts or to fish out evidence to support such pleas and thatthe case of the petitioner must" be set out with precision supported byaverments of material facts.

The above case was referred to in the subsequent decision of theSupreme Court reported in Dr. Jagjit Singh v. Gaini Kartar Singh and others(2) where it has been observed:

"Vague or general allegations that valid votes were improperlyrejected, or invalid votes were improperly accepted would notserve the purpose which S. 83 (1) (a) has m mind. Anapplication made for the inspection of ballot boxes must givematerial facts which would enable the Tribunal to considerwhether in the interest of justice, the ballot boxes should be

inspected or not. In dealing with this question, the im-portance of the secrecy of the ballot papers cannot be ignored.

(i)A.I.R.i964 S.C. 124?.(2) A.IR. 1966 S.C. 77?.

H O SHAMSHER CHAND V. PARKASH CHAND [VOL. XXXII

and it is always to be borne in mind that the statutory rulesfarmed under the Act are intended to provide adequate safe-guard for the examination of the validity or invalidity ofvotes and for their proper counting. It may be that in somecases, the ends of justice would make it necessary for the Tri-bunal to allow a party to inspect the ballot boxes and consi-der his objections about the improper acceptance or improperrejection of votes tendered by voters at any given election;but in considering the requirements of justice care must betaken to see that election petitioners do not get a chance tomake a roving or fishing enquiry in the ballot boxes so as tojustify their claim that the returned candidate's election isvoid. We do not propose to lay down any hard and fast rulein this matter; indeed, to attempt to lay down such a rule wouldbe inexpedient and unreasonable."

The above observations had been made in an election petition where itliad been averred:—

"That a very large number of votes purported to have been cast infavour of the appellant had been improperly rejected, and thathas materially affected the result of the election; and he addedthat there was also an allegation that a large number of voteswhich were invalid had been improperly accepted in favourof respondent No. 1 which has also materially affected theresult of the election. This application further sets out theappellants version that the Returning Officer disclosed a parti-san attitude and the counting and examination of votes wasdone in a very irregular manner. The appellant pleaded thathe had led some evidence regarding the misconduct of theReturning Officer at the time of the counting; and so, a prayerwas made that the ballot papers may be allowed to be inspectedin order to enable the appellant to establish his case.both regarding improper rejection and reception of ballot papersand the non-compliance with the rules under the Act on thepart of the Returning Officer which have materially affectedthe result of the election in so far as respondent No. 1 isconcerned."

The petitioner has gone to the extent of contending that in view of thenarrow margin of votes, be is entitled to an order for inspection and recount.He has relied on the case reported in Madhu Singh Mukh Ram v. RamSaran Chand Mittal and others, (8). This was a case where both the rivalcandidates pressed for a recount before the Returning Officer and the Re-turning Officer ordered a recount. The matter went in appeal to the HighCourt and it was observed:

"When both the rival candidates were pressing for a recount evenif the application of the returned candidate did not contain anydetails or particulars which could have been given in support

of the grounds which had been raised in the application itwas not open to the, other candidate to turn roundlater and , complain about an order having been

C3) A.T.R.1966 Punjab 66.

.L.R.] SHAMSHER CHAND V. PARKASH CHAND HI

made for a partial rechecking and then of a total recount whenirregularities were discovered which satisfied the ReturningOfficer that it was a fit. case for ordering a recount. Where themargin of votes between the rival candidate was narrow andthe Returning Officer could well have considered it necessaryto order the recount in the interest of fair election, the orderpassed by the Returning Officer in the case could not be re-garded as arbitrary or unjustified and it was for the ReturningOfficer to exercise discretion in the light of all the circumstan-ces and the Appeal Court would be most reluctant to interferewith the exercise of that discretion in the absence of any strongand cogent reasons justifying interference.

The observations of the learned Judge who decided this case is prefacedby the condition that there should be good grounds to belive that the countingof ballot papers was not an order.

The next case relied upon is reported in Brij Sunder Sharva v. Shri RamDutta and others (4) where the allegation was that aboutlOO ballot papersmarked in favour of the respondent were improperly rejected by the Return-ing Officer that some invalid ballot papers were counted for the petitionerand that some ballot papers marked for the respondent were counted forthe petitioner, relying upon a decision of the Supreme Court reported inBhim Sen v. Gopali (3) , the learned Judges held that these allegations werenot vague. About Bhim Sen'si case, the Supreme Court has observed inRam Sewak Yadav v. Hussain Kamil Kidwai and othersC), ' —

"We do not think that Bhim Sen's case (5) , lays down any generalprinciple that a party is entitled without making allegations ofmaterial facts in support of his plea to set aside an election,to claim an order for inspection of the ballot papers and seekto supply the lacuna in has petition by showing that if all thevotes are scrutinized again by the Tribunal it may appear thatthere had been improper reception, refusal or rejection ofvotes at the time of counting."

I am of the view that a narrow margin of votes alone is not sufficientground for a Court to order an inspection or recount. It may or may notbe a valid consideration for the Returning Officer provided an applicationor recount can be made, two conditions must be satisfied namely, (1) there

i s made before the declaration of the result. Before an order for inspectionshould be a prima facie case and (2) sufficient particulars of the groundswhich form the basis for the demand for inspection and recount must begiven.

The petitioner's contention is that he has given sufficient particulars notonly in paragraph 7 of tne election petition but also in Annexure 'B' there-to. The particulars in Annexure 'B' comprise of the name of the pollingstation; the number of rejected votes; the number of votes wrongly acceptedin favour of respondent No. 1 and the petitioner's objections thereto; thenumber of valid votes cast in favour of the petitioner but illegaly rejectedand the grounds of rejection and the number of invalid votes of respondentno. 1 which were not brought before the Returning Officer in spite of therequest of the petitioner.

(') A.I.R. 1964 Rajasthan 99.(5) 22ELR 288.(1) AIP 1964 SG 1249.

1 1 2 SHAMSHER CHAND V. PARKASH CHAND [VOL. XXX1P

Coming to the allegations made in paragraph 7 of the petition, the firstallegation in clause (b) is that, being a teacher in the D.A.V. Higher Second-ary School, Una, the respondent No. 1 has a lot of influence and contact withthe teachers who were also counting assistants and supervisors and the-latter helped him "in all possible manner" and "in various manners." Thi3f.in my opinion, is an extremely vague allegation in the absence of any parti-cular as the manner in which respondent No. 1 was being helped. Thenames of the teachers who were counting assistants and counting supervi-sors are also not given. In fact Basant Rai (P.W. 2) has stated only thatmost of the polling officers belonged to the Education Department andthat a brother of respondent No. 1 was also one such polling officer. Thiswitness has not stated that the counting assistants or counting supervisorswere school teachers or that the brother of respondent No. 1 was one of thecounting assistants.

Clause (c) of paragraph 7 merely alleges that the Returning Officer con-ducted himself in a most illegal manner in rejecting valid votes of the peti-tioner and in accepting invalid votes of respondent No. 1. This allegationis also vague and without any particulars.

Clause (d) of paragraph 7 alleges that the petitioner or his counting',assistants were not given proper opportunity to watch the counting andthat the counting assistants and the counting supervisors did not keep theballot papers objected to separately for the purpose of showing them to theReturning Officer. These allegations are also vague. The petitioner hasproduced Basant Rai (P.W. 2) who was one of the candidates and isrespondent No. 4 in this petition. He has stated that he was present at thetime of counting upto 9 p.m. and upto that time, the petitioner had objectedto one ballot paper which the counting officer was inclined to invalidate buthe says that this particular ballot paper had double marking on it. It is.therefore, quite clear from the evidence of this witness that the allegationsmade in clause (d) of paragraph 7 of the petition have no basis. Thecomplaint of the petitioner that proper opportunity for scrutinzing the ballotpapers was not afforded is again without foundation, Lachman Das(P.W. 3)has stated that neither he nor any of counting agents objectedto the method of counting or to the lack of accommodation or to a lack ofopportunity for properly scrutinising the ballot papers. He has furtherstated that the counting agents of each of the candidates were present oneach of the tables.

Clause (e) of paragraph 7 has complained of lack of light in the place-where counting was going on. This allegation is disproved by the statement'of Kushal Singh (P.W. 4) who has stated that there was sufficient light or,the tables on which votes were being counted and it was quite adequate frrthose who v/ere working on those tables. He has further stated that roobjection was raised by any one about the inadequacy of lighting arrange-ments. This clause also complains about miscounting in polling stationsNos. 3, 10, 18, 29 and 31. This allegation is again not supported by anyparticulars. Not only that, it is not even supported by the witnesses whohave been produced by the petitioner and who have deposed, as alreadystated, that none of the counting agents objected to the method of counting.

Clause (g) complains of non-application by the Returning Officer of thecorrect rules. The rules which were not applied correctly are not specified',

E.L.R.! SHAMSHER CHAND V. PARKASH CHAND Hyi

nor has the petitioner specified the circumstances or facts to or in whichthe Returning Officer did not apply the rules correctly. The allegations arenothing but vagu?.

Clause (h) complains of wrong bufiaTTri'g and counting of votes. No.particulars are furnished of the bundles the ballot papers in which werewrongly counted to inflate the number of votes in favour of respondentNo. 1. These allegations are also vague and are not supported by anyparticulars.

Clause (i) complains that the number at the back of the ballot paperswas not allowed to be inspected and none of the candidates or countingagents were permitted to handle the ballot papers. The petitioner has notbeen able to satisfy me of his right to inspect the number at the back oithe ballot paper, nor of his right to handle the ballot paper. All that acandidate or his agent is entitled to is to scrutinise the ballot paper but suchscrutiny must be in a manner that does not violate the secrecy of the ballot.Not only that, but none of the witnesses produced by the petitioner has sup-ported these allegations which appear to me to be nothing but an after-thought. No such allegation was made even in the application which wasmade by the petitioner to the Returning Officer for a recount. Such a com-plaint is, to my mind, an invalid complaint and would be irrelevant for thepurpose of the petitioner's claim for a recount.

Clause (j) relates to the making of the application for a recount whichI have already dealt with.

In my view, the petitioner has not made out any case for a recount andI reject that prayer.

As to the second prayer for inspection of the ballot papers which, ac-cording to the petitioner, have been illegally rejected, the allegations aremade in clause (f) of paragraph 7 of the petition. The particulars ofillegal rejection of votes cast in favour of the petitioner are given in annex-ure 'B'. As already stated, annexure 'B' contains the names of the pollingstations; the number of rejected votes; the number of votes wrongly ac-cepted in favour respondent No. 1 and the objection raised by the petitionerto the said ballot papers; the number of valid votes cast in favour of thepetitioner but rejected together with the grounds on which they were rejectedand the number of invalid votes of respondent No. 1 which were not broughtbefore the Returning Officer by the counting assistants in spite of the peti-tioner's objection. Read with the particulars given in annexure 'B' theallegations made in clauss (f) of paragraph 7 of the petition appear to bssupported by particulars. Keeping in view the allegations of the petitionerthat the Returning Officer did not permit inspection of the serial number ofthe ballot paper, it would not be possible for the petitioner to give anymore particulars with reference to the votes which, according to him, wereillegally rejected. It is Possible that the allegations and particulars madeultimately be found to be wrong or even false. But, I think, the petitionerhas made out a prima facie case for inspection of the rejected ballotpapers and, in my opinion, the petitioner is °n-itled to inspection and scru-tiny of the rejected ballot papers. My view has been influenced a little bythe fact that in this election where the total number of votes polled wereabout 17,000, the number of rejected votes is as large as about 1,300.

114 SHAMSHER CHAND V. PARKASH CHAND [VOL, XXXII

In the result, he petitioner's prayers for inspection and scrutiny of allthe ballot papers and for a recount are rejected. I, however, allow thepetitioner's prayer for inspection and scrutiny of the rejected ballot papers.

This inspection and scrutiny will take place in the office of the DeputyRegistrar of this Court from October 30, 1967 between 2 p.m. and 4 p.m.on every working day until it is concluded. After inspection and scrutinyis completed, the Deputy Registrar will make a separate bundle of those ofthe ballot papers which are required by the petitioner to be shown to theCourt at the time of the hearing of this petition and this bundle will besealed with the seal of the Court. The other ballot papers will be replacedin the bundle of rejected ballot papers from which they have been takenout and bundle will also be sealed with the seal of the Court. The DeputyRegistrar will take care that the parties or their counsel only see the faceof the ballot papers and not its back nor do they handle the ballot papers.Respondent No. 1 and his counsel will be at liberty ta be present duringthis inspection. '

During the arguments in this case, it was stated by Mr. A. O. Slid,counsel for the petitioner, that if inspection or scrutiny is allowed he willonly be producing the petitioner as the last witness. The, case will, there-fore be listed for the petitioner's statement on November 8, 1967. Evidenceon behalf of respondent No. 1 will be recorded from November 9, 1967onwards day to day.

The costs of Original Miscellaneous Petition No. 4 of 1967 will abidethe event.

December 6, 1967. It is not necessary to repeat the facts of this case.The facts which have led up to the filing of this petition; the pleadingsof the parties; the issues and the proceedings leading up to my order datedOctober 20, 1967, have been mentioned in detail in my aforesaid order.

I may only restate that pursuant to the order dated October 20, 1967,the petitioner took inspection of the rejected ballot papers and selected 73out of them for examination by the Court. When these selected ballotpapers were tendered for examination by the Court, Mr. Hardev Singh,learned counsel for the petitioner, contended that he should not be confinedto the 46 rejected ballot papers whose particulars have been given in Anne-xure 'B' to the petition, but that he should be at liberty to show all the 73ballot papers selected by the petitioner out of the 1296 rejected ballot papers.This prayer was rejected by me by my order dated December 4, 1967.Thereafter, examination of the ballot papers by the Court was confined toonly those ballot papers whose particulars are given in Annexure 'B' to thepetition and which were rejected for the reasons mentioned in column 4of Annexure 'B' proceeding on that "Tooting, only 12 ballot papers wereexhibited as Exhibits P. 1 to P. 12 and the remaining ballot papers weremarked A. 1 to A. 61 for the purposes of identification. The result of theexamination was that three out of the 12 ballot papers exhibited were heldby me to have been illegally rejected.

Even after this, Mr. Hardev Singh wanted on opportunity to address, theCourt on the question whether he was not entitled to show all the 73 selectedballot papers for examination by the Court in order to prove that they hadbeen illegally rejected or illegally accepted in favour of the respondent. Hisargument is that the order made by me" on October 20, 1967, was notan order strictly within the terms of rule 15 of Order 11 of the Code of

E.L.R.] SHAMSHER CHAND V. PARKASH CHAND 115'-

Civil Procedure; that it was an order in the exercise of powerswhich this Court has under section 100 (1) (d) (iii) 101 and 102of the Representation of the People Act, 1951, and rule 93 of the Conductof Election Rules, 1961. He further argued that it was a discretionaryorder and that there is nothing in order to indicate that the examinationby the Court will be confined to only those ballot papers selected out ofthe rejected ballot papers whose particulars have been given in annexure 'B 'but to all such selected ballot papers.

I have already dealt with this aspect of the matter and particularly to •the interpretation of my order dated October 20, 1967, in my order datedDecember 4, 1967, and nothing has been urged before me to enable me tochange my opinion.

Ultimately it is a question if interpretation of the order dated October20, 1967. The order proceeds on the basis that the petitioner was heldentitled to inspection because he had furnished particulars within the ruleas has been laid down in the two decisions of the Supreme Court reportedin Ram Sewak Yadev v. Hussain Kamil and others ( ) and Dr. Jagjit Singhv. Giant Kartar Singh and others ( 2 ) . Necessarily, therefore, inspection wasallowed because of those particulars. The particulars were only with res-

pect to 46 rejected votes and contained, inter alia the reasons for the re-jection. If the argument of the counsel for the petitioner were to be accep-ted, it would amount to his taking advantage of the order of inspectionwithout having given particulars. In my opinion that cannot be done.

The argument on behalf of the petitioner would amount to this. Ifparticulars are given in respect of the illegal rejection or illegal acceptanceof one ballot paper, the petitioner asking for inspection would be entitledto an inspection at large. N,3t only that, he will be entitled to show that itwas not a case of the illegal acceptance or illegal rejection of one ballot paper -but of more than one ballot paper. That is a result which, in my view,cannot be gathered from the above cited decisions of the Supreme Court.

As has been mentioned in the order dated October 20, 1967, themargin of votes by which the respondent was declared elected was 56 votes.If the three votes which according to me were illegally rejected are takeninto consideration, the margin would be reduced to 53 votes and the resultof the election will not be affected in so far as the, respondent, the returnedcandidate, is concerned.

The result is that the petition is dismissed. The petitioner shall payrespondent's costs which are assessed at Rs. 1000/-. This amount maybe paid to the respondent on his application from out of the security deposi-ted and the> balance of the security amount be refunded to the petitioner.The Registrar should send an intimation of these orders to the persons andauthorities mentioned in section 103 of the Representation of the PeopleAct, 1951 and should comply with these instructions in all respects.

Petition Dismissed. . .

(1) A.I.R. 1961 S C I2J9.(2) A.I.R. 1166 S C. 773.

SURIYA PRASAD V, ATAMDAS [VOL. XXXII

-IN THE HIGH COURT OF MADHYA PRADESH, INDORJi

SURIYA PRASADvs.

ATAMDAS(M. A. RAZZAQUE, J)

October 23, 1967

Representation of the People Act, 1951, SS. 7(b) 9A, SOA, 98,100(1) (a)—Respondents contract with the Government, Department ofArchaeology on 25th February, 1954—Respondent's election in 1957 toParliament held void as a contract with Government subsisted on relevantdates—Respondent again elected to Parliament in 1967—Election Petitionalleging that the same contract continued to subsist on relevant dates in1967 election—whether the previous decision of the Tribunal on 1957election operates as 'Res-judicata' against the Respondent in 1967 election-conditions as to when a contract ceases to subsist.

The petitioner, a defeated candidate, challenged the election of therespondent, from a Parliamentary Constituency alleging that the respondententered into a contract with the Department of Archaeology for repairinga fort, on 25th February, 1954, and that the contract continued to subsiston relevant dates and therefore he suffered disqualification under section9 A of the Act. It was further alleged that the respondent's election troma parliarnen.ary constituency in the 1957 elections was held void on accountof the subsistence of the same contract with the Government on the rele-vent dates and as the same contract continued to subsist on the relevantdate during the 1967 election, order of the Court in regard to the 1957elections operated as Res Judicata, so far as the respondent's election in1967 was concerned. The respondent denied the allegations on the groundthat the original contract of 1954 was completed by him in December,1956. He further contended that the Government committed breach ofthe, contract when the Delhi office of the Department wrote to its Bhopaloffice on 23rd July, 1958 to the effect that "the contractor should be toldcategorically that he is not to proceed with the work" and therefore thecontract in question was not subsisting on the relevant date; he did nottherefore suffer from the disqualification under section 9A of the Act.

HELD: Allowing the petition,The recession of a contract must be pleaded definitely, clearly, in

unequivocal terms. The party relying on recession must expressly pleadthe manner in which and the date on which one party repudiated thecontract, the date and the manner when and in which such repudiationwas communicated to the other party; whether the other party acceptedsuch repudiation and if so when and in what manner; and it is then thatthe other party is usually said to have rescinded the contract.

It was further held on the facts that the respondent had not fully per-formed his part of the contract in question nor had he accepted the allegedrepudiation as breach of contract and rescinded the said contract before

' t he relevant dates. As the contract subsisted on the relevant dates in 1967

JE.L.R.] SURIYA PRASAD V. ATAMDAS

-the respondent had suffered disqualification as contemplated by section9A read with section 7(b) of the Act and therefore his election was voidunder section 98 read with section 100(1) (a) of the Act.

Chaturbhuj Vithalds Jasani v. Moreshwar Parasram and others, A.I.R.1954 S.C. 236; Lalitashwar Prasad Shai v. Batashwar Prasad and others,AJR 1966 S.C. 583 Gaurishankar Shastri v. Mayadhardas, 1959; J.L.J.). 10referred to.

HELD also that as a result of the amendment of the Act inl966 underthe provisions of section 9A and 7(b) of the Act, the findings reachedin the previous election petition in connection with the 1957 elections wouldnot operate as res-judicata in this case relating to 1967 election, so faras the respondent was concerned.

Election Petition No. 43 of 1967.G, L. Ozha for the applicant.A. P. Mishra and K. L. Goyal for the respondent.

JUDGMENT . , . .

RAZZAQUE, J.—By this election petition preferred under section 80Aread with section 100 of the Representation of the People Act, 1951 asduly amended up-to-date (hereinafter called the Act) by the petitioner ShriSuriyaprasad of Gwalior, a defeated Congress-candidate, the election ofthe respondent Shri Atamdas of Lashkar, Gwalior. a successful indepen-dent candidate from the Morena Reserved Lok Sabha Constituency No. 1of the State of Madhya Pradesh, has been challenged. The respondentwas declared elected on 23rd February, 1967 from the said constituencyand the main question involved in the case is whether on the date of hiselection, the respondent was not qualified or was disqualified to be chosento fill the said seat under section 9A read with section 7(b) of the Actbecause of a Government contract said to be subsisting between him andthe Central Government on the date of his election.

2. The admitted facts are that the petitioner and the respondent alongwith five others (and who have not been im'pleaded as co-respondents inthis petition because the only prayer is to declare the respondent's electionto be void) were the contesting candidates from the Morena ReservedLck Sabha Constituency No. 1 of the State of Madhya Pradesh. Duringthe course of the argument, it was admitted by both the parties that thelast date for filing the nomination paper was 19th January, 1967, Therespondent secured 1,18,167 votes and next to him the petitioner receivedabout 38,000 votes and accordingly, the Returning Officer announced theresult on 23rd February, 1967 at Morena declaring the respondent asreturned candidate.

3. The further admitted facts are that the respondent, in the coursecf his trade or business entered into a contract on 25th February, 1954 forthe "repairing work of Ratnawali Burj Raisen Fort", with the Departmentcf Archaeology, Government of India at Bhopal. The contract was forRs. 37,012 and the work was to be executed and completed within threemonths from 25th February, 1954 vide (Ex. P. 2 ) , (P. 4-A) and (P. 4B).This contract was the subject matter of the previous election petition

?Nc. 433 of 1957 and in that petition, the present petitioner as well as the

* l 8 SURIYA PRASAD V. ATAMDAS [VOL. XXXIl

respondent along with others were parties. That petition was decided bythe Election Tribunal, Gwalior on 27th October, 1958 and the TribunaLthere had held that on the date of the scrutiny of the nomination papersin the 1957 election, the contract was subsisting between the respondentand the Government of India and, therefore, the respondent suffered from,the disqualification vide Ex. P.l l . The matter went up in appeal beforethe High Court of Madhya Pradesh as First Appeal No. 133 of 1958decided on 13th July, 1959 and in that appeal, the above finding of theTribunal was confirmed and it was also held that there was improperacceptance of the nomination paper of the respondent.

4. The petitioner's case is that even now there still subsists the saidcontract, namely, "repairing work of Ratnawali Burj Raisen Fort" entered.into by the respondent on 25th February, 1954 with the Central Govern-ment for the execution of the said work and, therefore, he suffered fromthe said disqualification under section 9A of the Act and hence he wasnot fit to be chosen to fill the parliamentary seat from the Constituencyin question. It is further alleged that the findings of the Election Tribunalin the previous election petition No. 433 of 1957 decided on 27th October,1958 to the effect that there was such a subsisting contract; that the res-pondent suffered from the disqualification and that there was improperacceptance of the nomination paper of the respondent and confirmed bythe High Court in First Appeal No. 133 of 1958, operate as Non judicataagainst the respondent in this case. It was also alleged that the respondent'snomination paper was improperly accepted and the result of the election,in so far as, it concerns the returned candidate has been materially effectedby such improper acceptance. Accordingly it was prayed that the electionof the returned candidate i.e. respondent should be declared to be voidunder section 100 of the Act.

5. The respondent denied that the said contract between him and theCentral Government subsisted either on the date of the scrutiny of thenomination paper or the date of his election or that it subsists at present.Accordingly, he denied that he suffered any disqualification under section9A of the Act or that he was not fit to be chosen to fill the, said parliamen-tary seat. He also denied that the findings of the Election Tribunal in theprevious election petition and confirmed by the High Court in appeal inconnection with 1957-election operate as res judicata in 1967-election i.e.the election in question. He has further denied that his nomination paperwas improperly accepted or that the sanie has materially affected the resultof the election. He assailed the petition as barred by time. Accordingly.,he prayed that the election petition be dismissed.

6. On these pleadings of the parties, the following issues were framed"and my findings thereon are as under:—

Issues Findings

(i) (a) Whether there still subsists a contract (re-pairing work of Ratnawali Burj Fort),Entered into by the respondent on 25-2-1954 Ye?,in the course of his trade and business w'ththe Central Government for the executionof works undertaken by that Government asalleged by the petitioner ?

E.L.R.] SURIYA PRASAD V. ATAMDAS

Issues

119

Findings

(b) Whether on this account he suffers dis-qualification under section 9A of the Repre-sentation of the People Act, 1951 and whethertherefore, he was not qualified on the date of Yesthe scrutiny of the nomination papers for ; Not qualified,beirg chosen to fill the Parliamentary seatin question as alleged by the petitioner ?

(c) Whether the respondent's nominationpaper was improperly accepted as alleged ? Yes

(d) Whether the result of the election in so faras it concerns the returned candidate (res-ponder.t) has been materially affected by Election void,the improper acceptance of the nominationpaper as alleged ?

(2) Whether the findings of the Election Tribu-nal in Election Pe'idon No. 433 of 1957decided on 27-10-1958 in connection, withthe 1957 election, to the effect that there was Nosuch a contract that the respondent sufferedfrom the disqualification that and there wasimproper acceptance of the nomination paperof the responded.: and confirmed by the•High Court i 1 Firs: Appsal No. 133 of1958 decided o-i 13-7-1959 operate asres \udicata in this case relating tq 1967elec ioi as allege! by the p3:i:ioher ?

(3) Whether the pe'iiioo. is barred by timeas alleged by the respondent ? • No

(4) Should the election of the respondent be Yesdeclared to be void?

C5) Relief ? More Petition allowed and election declared void.

Reasons for the findings •

7. Issues 1 (a) and (b):

These are the main important issues in this case. The petitioner'scase, is that the Government contract dated 25th February, 1954 enteredinto by the respondent with the Central Government for the repairing workof the "Ratnawali Burj Raisen Fort" still subsisted on the date of thiselection petition and, therefore, the respondent was disqualified under1 E.C.—9

1 2 0 SURIYA PRASAD V. ATAMDAS [VOL. XXX1E

section 9A of the Act for being chosen as a member of the Lok Sabha fromthe constituency in question. 'Disqualified' as defined in section 7(b)

of this Act means disqualified for being chosen as, and for being, a memberof either House of Parliament or of the Legislative Assembly or LegislativeCouncil of a State. Section 9A says that a person shall be disqualifiedif, and for so long as, there subsists a contract entered into by him in thecourse of his trade or business with the appropriate Government for thesupply of goods to, or for the execution of any works undertaken by, thatGovernment. Section 100(1) (a) of the Act provides that subject to theprovisions of sub-section (2), if the High Court is of the opinion thaton the date of his election a returned candidate was not qualified, or wasdisqualified, to be chosen to fill the seat under the Constitution oi this Actor the Government of Union Territories Act, 1963, the High Court shalldeclare the election of the returned candidate to be void.

8. It is not disputed that the respondent was an approved contractorat the relevant time, i.e. 1954 being on the approved list of contractorsmaintained by the Government and that the contract in question was enteredinto by him in the course of his trade or business. There is also no disputethat the Central Government in the Archaeological Department was res-ponsible for the execution of the repairing works in question undertakenby it and, therefore, it was the appropriate Government. This Governmenthas its Central Circle at Bhopal and the Raisen Fort of which the repairsin question were to be carried out is situated in the territory of the erst-while State of Bhopal There is also no dispute about the proper form inwhich the contract in question was entered. Thus the parties are agreedon the two important conditions of Section 9A of the Act, namely that;he respondent entered into the contract in question in the course of histrade or business with the appropriate Government for the repairing worksin question undertaken by that Government. So the only question thatnow arises for our consideration is whether this contract subsisted on 23rdFebruary, 1967 when the respondent was declared elected to the Parlia-mentary seat from the Morena Reserved Lok Sabha Constituency No. I.

9. In this case, parties have examined one witness each and fiied cer-tain documents from the Government file relating to the repairing workof the "Ratnawali Burj Raisen Fort" i.e. the contract in question insupport of their respective cases. The petitioner's witness Shrj K. M.Shrivastava (P.W. 1) is the Deputy Superintendent Archaeologist, Archaeo-logical Survey of India, Central Circle, Bhopal and he a'ppeared with thefiles relating to; the contract in question. He has been posted as DeputySuperintendent Archaologfet at • Bhopal since 1 st May, 1966. Hisevidence with reference to the documents from the Government files referredto above, shows that the contract in question entered into on 25th January,1954 for Rs. 37,012 which was to be completed by the respondent withinthree months i.e. by 25th May, 1954 (as per Ex. P.2 and P.4) was notcompleted upto 27th August 1959 (vide Ex. D.3). A specific questionwas put to him in the examination-in-chief whether he was in a positionto state if the contract in question was fully completed by the respondentor not and his reply was that he was not posted at Bhopal at the relevanttime but with reference to the Department's letter dated 20th June, 1957,(Ex. P.5). , he could say that till 20th June 1957, the respondenthad not complted the work and that whatever work he hadexecuted was defective. A memorandum dated 7th April, 1959 (Ex.

fi.L.R.] SUKl A PRASAD V. ATAMDAS 121

P. 6) was issued from the office ti the Superintendent and it shows thatthe respondent had deposited Rs. 1850 as security with the Governmentagainst the contract in question and the witness has deposed that so farthe said security has not been released. From the running bills in thefiles relating to the contract in question, the witness stated that the Depart-ment paid Rs. 27,656j9j-upto 31st March, 1956 to the respondent forthe part of the work executed by him.

10. Jn cross-examination, the witness was confronted with the letter(Ex. D.I) dated 23rd July, 1958 issued from the office of the DirectorGeneral of Archaeology, New Delhi and he deposed that from the fileshe could say that the respondent did not seem to have execu.ed theremaining part of the work in question after this letter (Ex. D.I). Hefurther deposed that the files brought by him do not show that any ofthe items given in the specification of the work (Ex. P. 4-B) to be, carriedout have remained incomplete except what has been stated in the letterdated 20;h June, 1957 (Ex.P.5). Further on he was confronted in cross-examination by Ex. D.3 dated 27th August, 1959. This is a reply bythe respondent to the Department's letter dated 11th August, 1959. Inthis letter, the respondent has clearly stated that "I want with all sincerityto finish the said work as early as possible ". Thus, it would beclear from this letter of the respondent that the contract in question hadremained incomplete atleast till 27th August, 1959 and the respondent waskeen to finish it as early as possible provided certain facilities were givento him by the government.

11. As against this evidence, the respondent Shri Atamdas (R.W.I)has deposed that he had fully and completely executed the contract inquestion relating to the repairing work of the "Ratnawali Burj, R.aisenFort" in December, 1956 and thus he means to say that the said contractwas not subsisting after 1956. He has further deposed that his name wasstruck off from the list of approved contractors in 1957 and since then,he did not take any contract either from the Government of India or fromany Government Department till today for the execution of any workIn connection with the previous election petition, he was examined as awitness on 13th November, 1957 and his deposition recorded in that caseis Ex. P. 10. The portion marked A to A in Ex. P. 10 is tothe effect that the repairing of the "Ratnawali Burj" was notcompleted till then by him and that full payment was also not"iade, to him. When he was confronted with his statement, he admittedhaving made it but he tried to explain it by saying that in addition to thecontractua1 work in question, he had executed other extra work and it wasthis extra work which had remained incomplete and, therefore, the saidstatement related to the non-completion of the extra work. It is true thatthe respondent had executed some extra work in addition to the contract inquestion during trie year 1956-57 as would be clear from the Denartnent'sletter (Ex. P. 5) dated 20th June, 1957 and also admitted by Shri K. M. Shri-vastfiva (P.W. 1); but it is absolutely wrong to say that the portion markedA to A in Ex. P.10 relates to the non-completion of the extra v/ork. Itit abundantly clear from this very portion that this admission relates tothe non-completion of tlie contract in question, namely, the repair inwork of the 'Ratnawali Burj, Raisen Fort'. Thus his own admission wouldestablish (hat he had not completed the contract in question at least upto

122 SURIYA PRASAD V. ATAMDAS (.VOL. XXXIf

13th November, 1957 when he was examined in the previous electionpetition.

12. He has also admitted before me that for the work which wasexecuted by him in connection with the contract in question, he receivedthe payment of about Rs. from the Department. This would alsoestablish that he had .not fully executed and completed the contract inquestion because the said contract was for Rs. 37,012. Again he auiadmitted his application dated 27th August, 1959 (Ex. D. 3) whichrelates to the contract in question and as already stated, in that applicationhe has clearly admitted that he was prepared to finish the said work asearly as possible provided certain facilities were given to him. Therefore,this document itself clearly establishes that till 27th August, 1959, thecontract in question was not completed or fully performed by the respon-dent. To the questions of the Court, he further admitted that neitherhe nor the Government brought any action against each other in connectionwith tne repairing work of the 'RatnawalJ Burj' in question. He went onto say that even today he has yet to receive about Rs. 10,000 or Rs. 12,000from the Government in connection with the contract in question andthough he made repeated demands from the Government in writing., till1957-58, he received no payment till today. He also admitted that he didnot file any suit against the Government to recover the alleged balance.

13. The substance of the evidence of these two witnesses coupled withthe documents referred to above would show that the respondent hadexecuted only a part of the work in connection, with the contract in questionentered into in 1954 and that the said contract remained incompiete atleast.till 27th August, 1959. It is also clear that his security deposit Rs. 1,850against this work was not released by Government and that he did notreceive it till today. Also he has not filed any completion certificate toshow that the said contract was fully performed by him. On the basisof these facts and circumstances it can be said with definiteness that atleasttill 27th August, 1959 the respondent did not execute the full work andcomplete the contract in question. Then the question arises whether hecompleted thj remaining part of the said contract at anv time between 27thAugust, 1959 and the date of the filing of his nomination paper on 19thJanuary, 1967 or its scrutiny or the declaration of his election on 23rdFebruary, 1957 from the Constituency in question. Further his evidenceshows that he has not received the balance about Rs, 10,000 from theGovernment till today in connection with the said contract.

14. On behalf of the petitioner, Shri Ojha urged that on the very admi-ssion of the respondent himself that full payment had not been made by theGovernment till today, it must be held that the contract in question has notbeen fully discharged by performance on both sides and therefore, the sameis subsisting today. In support he relied on Chaturbhuj Vithaldaslasani v. Moreswar Parsharam and other si,1) and Laliteshwar Prasad ShotwBatashwar Prasad and others (2) in which the above ruling was followed.

The case, of Chaturbu] Vithaldas Jasani v. Moreshwar Parshram andothers {supra) (1) was decided under section 7 (d) of the Act as itoriginaly stood. In that case, Their Lordships of the Supreme Court obser-

JA.I.R, T9<4S.C 2362A.I.R. 1966 S.C. 583

E.L.K.j SURIYA PRASAD V. ATAMDAS 123

ved that ; 'a contract for the supply of goods does not terminate when thegoods are supplied; it continues in being till it is fully discharged by per-formance on both sides. It cannot be said that the moment a contract isfully executed on one side and all that remains is to receive payment fromthe other then the contract terminates and a new relationship of debtorand creditor takes its place". This was followed in Lcditeshwar PrasarShai v. Balshwar Prasad and others (supra) (2) which was decided underSection 7 (d) of Act as amended in 1958. In this case it was held that.

"A contract for the supply of goods or for the execution of anyworks or for the performance of any services undertaken doesnot cease to subsist onJy because the goods had been suppliedor work had been executed for services performed. It continuesto subsist till payment is made and the contract is fully dis-charged by performance on both sides."

In view of this authority, the respondent would have been at-once outof Court, if section 7 (d) as amended in 1958 had not undergone a furtherchange; and the change is that this section has been replaced by section9A read with section 7(b) of the Act or by the, recent amendment of1966. In the new section 9A, an explanation has been added to make itclear that a contract with the Government shall be deemed not to subsist byreason only of the fact that the Government has not performed its part ofthe contract either wholly or in part if the contract has been fully perfor-med by the person by whom it has been entered into with the appropriateGovernment. It is common ground that the case in question is governedby this new section 9A read with section 7 (b) of the Act and the conten-tion of th respondent is that he has fully performed his part_of thecontract. / • ' " :'"! '_" ' ^

15. It would now be desirable to set out the old and the new statu-tory provisions on the point. The unamended section 7(d) as it origi-nally stood was under:—

"7. A person shall be disqualified for being chosen as, and forbeing a member of either House of Parliament or the Legis-tive Assembly or Legislative Council of a State

(d) If, whether bv himself or by any person or body of personsin trust for him or for his benefit or on his account, he has anyshare or interest in a contract for the supply of goods to, orfor the execution of any works or the performance of anyservices undertaken by the appropriate Government."

As amended in 1958, the section reads as under:—

"7. A person shall be disqualified for being chosen as, and for beinga member of either a House of Parliament or of the LegislativeAssembly or Legislative Council of a State.

(d) If there subsists a contract entered into in the course of histrade or business by him with the appropriate Government forthe supply of goods to, or for the execution of any works un-dertaken by that Government".

(2) AIR 1966 SC 583

124 SUR1YA PRASAD V. ATAMDAS [vod., CAXIl

As replaced in 1966 by section 9A and 7 (b) , these statutory provi-sions are as under:—-

"9A. A person shall be disqualified if, and for so long as, theresubsists a contract entered into by him in the course of his tradeor business with the appropriate Government for the supply ofgoods to or for the execution of any works undertaken by,that Government.

Explanation.—For the purposes of this section where contract hasbeen fully performed by the person by whom it has beenentered into with the appropriate Government, the contractshall be deemed not to subsist by reason only of the fact thatthe Government has not performed its part of the contracteither wholly or in part."

"7 (b) 'disqualified' means disqualified for being chosen as, and forbeing a member of either House of Parliament or of the Legis-lative Assembly ox Legislative Council of a State."

16. A comparison of these statutory provisions relating to disqualifi-cation would clearly show that the said provisions have undergone substan-tial changes fro.a time to time and these changes have been effected toavoid the difiicuUies to which a contracting party may be subjected.The language, of section 7(d) as it originally stood whichprovided for the disqualification in case of contracts with theGovernment was wide and probably vague enough to bring any kind andcategory of con'ract within its scope and the Parliament realised that ithad been a fruitful source of election disputes in the past. The languagewas wide enoug'i to include even the persons who only occasionally broad-cast any talk from the Radio Station or contribute any article to any Gove-rnment publication and such persons may come within the mischief ofthat section. Accordingly, section 7 (d) was amended! in 1958 in asimpler and more rational way so as to bring within its purview only twocategories of contracts entered into by a person with the Government inthe course of his trade or business and these two categories were contractsfor the supply of goods and contracts for the execution of any worksEven this change did not solve the case of a contractor, who has fullyperformed his part of the contract and Government did not perform its parteither wholly or in parr for one reason o r the other. According to thedecisions in the above two Supreme Court rulings, under section 7 (d)ay originally stood or amended in 1958, the contract continued to subsisttill payment was made and the contract was fully discharged by perfor-mance on both sides.

17. The Parliament probably realised that an innocent contractor,who c-as fully performed his part of the contract should not be penalisedif the Government did not perform its part. The' dispute about the settle-ment of payment or actual payment by the Government to the Contractormay continue for years together; the amount involved may be even pertvnv.& in some cases payment may not be made or ordered till the life time oftl-te contractors and in all these cases the contractor who has fully performedhis part of the contract would be disqualified to contest the election.Thcie seemed no justification to penalise such an innocent party. There-tore, tne explann.ilo.il to section 9A of the Act was added. The explana-

E.L.R.] SURIYA PRASAD V. A'I'AMDAS 1^5

lion says that for the purposes of this section (section 9A) where a cont-ract has been fully performed by the person by whom it had been enteredinto with the appropriate Government, the contract shall be deemed notto subsist by reason only of the fact that the Government has not performedits part of the contract either wholly or in part. The intention of theLegislature in adding this explanation is to avoid the rigour of the decisionsin the two Supreme Court rulings referred to above. In view of this ex-planation, the learned counsel for the petitioner cannot avail of the deci-sions in the two Supreme Court rulings simply because no full paymentas claimed by the respondent has been made by the Government.

18. Even then, the respondent is, not out of the woods. In view ofthe facts and circumstances of the case, he shall have to establish that thecontract in question has been fully performed by him, if he wants to availof the Explanation to section 9A. Shri Mishra, learned counsel for therespondent has urged before me that the respondent has fully performedhis part of the contract and in the alternative, he convassed that the samewas discharged by the breach committed by the Government, in case it isfound that the contract was not fully executed by the respondent. Accor-ding to him, Ex. D.I dated 23rd July 1958, the Director General ofArchaeology in India wrote to the Superintendent, Department of Archaeo-logy. Central Circle, Bhopal that "the contractor should be told categori-cally that he is not to proceed with the work". In view of this, Shri Mishraurged that the Government of India committed breach of the contract on23-7-1958 and, therefore, the contract in question must be deemed to havebeen discharged on 23-7-1958 and hence there subsisted no contract bet-ween him and the Government either on the date of filing the nominationpaper i.e. 19-1-1967 or its scrutiny or the declaration of the election resulton 23-2-1967. These contentions were repudiated by Shri Ojha, learnedcounsel for the petitioner.

19. As already found, the statement of the respondent Shri Atamdas(R.W.I) that he duly completed and fully performed the contract in ques-tion in December 1956 is utterly incorrect. It has further been found thatthe said contract v/as not completed by him even till 13-11-1957 when hewas examined as a witness in the previous election petition case and he hassuffered the finding in that case that the contract in question was subsistingeven till 19-11-1957. This is not all. In his reply dated 27-8-1959 (Ex~D.3), the respondent has clearly stated that—

"I want with all sincerity to finish the said work as early as possi-ble

The words 'to finish the said work' are eloquent enough to establishthat even till 27-8-1959, he had not fully performed *hs contract in ques-tion. In view of all this, his statement that he has to realise a balance ofabout Rs. 10,000/- from the Government of India in connection with thecontract in question is not true for the simple reason that he has not fullyperformed his part of the contract. The net result, therefore, is that atleasttill 27-8-1959, the respondent had executed only part of the work in conne-ction with the contract in question and that the said contract was not fullyperformed by him.

20. In these circumstances, it was for him to show whether after27-8-1959, he completed the remaining part of the work and if so when and

i 2 6 SURIYA PRASAD V. ATAMDAS [VOL. XXJUI

in what manner. The respondent has not adduced any oral or documentaryevidence, nor is there material on record to show that he completed tie re-maining part of the work in question at any time till today after 27-8-1959.In fact, according to his evidence, the said contract was fully performed byhim by December, 1956 and this has been found to be absolutely incorrect.Further, his tender (Ex.P. 2) which was accepted on behalf of the Presidentof India in connection with the contract in question shows that he "agreedto abide by and fulfil all the terms and provisions of the conditions containedin the pamphelt named 'General Directions and conditions of Contract,"and it further shows that all these terms and conditions were either read byHim or explained to him. This pamphlet is in the relevant file of the Govern-ment, which is before me and it bears the respondent's signature. It has beenmarked as 'X' by me. The endorsement thereon shown that it was provedin the previous election petition. Among other conditions, the said pam-phlet provides "that the contractor shall complete the work within thestipulated time and if that is not done, then time may be extended for suchcompletion on reasonable grounds, if the work executed is bad, imperfector unskilful the contractor shall be liable to remove this defect and in cer-tain cases he shall also be liable to pay compensation in case of bad work;requiring the removal of defects from such, imperfect or unskilled work willnot be considered as an admission of the due performance of the contract".It also provides that "in completion of the work the contractor shall befurnished with a final certificate. It further stipulates that in case of breachof any of the conditions of the contract, the Government will have option toadopt any of the courses mentioned therein including the course to rescindthe contract and the security deposit of the contract shall be forfeited. Incase, a final certificate has been furnished to the contractor, then his securitydeposit shall be released and refunded to him.

21. In the present case, the respondent has not filed any final certificatein token of having fully performed the contract in question nor there is anyevidence on record to show that the certificate was furnished to the respon-dent till today. It is also on record that the security deposit of Rs. 1,850/-in connection with the contract in question has not been refunded to therespondent so far nor is there any material on record to show that Gove-rnment forfeited it. Also paragraph 2 of Ex.D.5 dated 20-6-1957 fromthe Superintendent of the Bhopal Office to the Director General, New"Delhi, in connection with the work in question, shows that—

"the work which is still incomplete was inspected by the Archaeolo-gical Engineer during 1957 and found to be defective. Inview of his adverse comments, further work was discontinuedand the work is still incomplete."

At the end of this document, the Superintendent also wrote that—

"the contractor on the other hand is very keen to finish the work andrequests for further instructions."

We have seen above that the respondent did not complete the work inquestion and remove the defects atleast till 27-8-1959 and he has adducediK> evidence to show that these defects were removed and the work wascompleted at any time till today after 27-8-1959. All these facts coupledwith the facts that the respondent did not file the final certificate and non-•jcefund of his security deposit clearly establish that till today the work in

sE.L.R.] SURIYA PRASAD V. ATAMOAS 1*7

connection with the contract in question has not been completed by him. Inother words, he has not fully performed his part of the contract till this day.Accordingly it follows that the contract in question was subsisting all alongincluding on the date on which the election result of the constituency iaquestion was declared.

22. It was, however, urged by respondent's learned, counsel that thesaid contract was discharged by rescission and came to an end on 23-7-1958 when the Government committed the breach. The argument is thatthe respondent was keen to perform the remaining part of the contract asindicated in Ex. P.5. dated 20-6-1957 in which the Bhopal Office com-municated to the Delhi Office that "the contractor on the other hand isvery keen to finish the work and request for further instructions." Thatafter thh, the Delhi Office wrote to the Bhopal Office on 23-7-1958 asper Ex. D. 1 that—

"the contractor should be told categorically that he is not to prcesdwith the work."

On the basis of these two statements, it was urged that the Governmentcommitted the breach on 23-7-1958; that the respondent accepted thisbreach and rescinded the contract and thus the contract was dischargedby breach and came to an end on 23-7-1958. Accordingly it was conten-ded that the contract in question was not subsisting on any of the relevantdates in this case and hence the respondent did not suffer from the disquali-fication under section 9A read with section 7(b) of the Act. In supporthe relied on Gaurishanker Shastri v. Mayodhardas (3)

23. This contention at the very outset suffers from some serious infirmi-ties and drawbacks. It is hardly needful to say that rescission must bepleaded definitely, cearly and in unequivocal terms. Repudiation byone part standing alone does not terminate the contract. It takes too toend it, by repudiation on the one side and acceptance of the repudiation onthe other. The party relying on rescission must expressly plead the manner

• in which and the date on which one party repudiated the contract, the dateand the manner when and in which such repudiation was communicatedto the other party; whether the other party accepted such repudiation andif so when and in what manner and it is then that, the ether party is usuallysade to rescind the contract. Section 62 of the Indian Contract Act says thatIf the parties to the contract agree to substitute a new contract for it or toor alter it, the original contract need not be performed. This is not all.The rescission of the contract has to be communicated and this should bedone in the maner as provided by section 66 of the Indian Contract Act.When all these conditions and essentials are complied with then the originalcontract comes to an end. The same conclusion would flow from Gauri-shanker's (3) (supra) ralied on by the learned counsel for the respon-dent where in paragraph 9 of the said authority, tfieir Lordships observedas under:—

"A contract is discharged in various ways. One of such ways isthe discharged of the contract by performance. One other wayin which the contract is discharged is by breach by one of the

(3) 1959 J, L J. no

128 SUR1YA PRASAD V. ATAMDAS [VOL. XXXII

parties and the rescission of the contract on accepting the breachby the other. That there are claims arising from or underthe contract does not show that the contract itself is subsis-ting."

24. Almost the same thing has been stated at page 160 of Halsbury'sLaws of England, Third edition, Volume 8, where the methods of dischargeof contracts have been discussed in paragraph 274. It is as under:—

"274. Four principal methods. There are four modes in which acontract may be discharged; (1) by agreement; (2) by perfor-mance, where all that the promiser undertook to do has beenperformed; (3) in certain cases where the promisor; (4) bybreach, where the promisor has failed to perform his promiseand the other party elects to treat the contract at an end. Inaddition a contract may be extinguished by statute".

Here in this case, the respondent's counsel relies on method No. 4urging that the original contract had been discharged by rescission of thecontract on accepting the breach.

25- In the present case the respondent has not at all pleaded rescis-sion in his written statement nor has he given any of the particulars of sucha rescission on which now his counsel wants to rely. As already statedpleadings of the respondent on the point of rescission should have beendefinite, express clear and unequivocal so that the other party were nottaken by surprise but he has not pleaded anything like that at all. It isnew an established law that the Court is called upon to decide that casewhich has been pleaded and so it cannot travel beyond the pleadings. If itwere to do so this would expose, it to the charge that it has made outaltogether a new case for a party which is not permissible in law. Thatbeing so, the contention that the original contract came to an end by rescis-sion has to be rejected.

26. There is another aspect of the case. The case of the respondenthimself is that he has fully performed his part of the contract by executingthe entire work in question by December, 1956. He never says that heperformed only part of the contract and the remaining part of it wasrescinded by him. So his case is of full performance of the contract inquestion. It is the case of his counsel at the time of the argument thatthe contract was rescinded on accepting the breach and thus it was dis-charged on 23rd My, 1958. Such a position cannot be accepted andspecially so when there are no pleadings whatsoever on the point.

27. There is still another aspect of the case. Assuming that the lawof pleadings can be ignored on tne point of rescission, let us see if thecase of the respondent is, in any way, bettered in view of the materialthat has come on record. The main plank of the argument of ihe respon-dent's counsel is that the statement to the effect that—

"the contractor should be told categorically that he is jot to pro-ceed with the work."

is a clear repudiations of the contract and, therefore, the Government hascommitted the breach on 23rd July, 1958 and the contract came to anend on this date by—rescission. In my opinion, ffais stouement ckws nof

E.L.R.] SURIYA PRASAD V. ATAMDAS 129

amount to repudiation of the contract on the part of the Government norit can be said that the Government has refused to perform its promise.It is on record that part of the work which the respondent had executedwas defective. The defects had not been removed inspite of instructionsfrom time to time. It is very likely that the Engineers of the Governmenthad to give instructions to the respondent on the spot about the particularsof the bad work and the manner in which the defects were to be removed.To this effect some indication can be had from the respondent's own replydated 27th August, 1959 (Ex. D. 3). Accordingly, by merely asking thevespondent not to proceed with the work, in such circumstances, wouldnot amount to repudiation of the contract by the Government or refusalto perform its part.

28. liven if we assume that this was tantamount to repudiation thenthe question is whether such repudiation was communicated by the Gov-ernment to the respondent and whether the latter accepted it as a breachof the contract. It is clear that the two statements referred to in Ex, P, 5dated 20th June, 1957 and Ex. D. 1 dated 23rd July, 1958 relied uponby respondent's counsel, were exchanged between the Bhopal office andthe Delhi office and not between those offices and the respondent. There-fore, it should have been established that the alleged repudiation or breachwas communicated by either of these offices to the respondent, but thereis not an iota of evidence on record to establish such communication tothe respondent. Even if we were to rely on the presumption arising outof section 114(E) of the Indian Evidence Act that official acts have beenregularly performed and thus presume that the Bhopal Office had commu-nicated the said repudiation or breach to the respondent even then his caseis not improved. As already stated, it must be shown that the respon-dent had accepted the said repudiation as breach of the contract andagain there is not an iota of evidence on record to establish that the res-pondent accepted it as a breach. Even if he accepted it as a breach, thematter does not end here. He had to communicate his acceptance of thebreach to the Government as contemplated by section 66 of the IndianContract Act and on this point also, there is as evidence whatsoever onrecord to show that he communicated his acceptance of the said breach.Ail these facts taken collectively fail to establish that the respondent hadaccepted the alleged repudiation as breach of the contract in questionand that he had rescinded the said contract. Accordingly, it cannot besaid that the contract was treated as discharged by breach.

29. This is not all. The entire superstructure sought to be raised atthe time of the argument on the ground of rescission is totally demolishedby the respondent's own reply dated 27th August, 1959 (Ex. D. 3). Thisdocument was brought on record by the respondent's counsel. Assumingthat the statement in Ex. D. 1 dated 23rd My, 1958 that the respondentshould be told not to proceed with the work, amounts to repudiation of!lie' contract on the part of the Government (or that the Government hadrefused to perform its promise) subsequently the respondent expresslystated in Ex. D. 3 dated 27th August, 1959 that—

"I want all sincerity to finish the said work as early as possible."These fords clearly signity that he did not accept that repudiation asbreach (t the contract and did not put an end to it but on the other hand

1 3 0 SUR1YA PRASAD V. ATAMDAS - [VOL. XXXII

they signify his acquiescence in its continuance. Section 39 of the IndianContract Act provides that—

"When a party to a contract has refused to perform or disabledhimself from performing, his promise in its entirety, the pro-misee may put an end to the contract, unless he has signified,by words or conduct, his acquiescence in its continuance."

As already stated the respondent, by words in Ex. D. 3 dated 27thAugust, 1959, had signified his acquiescence in the continuance of theoriginal contract and therefore, it clearly follows that he did not put an endto the said contract.

30. For all these reasons, the contention raised for the first timeduring the course of the argument that the contract in question was pet-formed as discharged by breach is rejected.

31. Ex. D. 4 dated 22nd June, 1967 which is a letter by the Superin-tendent of the Bhopal Office to the respondent simply shows that the res-pondent's name is not in the list of approved contractors since February,1957 and that no work had been assigned to him for execution since then.This is of no avail to the respondent because in the present case, we areconcerned with the contract in question entered into by him in 1954 andnot of any other contract either in 1957 or thereafter.

32. I am conscious of the cases in which neither party has insisted oathe performance of the contract for an inordinate length of lime and insuch cases, it may be said that the parties have mutually abandoned thecontract. In such a case, the contract may be treated as terminated ordischarged by abandonment but a party relying on abandonment mustexpressly plead and give its particulars. I make it clear that at the timeof the argument, the learned counsel for the petitioner did not canvass inthis case that there was mutual abandonment'or the contract in questionby the parties. Even, had this ground been urgeu, it would not have beenaccepted for various reasons. Firstly because the petitioner has not speci-fically pleaded any such abandonment in his written statement; secondlybecause the respondent himself stated in the witness box that he fully pet-formed the contract and executed the work in question completely byDecember, 1956; and thirdly because the contract entered into on 25thFebruary, 1954 was to be fully completed within three months and yet itwas completed only in part by August 1959 i.e. during the period of about66 months and the remaining part remained incomplete. As already stated,there is not an iota of evidence on record to show that the respondentcompleted the remaining part at any time between August 1959 and thedate of this petition filed on 10th April, 1967. There is also no evidenceon record that during this period, the parties to the contract had mutuallyabandoned it. If a contract to be completed in three months could notbe (completed by August 1959 and so it~was still subsisting then, there isnothing surprising if the respondent could not complete it by 1967 withthe result that it is still subsisting even now. Therefore, had the conten-tion regarding abandonment been raised at the time of the argument bythe learned counsel for the respondent, that would have been of no availto him in the circumstances of this case and in the face of the materialand evidence that has come on record.

E.L.R.] SURIYA PRASAD V. ATAMDAS 1 3 1

33. To conclude, it must be held that the respondent did not fully per-form the contract in question (repairing work of "Ratnawaliburj RaisomFort) entered into by him on 25th February, 1954 till today and that thesame has not been terminated or discharged in any of the manners knownto law. I, therefore, hold that the said contract subsisted on the date ofthe fUiti<r of the nomination paper on 19th January, 1967 and its scrutinyand also on 23nl February. 1967 when the election result of the consti-tuency in question was declared. In fact, it subsists even today. Accord-ingly, lie smTers from the disqualification under section 9A read with Sec-tic;! 7(b) ct" the Act and, therefore, he was not qualified or was disquali-fied for being chosen to fill the parliamentary seat in question. Accordingly,I decide issues l ( a ) and (b) in the affirmative.

34. Issue No. l (c ) :~-Tfi view of ray above finding, it is clear that respondent's nomination

pener was improperly accepted and so I decide this issue in the affirmative,

35. Issue :\'o. l(d): —The disqualification as contemplated by section 9A read with section

7 (b ; of the Act is absolute because such a disqualification is itself one ofthe grounds for declaring the election of a returned candidate to be voidunder section 100(1) (a) of the Act. As the respondent in this case,who is the returned candidate, suffered from this disqualification on therelevant date or dates, his election shall have to be declared as void and,therefore, the question thai: the election of the returned candidate wasmaterially aiTected by improper acceptance of the nomination paper would,in fact, be irrelevant. 1 decide this issue accordingly.

36. Issue No. 2: —The Jearrcd counsel for the petitioner did not address any arguments

on this issue :a the time of the argument and, therefore, this ground mustbe deemed to have been given up and quite rightly. The facts andcircumstance? ;\- existing in 1957 at the time of the previous election, onfre br.sis of uhich the respondent was held to be suffering from disquali-fication under section 7(d) of the Act as un-amended, are liable to changeduring the period of the years when the present election 1967 was held.A contract between the contractor and the Government may subsist onthe relevant dates in 1957 but such state of affairs may or may not existin 1967 en account of the changes in between, and, therefore, what wasdecided in the previous petition on the basis of those facts may or maynot hold good in 1967 because of the change in the circumstances. Infact, there was substantial change regarding the statutory provision relat-ing to disqualification. As already stated, section 7(d) as originally stood,was amended in 1958 and again in 1966. It was replaced by sections 9Aand 7(b) of the Act with the addition of the explanation appended toSection 9A, the effect of which is to remove the rigour of the two SupremeCourt rulings cited above. Such being the position, I hold that the find-ings reached in the previous election petition in connection with 1957election would not operate as res judicata in this ease relating to 1967election. I, therefore, decide this issue in the negative.

37. Issue No. 3 : —

At the time of the argument, the learned counsel for the respondentdid not press this issue and quite rightly. The election petition was filed

132 SURIYA PRASAD V. ATAMDAS [VOL. XXXII

on 10th April, 1967, while the election result was declared on 23rd Febru-ary, 1967. Thus, it was filed on the 46th day. But 9th April, 1967 wasa Sunday which has to be excluded. Accordingly, it was filed within 45days from the date of the election of the returned candidate as requiredby Section 81 of the Act and, therefore, it was within time. Hence I de-cide this issue in the negative.

38. Issue No. 4:—

The respondent was not qualified or was disqualified under the Actfor being chosen to fill the parliamentary seat in question and, therefore,on this ground his election shall be declared to be void. I decide Ihis issuein the affirmative.

39. Issue No. 5:—

In the result, the petition is allowed. The respondent suffered fromthe disqualification under section 9A read with section 7(b) of the Acton the date of his election and in fact he still suffers from the said disquali-fication even today because the Government contract entered into by himwith the Central Government still subsists. Accordingly, his election fromthe Morena—Reserved Lok Sabha Constituency No. 1 of the State ofMadhya Pradesh is declared to be void under Section 98 read with Sec-tion 100(1) (a) of the Act. The respondent shall pay the costs of thepetitioner and bear his own. Counsel's fee Rs. 250 for each side, ifcertified,

Petition A llowed

IN THE HIGH COURT OF GUJARAT

BECHARBHI PARMABHAI HARJIVANDAS

vs.

DEVJIBHAI SADABHAI PARMAR

(B. J. DIVAN, J.)

October 23, 1967

Representation of the People Act, 1951, ss. 77, 100 (7) (b) , 123 ( 3 ) —Election Posters with pictures of Mahatma Gandhi with Rajaji-whethera national "symbol"'Considerations for determining whether a symbol

is National-use of quotation from one of the speeches of MahatmaGandhi advising that the Congress should be dissolved and that ofRajaji "Remove Congress-Rajaji-196T'-whether a corrupt practiceunder Section 123 (3)—Conduct of Elections Rules, 1961, Rule 86—

. Return of election expenses-Expenditure incurred for repairs of motorcars used in election campaign-whether that expenditure should beincluded in the return-High Court's decision in an election petitionunder Section 98 or 99 of the Act-Whether High Court has powerto review its decision.

The petitioner, a voter of the Constituency, challenged the election ofthe Respondent, a Swatantra candidate, to the Gujarat Assembly allegingthat the Respondent had committed corrupt practices of using electionposters with pictorial representation of Mahatma Gandhi, a national symbol,for furtherance of his election prospects and incurred expenses in contra-vention of Section 77 of the Act. The Respondent denied the allegations.

After orders were passed on the main election petition, the Respondentapplied to the Court for a review of its decision on the ground that anamount of Rs. 125, which was deposited by him at the time when he filedhis nomination paper was included in his election expenses through anerror and if that sum was deducted from the total amount of expenditureas arrived at by the Court's decision, then his total expenditure would nothave exceeded the statutory limit.

HELD Allowing the petition:

On the facts, the Respondent had incurred expenditure exceeding thestatutory limit prescribed by law and thereby had committed the corruptpractice under Section 123(6) of the Act and his election was void underSection 100(1) (b) of the Act.

K. 1. Maganathan v. K. T. K&salram and others, 9 E.L.R. 242 Dif-fered from.

The correct test in judging whether a particular object is a symbol foranother object or not is to find out whether by common acceptance by a•fairly large number of people there is such an association of ideas between

133

134 B. P. HARJIVANDAS V. D. S. PARMAR [VOL. XXXIli

what is stated to be the symbol and the concept or the idea or the object,of which it is the symbol that by looking at the symbolic object the wholeidea or the whole concept is evoked in the mind of the viewer. ThoughMahatma Gandhi is revered as the Father of the Nation, and as one ofthe makers of Independent India, it is difficult to say by looking at his.pictorial representation that it evokes any national idea or national senti-ments, nor it evokes the ideas of the nation as a whole. The use, there-fore, by the respondent of the pictorial representation of Mahatma Gandhi,cannot be said to be use of a national symbol and the respondent cannotbe said to have committed the corrupt practice laid down in S. 123(3)of the Act.

Ramanbhai v. Dobhi Ajit Kumar, A.LR. 1965 S.C. 669;Karan Singh v. Jamuna Singh, A.I.R. 1959 S.C. Allahabad, 427;Sengupta v. Shivamurthiswamy, A.I.R. 1961 Mysore 106;5. Mahar Singh v. Umrao Singh, A-I.R. 1961 Punjab 244;

relied onDesai Basawrai v. Dasankop Hassat and others, 4 E.L.R. .380(390)

Differed from

HELD further that items of expenditure incurred by the Respondenton repairs of cars which were used for his election campaign, are items ofexpenditure incurred by him in connection with the election and have tobe included in the return of Election Expenses as required under Rule 86.

HELD also: Section 87(1) of the Act provides the procedure that is tobe followed in the trial of election petitions and the power of reviewwhich must in terms be conferred has not been conferred on the HighCourt; therefore the High Court had no power of reviewing its own decisiongiven under Section 98 or 99 of the Act.

Narayan Yashwani Nene v. Rajaram Balkrishna, A.I.R. 1961Bom. 21.Brij Mohan Lai v. Election Tribunal and others, 1966 Dhobia's

Election Cases, 93.K. Kamraja Nadar v- Kunju Thevar, A.I.R. 1958 S.C. 687Mohal Lai Chopra v. Rai Bahadur Rao Raja Seth Hiralal, A.I.R.

1962 S.C. 527.Imamati Mallappa Basappa v. Desai Basavra; Ayyappa and others,

A.I.R. 1958 S.C: 698.Harish Chandra Bajpai v. Triloki Singh, A.I.R. 1957, S.C. 444-Vafati Gokul v. The State of Gujarat, 7 G.L.R. 1114.U.J.S. Chopra v. State of Bombay, A.I.R. 1955 S.C. 633

referred to.ELECTION PETITION NO. 24 OF 1967; andREVIEW APPLICATION NO. 1 of 1967.G. C. Patel J. C. Patel for the Applicant.O. T. Dam and J. J. Mehta for the Respondent.

E.L.R.] B. P. HARJIVANDAS V. D. S. PARMAR 135

ELECTION PETITION NO. 24 OF 1967

23rd October, 1967.

THE HON'BLE MR. JUSTICE B. J. DIVANNo. 1: Yes.Nos. 2 to 5: No.Mr. C. T. Oaru with Mr. N. J. Mehta, and J. M. Patel for the petitioner.M/s. G. C. Patel and J. C. Patel for the respondent.

DIVAN J.23rd October, 1967

ORAL JUDGMENT

The petitioner is a voter and he has filed this petition to challenge theelection of the respondent to the State Legislative Assembly from BavlaLegislative Assembly Constituency. The polling took place on Fabruary15, 1967 and the result was declared on February 23, 1967. The res-pondent was declared elected by the Returning Officer. At the time ofthe poll there were three candidates. One was the respondent, who was putup by the Swantantra Party; the second candidate was Dr. Bhanu-prasad Pandya who was put up by the Congress Party andthe third candidate was Gulabrai Hiralil, who was an independentcandidate. At the end of the counting fthe Returning Officer annoucedthat the respondenet had secured 22,352 votes and Dr. Bhanuprasad hadsecured 14,194 votes and the third candidate secured 1932 votes andhence the respondent was declared as the returned candidate. The peti-tioner has contended in his petition that the respondent had committedhimself or through his agents with his consent the corrupt practice of usinga national symbol for the purpose of furtherance of his election prospects.The second corrupt practice alleged is about incurring or authorizingexpenses in contravention of s. 77 of the Representation of the People Act,1951 (hereinafter referred to as the Act). Thirdly, it has been contendedthat the respondent or his agents with the consent of the respondent,hired or procured a vehicle or used such vehicle for the free conveyance ofvoters to or from Polling Stations; and it is further alleged that the res-pondent or his agent with his consent used undue influence to interferewith the free exercise of the electoral rights of the voters. The respondenthas denied in his written statement the various corrupt practices which heis alleged to have committed in the course of the election. The petitionerhas ultimately relied upon only two corrupt practices at the time whenthe arguments were advanced before me and those two corrupt practiceswere regarding the use of national symbol and incurring or authorizingexpenditure in contravention of s. 77 of the Act; and it is on the isssuespertaining to these two corrupt practices that 1 will deal in the course ofthis judgment. There are also certain technical objections raised to themaintainability of this petition but it is not necessary for me to deai withthose technical objections based on s- 83(1) of the Act, as the issue wasnot pressed before me.

Regarding the first corrupt practice regarding the use of a nationalsymbol, the contention of the petitioner is that the respondent or the

1 E.C.—10

I 3 6 B. P. HARJ1VANDAS V. D. S. PARMAR [VOL. XXXII

Swatantra Party, which was backing the respondent, got printed and pub-lished a large-size poster and the printed matter on the poster showedpictorial representations of Mahatma Gandhi and Rajagopalachari, a Swa-tantra Party Leader. On one side of Mahatma Gandhi, the symbol ofthe Swatantra party viz., Star is shown and the words on the poster arean appeal to the voters to cast their votes for the Swatantra Party Symbol,Star; and on the poster quotations from one of the speeches of MahatmaGandhi is printed advising that the Congress should be dissolved; andRajajrs words are quoted, viz.: "Remove Congress-Rajaji-iy6 7". Boththese pictures printed on the poster are in full and large size and Gandhijiis shown standing with Rajaji shoulder to shoulder with his right armaround the shoulder of Rajaji According to the petitioner, a large numberof these posters were pasted at conspicuous places so as to attract theattention of the voters and they were particularly pasted on many buildingsin Bavla and also at th office of the Swatantra Party at Bavla; that therespondent used to visit that office often and it was with his consent thatthe posters were pasted.

Now, the petitioner has examined before me Kanaiyalal Ratilal Shah,petitioner's Witness No. 3. This witness is an employee of Subhash Prin-ting press at Ahmedabad and that Printing Press had received orders forprinting of election posters for the Swatantra Party. The larger poster,which is part of Ex."A", was printed at the Printing press where this wit-ness is working, viz., Subhash Printing Press. According to this witness,the posters which they printed ^or Swatantra Party had the same com-mon design in the upper portion but only the names of the candidates in thedifferent constituencies were changed in the posters meant for that parti-cular constituency. According to Kanaiyalal, they had also printed posterslike this with the names of the respondent and R. K. Amin printed at thefoot of such posters. Vithallbhai Shat, the Secretary of the SwatantraParty at Ahmedabad, had placed the order with them for printing theseposters. At the time of placing the order the Secretary of the Swatan-tra Party had given them the names of the different candidates putup by that party whose names were to be put at the foot ofsuch posters; and the amount of the bill was paid to the Pressby the Swatantra Party at Ahmedabad. In his cross-examination,Kanaiyalal admitted that he or his office had no copy of the poster showingthe names the respondent and R.K. Amin and no such copy was to be fo-und in their record on October 9, 1967, when he gave his evidence beforethis Court. Kanaiyalal did not know whether under the provisions oflaw any printing press printing election propaganda material has to main-tain one copy of such material on its own records and has also to forwardanother copy of such material to the District Election Officer. Kanai-yalal admitted that apart from his bare word there was nothing on the re-cord of tfie Press to show that they had printed posters showing the name ofthe respondent at the foot of such posters. One bill was prepared for allthe posters and it was made out in the name of the Swatantra Party. Thereis no reason to reject the evidence of Kanaiyalal because he is the man fromthe Printing Press where the posters like the large poster in Ex. "A" wereprinted. The poster which is on the record as part of Ex. "A" does notshow the name of the respondent or of R. K. Amin. I may point cut atthis stage that Bavla Constituency was inculded in the area of the largerLok-Sabha Constituency and the Lok-Sabha Constituency candidate put upby the Swatantra Party was R. K. Amin. The posters which were got pre-

E.L.R.] B. P. HARJIVANDAS V. D. S. PARMAR 137

pared by the Swatantra Party showed the name of the Lok-Sabha candidateand also of the State Assembly candidate from the constituency concerned.The copy of the poster on the record of the Court shows the names of thecandidates from the Baroda District Constituency and it is the evidenceof this witness, Kanaiyalal, that some of the posters which he printedshowed the names of the Respondent and R. K. Amin; and it is but commonsense that if the Swantantra Party got those posters printed at the SubhashPrinting Press for the purpose of being posted in different constituenciesthey would get printed the said posters with the names of the respondentand R. K. Amin so far as Bavla Constituency was concerned because rouseful purpose would be served by pasting the posters in Bavla Constitu-ency which did not mention the names of the two Swatantra Party, candi-dates one for the Lok-Sabha and the other for the State Assembly seat, fromBavla Constituency.

Under these circumstances, both on the ground of probabilities and onthe ground of direct evidence of Kanaiyalal, I accept the contention of thepetitioner that the Swatantra Party had got printed certain posters in eachof which the design was of the larger poster, part of Ex. "A", and that suchposters were utilized for the election propaganda purpose of the SwatantraParty in T3avla Constituency.

It is true that petitioner's witness No. 11, Harishchandra TanmanralDesai, who is working in the Sachivalaya at Ahmedabad, has deposedthat the office of the Chief Electoral Officer, Gujarat State, where he isworking, has not received any posters with the names of fhe respondentand R. K. Amin and his office had received an exact copy of the postershowing the pictures of Gandhiji and Rajaji and he had brought with him toCourt an exact copy of that poster from the records of his office. Thus nei-ther at the Printing Press nor at the office of the Chief Electoral OfficerGujarat State, is a copy of the poster with the names of the respondent andR.K. Amin, the Lok-Sabha candidate printed at the foot of the poster, to befound from the records of either of them. The question, however, re-mains whether the Swatantra Party had got these posters printed with thenames of the respondent and R.K. Amin and utilized those posters by past-ing them at conspicuous place in Bavla Constituency. The Presi-dent of Dhoka Taluka Unit of the Swatantra Party, BhagwandasPatel, has been examined as a witness for the petitioner andaccording to Bhagwandas, during the time that the election cam-paign was going on poster similar to the larger poster in Ex. "A"were pasted near the office of the Swatantra Party at Bavla and also in diff-erent villages in Bavla Constituency. At the relevant time there was anoffice of the Swatantra Party Unit at Bavala and witness Bhagwandas Patelwas in charge of that office. In his evidence Bhagwandas has stated that hedid not recollect at the time of giving his evidence the names of persons

tshown at the foot of such posters but he took it that only the names of thecandidates from his Constituency would be shown on the posters pasted inhis Constituency. According to Bhagwandas, both the posters, which areinculded in Ex. "A", were pasted showing the same type of pictures. Such

-posters were got pasted near the offices of the Swatantra Party and also indifferent villages. It is true that after the date of the election there have

~>been differences between Bhagwandas on the one hand and the respondent on:the other arising from a claim made by Bhagwandas regarding election(expenses which he had incurred in connection with the election of thethat respondent; and it has been alleged that it is because of this dispute.

138 B. P. HARJIVANDAS V. D. S. PARMAR [VOL. XXXIE

which is still pending between Bhagwandas and the respondent that Bhag-wandas had come forward to depose falsely against the respondent. I amnot prepared to discard the testimony of Bhagwandas on this ground alonebecause, as I have already pointed out from the evidence of Kanaiyalal, itis clear and it has been established by the petitioner that the posters with. •the names of the respondent and R.K. Amin, one for the State Assemblyand the other for the Lok-Sabha, were got printed by the Swatantra PartyOrganization and it is but obvious that such posters would be pasted atconspicuous places in the constituency and would certainly be paster nearthe office of the Swantantra Party. On the ground of probabilities, there-fore, I accept the evidence of Bhagwandas regarding the pasting of theposters.

The question then arises whether the posters contained any materialwhich would offend against any of the 'provisions in s. 123(3) of the Actinasmuch as the poster can be said to use a national symbol for the fur-therance of the prospects of the election of the respondent. Now, Mr.Daru, on behalf of the petitioner, has not contended before me that thelanguage or the words printed on the face of the larger poster, part of Ex."A", viz. the quotations from Gandhiji's speech asking that the Congressshould be dissolved and the sentence of Rajaji to the effect that the Con-gress should be thrown out or defeated—are objectionable; but what iscontended is that by using the pictorial representation of Gandhiji, anational symbol was used by the respondent or on his behalf for the fur-therance of the election prospects of the respondent.

In support of his argument, Mr. Daru relied upon the provisions of theEmblems and Names (Prevention of Improper Use) Act, 1950. (Herein-after referred to as the Emblems Act). This Act is an act to prevent theimproper use of certain emblems and names for professional and commer-cial purposes; and under s. 2(a). "emblem" means any emblem, seal, flaginsignia, coat-of-arms or pictorial representation specified in the Schedule;and entry 9A in the Schedule is as follows:—

"The name or pictorial representation of Mahatma Gandhi or thePrime Minister of India."

It is, therefore, contended that the Legislature had enacted by the definitionclause and the entry in the schedule that the pictorial representation ofMahatma Gandhi is an emblem; and therefore, it was contended thatpictorial representation of Mahatma Gandhi amounts of national symboland the use of such symbol for the furtherance of the election prospects ofthe respondent amounts to a corrupt practice. It was contended that anemblem as defined in the Emblems Act is a symbol and since this symbolis a national symbol, the pictorial representation of Mahatma Gandhiamounts to corrupt practice under s. 123 (3). I am unable to accept this-argument of Mr. Daru because the provisions of the Emblems Act havebeen enacted by the Legislature for the specific 'purpose of preventing animproper use of certain emblems and names for professional and commer-cial purposes. The whole object of the Legislature in the Emblems Actis to see that certain emblems and names should not be exploited for pro-fessional or commercial purposes and in the schedule not only are theIndian National Flag, or the emblem of the Government of India and othersimilar emblems set out but even the name, emblem or official seal of theUnited Nations Organisations, World Health Organisation, International Civil

E.L.R.] B. P. HARJIVANDAS V. D. S. PARMAR 139

Aviation Organisation and other International Organisations were alsoreferred to. Therefore, the whole object of the Legislature in enact-ing the Emblems Act is to prevent commercial exploitation or exploitationfor professional purposes of the emblems and names set out in the Scheduleto the Emblems Act. Merely because an emblem or a particular objectbecomes an emblem by virtue of the definition clause of the emblems Act,which is enacted for a totally different purpose, it cannot be said that thatparticular pictorial representation becomes an emblem and, therefore, asymbol.

In Ramanbhai v. Dashi Ajitkumar, (1) the Supreme Court has ex-plained as to what is meant by the word "symbol" in the context of s. 123(3) of the Act. In para (10) at page 674 of the report, Mudholkar L,delivering the judgement of the Supreme Court, has adopted the followingdefinition of the word "symbol" from the Webster's New World Dictionary.

"something that" stands fo or represents another thing: especiallyan object used to represent something abstract emblem: as thedove is symbol of peace, the cross is the symbol of Christia-nity,"

Therefore, before the petitioner can succeed in his contention regard-ing the use of national symbol, he must first satisfy me that the pictorialrepresentation of Mahatma Gandhi is a national symbol. It is not anemblem and it cannot be said to be an emblem in this context merely be-cause by virtue of the provisions of the Emblems Act that pictorial repre-sentation has been laid down to be an emblem for the purposes of that Act.Now a symbol really speaking must be something that stands for or repre-sents another thing and a pictorial representation of Mahatma Gandhi standsfor nothing else but Mahatma Gandhi himself. It is true that by 'ongassociation of ideas and by acceptance by the nation as a whole, even apictorial representation of somebody's figure may be capable of evokingnational sentiments or national feelings. In the two illustrations given byWebster's New World Dictionary, which definition has been accepted by theSupreme Court, the dove is a symbol of peace and the cross is the symbolof Christianity. The dove has so much been accepted as a symbol of peace,that when one sees the pictures of doves, by association of ideas the con-cept of peace is brought into forefront of one's mind. Similarly, whenone, sees the pictures of the cross, by association of ideas Christianity isevoked. Therefore, the correct test, in my opinion, of judging whethera particular object is a symbol for another object or not is to find out whe-ther by common acceptance by a fairly large number of people there issuch an association of ideas between what is stated to be the symbol andthe concept or the idea or the object of which it is the symbol that bylooking at the symbolic object the whole idea or the whole conceptis evoked in the mind of the viewer. Though Mahatma Gandhi is reveredas the Father of the Nation, and as one of the makers of Independent India,it is difficult to say by looking at his pictorial representation that it evokesany national idea or national sentiments. Therefore, apart from the ques-tion whether Gandhiji's pictures have been prescribed by the Legislature tobe a national symbol or not, even if it can be said that by and large thepictorial representation of Gandhiji is capable of evoking the national senti-ment, it can still be held to be a national symbol, even though the Govern-

ed A.I.R. 1965—s.C. 669.

14O U. P . HARJIVANDAS V. D. S. PARMAR VOL. XXXII

ment or the Parliament or the Legislature have not laid down in so manyterms that that pictorial representation would be a national symbol.

On behalf of the respondent, my attention was drawn to the judgmentof the Division Bench of the Allahabad High Court in Karan Singh v.Jamuna Singh (2). I respectfully agree with the conclusion of the Allaha-bad High Court that in interpreting the words 'symbol' and 'emplem' usedin the Act, no assistance can be taken by referring to the Emblems Act.But with great respect I am unable to agree that in order that any particu-lar object or symbol can be said to be a National symbol, it must appearthat this portrait represents something National by some natural fitness, andthen it would also be an emblem; and if there is no fitness at all betweenwhat the portrait actually is and what it represents, it would be very diffi-cult to hold that it is a National symbol. The test which seems to haveappealed to the learned judges of the Allahabad High Court is that theNational flag became a National symbol by a resolution of the ConstituentAssembly, which had the supreme power to lay down the Constitution ofIndia; and apart from this, there were four other possibilities. Accordingto the learned judges of the Allahabad High Court, the National emblemis also the National symbol because of the enactment in that behalf. Tomy mind, in order to amount to a National symbol, the real test shouldbe the power of evocation of the original concept of which the object issaid to be a symbol and not what the Government or the Legislaturehas laid down. I respectfully agree with the conclusion reached by thelearned Judges of the Allahabad High Court, viz., that the portraitof Mahatma Gandhi cannot be said to be a National symbol but the reason-ing which has appealed to me is different from the reasoning which appealedto the learned Judges of the Allahabad High Court; and it is only regardinga part of the reasoning that I am unable to agree.

In Sangappa v. Shivamurthiswamy, (3), it was held that the pictureof Mahatma Gandhi is not a National symbol. In order to constitute aNational symbol, the symbol must be something exponential of emblamatiedf the Nation and it cannot be seriously asserted that the picture ofMahatma Gandhi is a National symbol so tested; and it was held by theMysore High Court in that case that any display of the picture of MahatmaGandhi either in the processions or in the dramatic performances, willnot constitute either an appeal to a National symbol or its use so as toamount to a corrupt practice within the meaning of s.t23(3) of the Act.

A similar view has also appealed to the Punjab High Court in S. MaharSingh v. Umrao Singh (4) where a Division Bench of the Punjab HighCourt has held:

"A portrait of Mahatma Gandhi is not a National symbol, sincealthough he is popularly described and regarded as the fatherof this coun'rv, his long affiliation with the leadership of theCongress Partv in the struggle for independence give theCongress Partv the right to use his name or portrait in appealto the electors."

(O A.I.R. 1959 All, 42(s) A.T.R. T961 Mysore—irtf(4) A.I.R. 1961 Pub. 244

E.L.R.] B. P. HARJlVANDAS V, D. S. PARMAK I4I

In that case, the allegation was against the Congress Party and it wasalleged that the candidate put up by the Congress party had committeda corrupt practice by the use of the pictorial representation of MahatmaGandhi; and this argument was not accspted by the Punjab High Court.

A view to the contrary has been taken by the Election TribunalDharwar, in Desai Basawraj v. Dasankon Hassanseb and others (5) and atpage 390 of the report, the Tribunal observed:—

"The birthday of Mahatma Gandhi is observed as a National holidayor a public holiday under the Negotiable Instruments Act andthe picture of Mahatma Gandhi is hung in all the Governmentoffices at Government cost. In our opinion, therefore thephoto of Mahatma Gandhi is a National symbol."

With respect to the learned members of the Tribunal, it may be pointedout that the birthdays of many persons other than Mahatma Gandhi arealso observed as National holiday under the Negotiable Instruments Actand it cannot be sai3, for example, that any one of these individuals is somuch associated with the idea of the Nation as a whole that the use ofhis photograph would constitute a corrupt practice under s. 123(3). Thehanging of the pictures in Government offices at Government costs againis no criteria for deciding whether a particular pictorial representationamounts to a National symbol or not. In my opinion, the correct testcan only be the power of evocation of National ideas or idea of the Nationas a whole and then only the pictorial representation would amount to aNational symbol. It cannot be said in the case of Mahatma Gandhi thata mere pictorial representation of him evokes the ideas of the Nation as awhole and, therefore, even though there was a use by the respondent ofthe pictorial representation of Mahatma Gandhi, that use cannot be saidto be the use of a National symbol and the respondent cannot be said tohave committed the corrupt practice laid down in s. 123(3) of the Act.

As regards the account of election expenses it may be pointed out thatunder s.77 of the Act it has been provided that every candidate at an elec-tion shall, either by himself or by his election agent, keep a separate andcorrect account of all expenditure in connection with the election incurredor authorized by him or by his election agent between the date of publica-tion of the no'ification calling the eW;r>ti and the date of declaration ofthe result thereof, both dates inclusive; and sub-sec. (3) of s. 77 providesthat the total of the said expenditure <?h->!i not exceed such amount as maybe prescribed. Under the rule-makin~ r>r,wer conferred upon the Govern-ment by s.l69 of the Act, the Centra' Government has made rules knownas the Conduct of Elections Rules. i r iM- and rules 86 to 90 deal withelection expenses and under rule 90 (?V so far as the State of Gujaratis concerned, the upper limit of expend for election to a State LegislativeAssemW"' seat is fixed at Rs. 8000/-. ^Wefore under s. 77(3) read withrule 90f2), it is clear that no candid^ for the Legislative Assembly canspend more than Rs. 8000/- for hi* <^-tion expenses between the dateof the nublication of the Notification r^r^a the election and the date ofthe declaration of the result thereof. TT-"ier s.123(6) of the Act, it is acorrupt practice to incur or authorize f«-"*nditufe' in contravention of s.77

(*) 4 E. L. R. 380.

•"42 B, P- HARJIVANDAS V. D. S. PARMAR [VOL. XXXII

and, therefore, if it is established by the petitioner that the respondent hasincurred or authorized expenditure in excess of Rs. 8000/-, the corruptpractice defined in s. 123(6) of the Act can be said to have been committedand if this corrupt practice is found to have been committed by the res-pondent or by any person with his consent, his election is liable to bedeclared void under s,10O(l)(b). It is not the petitioner's case that thisparticular corrupt practice has been committed by the election agent of therespondent; and we have only to consider the respondent's own actions orthe actions of those who acted with the consent of the respondent.

Exhibit "B" is the statement of his election expenses filed by therespondent as required by law and the total of the election expenses dis-closed by him Exhibit B comes to Rs. 5.816.11P.

In order to show that over and above the items of expenditure whichare included by the respondent in his statement of election expenses, therespondent also incurred other expenditure! which he has not disclosed,the petitioner has relied upon four different items of expenditure. Firstis the item of expenditure for repairing certain motor-cars which theMehtaji of the respondent got repaired at the workshop of a mechanic atAhmedabad viz., Lalabhai Babulal Karachiwala, Petitioner's Witness No.4; and according to the evidence of this witness, a total amount of Rs.2,286.05 P. had been paid by the Mehtaji of the respondent to Lalabhaifor carrying out these repairs. The petitioner also relies upon three otheritems of expenditure which are not included in Ex. "B". It is allegedon behalf of the petitioner that the respondent got distributed free ofcharge copies of a newspaper called TJai-Hind' in Bavla and for this pur-pose he paid a total amount of Rs.85.1T toone Mulshanker Tribhovan-das Dave, a newspaper vendor selling newspapers in Bavla Town; andreliance has been placed by the petitioner on the evidence of Mulshankerfor proving this item of expenditure. It is further alleged by the petitionerthat for the purpose of carrying on his election propaganda, the respondenthad hired some cycles at Virmagam and the evidence of witness NagindasVadilal Parikh, petitioner's witness No. 8, and the entries in his BillBook, are relied upon to show that a sum of Rs. 120/- had been spentby the respondent for hiring these four cycles. The evidence of Ramji-bhai Dharamshibhai, Ismail Umar Rasulbhai Musabhai and SulemanKalubhai, is also sought to be relied upon by the petitioner in connectionwith the incurring of this expenditure of Rs. 120/-; and the last item ofexpenditure which has been relied upon by the petitioner in this connec-tion is the evidence of Somabhai Beherbhai Makwana, petitioner'switness No. 9. According to SomabTiai's evidence, a taxi driven bySomabhai, bearing No. GTD-7055 and belonging to one Khushalbhai washired by the respondent for the period from February 2, 1967 to February12, 1967, both days inclusive, and the respondent had paid in an aggregatesum of Rs. 600/- to witness Somabhai ancTThis Tfem is also relied as anundisclosed item of expenditure though it was incurred as part of theelection expenses of the respondent.

(After examining the evidence on the allegations that the Respondenthas incurred expenses by hiring taxi and repairing of a car, which amountshave not been included in his return of election expenses, the judgmentproceeded....) ,'

E.L.R.] B. P. HARJIVANDAS V. D. S. PARMAR I43

The question then arises whether the total amount of Rs. 2286-05 P.spent by the respondent for getting these cars repaired can be said to bepart of his election expenses. Under s. 77 of the Act, what is to bementioned in the statement of account is all "expenditure in connectionwith the election" and under rule 86, in the particulars of the electionexpenses, the nature of the expenditure has to be shown e.g. travelling,postage, printing etc. Under rule 86 it is not specifically mentioned thatunder the head "travelling" only the actual amount of hire charges orpetrol or oil bought for such cars and vehicles should be mentioned. Allthat rule 86(b) requires is that the accounts should clearly indicate thenature of the expenditure, the date on which the expenditure was incurredor authorized and the amount of expenditure. There is, therefore, nosubstance in the contention urged on behalf of the respondent that underthe rules, it was not necessary for the respondent to show the amountspent for repairs to motor-cars used in the election campaign of the res-pondent.

Relying on a decision of the Election Tribunal, Tanjore, in M. R.Meganathan v. K. T. Kosalram & Ors., (6) it was contended that theamounts spent for repairs to motor-cars need not be shown as part of theelection expenses. It is true that this decision is not of any High Courtbut the reasoning of this particular decision is sought to be relied uponbefore me. With respect to the members of the Tribunal, I am unableto accept their conclusion that the amounts spent for repairs are not re-quired to be shown as part of the election expenses. The question thatI have to ask myself in this connection is whether this amount was spentby the respondent as "expenditure in connection with the election", andif there is a direct connection between the amount spent for the repairsand the election campaign carried on by the respondent, then it can besaid to be "expenditure in connection with the election". Section 77 ofthe Act merely uses the words: "expenditure in connection with the elec-tion incurred or authorized by him (the candidate) or by his electionagent". The respondent himself has stated in his deposition that he him-self had not procured or obtained* any car by himself but the cars were

placed at his disposal from time to time by the Swatantra Party and ata time one or two cars were available to him for his use for the electioncampaign. In this connection it has been admitted by the respondent thathis understanding with the Swatantra Party was that the car r nd the drivershould be supplied by the Party and the respondent should bear the ex-penses for petrol, oil and for running repairs required for these cars duringthe period that the cars were at his disposal. "Now, in view of this ad-mission of the respondent that he had to pay for the running repairs of thecars placed at his disposal, I have to consider whether the amountof Rs. 2286.O5P. or any part thereof can be said to be expenditure inconnection with the election of the respondent. The respondent himselfhas included in Ex. "B" vouchers in connection with the repairs carriedout to Car No. GJA 7721 and for spare-parts supplied to this particularcar. Vouchers Nos. 56 and 57 part of Ex. B are in connection with therepairs carried out to this Car No. GJA 7721. It cannot, therefore, besaid that the item of repairs to cars used by the respondent during his elec-tion campaign was not an item of expenditure incurred by the respondentin connection with the election. The respondent's own conduct in includ-

<6) 9 E.L.R.242.

144 B- p« HARJIVANDAS V. D. S. PARMAR f VOL. XXXH

ing vouchers Nos. 56 and 57, being vouchers for repairs carried out toMotor car No. GJA 7721 used for his election campaign, clearly indicatesthat the respondent was willing to treat tne running repairs for cars used inhis election compaign as part of his election expenditure.

It was urged before me that the repairs which are mentioned in thebills in Ex. "C" are such as would ensure for the benefit for the owner of thecar even after the election campaign was over and the money spentfor those repairs cannot strictly be said to be part of the electionexpenses of the respondent. It is to be borne in mind that according tothe understanding between the respondent and the Swatantra Party, whosupplied the cars to him, the respondent was to pay for the running repairsof the cars and if these five cars for which repair-bills were shown in Ex."C" were to remain useful and available to the respondent for his electioncampaign, it was necessary for him to spend this amount to keep the carson the road. Immobilising of five cars out of the cars which were placedat his disposal would have seriously handicapped the respondent's electioncampaign and, therefore, to my mind, the amount spent by the respondentfor these repairs as shown in Ex. "C" was obviously expenditure incurredby the respondent in connection with his election. My conclusion, thereforeis that the amount of Rs. 2286.05 P. was part of the expenditure incurredor authorised by the respondent and should have been included by him inhis statement of election expenses. If this amount of Rs. 2286.05 P. isadded to Rs. 5816.11 P. already shown by the respondent as his electionexpenses, it is clear that the maximum limit of Rs. 8000/- fixed by theConduct of Electrons Rules has been exceeded by the respondent and,therefore, the respondent had either incurred or authorized expenditure inexcess of Rs. 8000/- and thereby committed the corrupt practice set out ins- 123 (6) of the Act.

Since I have come to the conclusion that the respondent himself hadincurred or authorized this expenditure, it is clear that he himself hascommitted this corrupt practice and, therefore, the case falls within s. 100(1) (b) of the Act. I have, therefore, come to the conclusion that theelection of the respondent should be set aside under the provisions of s.100 (1) (b) of the Act. In the instant case so far as this particularcorrupt practice is conerned, the, provisions of s. 100 (2) of the Actwere never invoked and under these circumstances so far as this particularcorrupt 'practice is concerned, there is no scope of operation of s. 100 (2)of the Act. I have, therefore, not taken into consideration the provisions6t that sub-section for arriving at mv conclusion.

I, therefore, answer the issues as follows:—

Issue No. (1) : Not pressed

Issue No.(2) : In the affirmative p« to both parts.

Issue No. (3) In the negative as to first part; second part does not arise.

No. (4-} • In the negative.

E.L.R.] B. F . HARJIVANDAS V. D. S. PARMAR

Issue No. (5) : The respondent used five cars Nos. GJA3695 GJA3225GJA 5762 GJA2105 and GJE 7246 in connection withhis election campaign during the relevant period, so far asfirst part is concerned. Second part in the affirmative. Heauthorised expenditure of Rs. 2286-05 P. Third part in theaffirmative.

Issue No. (6) : In the negative; but the name should be Somabhat Bech-ardas Makwana and not Narbheram Khimdas Kasuardi.

Issue No. (7) : In the negative; because the publication was in December1966.

Issue No.(8) : In the affirmative as to both parts.

Issue No. (9) : Not pressed.

The declaration sought for in the petition in prayer (a) is granted andit is declared that the election of the respondent as member of the oujaratLegislative Assembly from Bavla Constituency is void. The respondentto pay the costs to this petition to the petitioner. Advocates' fees fixedat Rs 750/- (Rupees Seven Hundred Fifty).

Mr. Patel on behalf of tihe respondent applies for stay of the orderunder s. 116 B of the Act, Mr. Patel on behalf of the respondent undertakesthat his client will not attend any sessions of the Gujarat State LegislativeAssembly except for the restricted purpose of preventing disqualificationbeing incurred under the relevant provision of law. Mr. Patel furtherundertakes that his client will not draw any remuneration; nor work inany other manner as the member of the State Legislature. On these termsand conditions the stay of the operation of this Order is granted for a periodof eight weeks from the date of supply of the certified copy of this judg-ment to the respondent in order to enable the respondent to aptval tothe Supreme Court and to obtain an order of stay from the Supreme Court.

Petition allowed.JUDGMENT

Review Application No. 1 of 1967 (December 12, 1967). Thisapplication has been filed by the oriiinal respondent in Election PetitiorNo. 24 of 1967, and he has asked tb^t the judgment and order passedin this Election Petition on October 23 1967 be reviewed. Bv thajudgment and order, I had declared *^.t the election of the region den;to the Gujarat State Legislative A.wmh1v from Bavla constituen-v *o bevoid and T h°d also passed orders cf ^cts etc. The present application hasbeen presented on November 17, 1967 asking that the judgment T W M ! inthe election netition be reviewed an* the main ground on whir*> ">'!anceis placed i" ^mport of the application i* .of an error apparent on th- f-tce of•the record The main ground on wb'ch *he error apparent on th" f*?e ofthe record is "leaded is that an amount of Rs. 125/- which wa« nV" -sitedby the respondent at the time when *>i» filed his nomination panf-r «<os in-cluded throush an error, according to him. in the total sum wh' h *"• hadshown a« v:° o1ection expenses. Bv **«> ;-H<nnent and order in t^:< '•'»"tionpetition, T *""1 found that if the svm of ws 2286-05 P. which ^ovU havebeen mcli'd"--* in the statement cf '•'"'••ion expenses and which wie n o tin fact included were to be added to the adimitted total election

I 4 6 B. P . HARJ1VANDAS V. D. S. PARMAR [ VOL. XXXII

expenses as shown in the statement the aggregate would exceed,the maximum of Rs. 8000/- which has been fixed by law as the total amountof expenniture permisible to a candidate contesting an election to theGujarat State Legislative Assembly seat. At the outset, I must make itclear that when the arguments in the main petition were heard before me,nobody had pointed out this item of Rs. 125/- and nobody had argued onthe footing that this sum of Rs. 125/- should be deducted from the aggre-gate of Rs. 581,6-11 P. shown as the total amount of expenses incurredor authorised by the original respondent as "his election expenses.

The main question that I have to consider before going to .the merits ofthe case as whether a review application is maintainable in an election peti-tion filed under the provisions of the Representation of the People Act,1951. The Representation of the People Act, 1951, has been amended in1966 and before the amendment, the provision was that a petition challeng-ing an election had to be made to the Election Commission and the Elec-tion Commission would refer the particular petition to an Election Tribu-nal. Against the decision of the Election Tribunal, there was an appealprovided to the High Court and against the decision of the High Court anappeal could lie under the provisions of the Constitution to the SupremeCourt. After the amendment of 1966, an election petition has to be fileddirectly before the High Court and against the decision of the High Courtunder section 98 or 99 of the Representation of the People Act, an appealhas been provided by section 116A to the Supreme Court. With thisdifference, the rest of the scheme for the trial of these election petitions hasremained the same, the only difference being that instead of the petitionbeing filed before the Election Commission, Election Commission referringit to the Tribunal and the Tribunal trying the petition, now the petition liesdirectly to the High Court and instead of an appeal lying to the HighCourt, now the High Court tries the election petition as a Court of first inst-ance and then an appeal lies directly to the Supreme Court under the pro-visions of the Representation of the People Act.

So far as the Act prior to the amendment of 1966 was concerned therewas a decision of a Division Bench of the Bombay High Court in NarayanYeshwant Nene v. Rajaram Balkrishna,(l), where the Division Benchconsisting of Shah and Patel JJ. held that there was no scope for reviewin a matter heard by the High Court under the Representation of the PeopleAct. It was held by the Division Bench that there was no scope for reviewof an order passed by the High Court while disposing of an appeal againsta decision of Election Tribunal, and in paragraph 6 at page 23 of the report,Shah J. delivering the judgment of the Division Bench, has observed, "TheAct does not provide for any review of the judgment of this Court on anyground, and it is well settled that a Court is not invested with a power unlesssuch power is expressly conferred." This decision of the Division Benchof the Bombay High Court having been delivered on April 23, 1959 andthus prior to the bifurcation of the bilingual State of Bombay is bindingon me and if it had not been for some subsequent decisions of the SupremeCourt, I would have held without any further thought, following this deci-sion straight away that under the Representation of the People Act, thereis no scope for review of a decision once given by the High Court.

(7) A.I.R. 1961 Bom.

E.L.R.l B. I'. HARJlVANDAS V. D. S. PARMAR 147

The same view was taken by a Division Bench of the Allahabad HighCourt in Brij Mohan Lai v. Election Tribunal and others^8) and there thequestion arose before the Allahabad Hdgh Court whether it was open toan Election Tribunal to review its own order and set aside its earlier orders.After examining the decisions of the Supreme Court in K. Kamaraja Nadarv. Kunju Thevar (9) and others decisions, the Division Bench of the Allaha-bad High Court held that the Tribunal constituted under the Representationof the People Act had no power of reviewing its own decision. Dhavan J,observed at page 98 of the report—

'"But the power of review whether by the appellate court or thecourt which made the decision must be conferred by statute.An appeal is really a view for both require the exercise ofessentially the same kind of power, namely, to reconsider aprevious decision and this power may be exercised by thesame Court or High Court in appeal. Therefore, if a rightof appeal has to be conferred by statute so has the power ofreview."

It was contended on behalf of the original respondent in the electionpetition that after the subsequent decisions of the Supreme Court, a differ-ent view regarding the power of review by a High Court should be taken.In Shivdeo Singh and others v. State of Punjab and others,(10), the SupremeCourt has held that the power of review inheres in every Court of plenaryjurisdiction to prevent miscarriage of justice or to correct grave and pal-pable errors committed by it. Now, in that particular case, the SupremeCourt was dealing with the power of the High Court to review its owndecision while exercising the powers under Article 226 of the Constitutionof India, and in paragraph 8 at page 1911 the Supreme Court has dealtwith this point. It was urged before the Supreme Court that Article 226of the Constitution did not confer a power upon the High Court to reviewits own order and therefore the order passed by the Punjab High Court waswithout jurisdiction. Dealing with this contention, the Supreme Courtobserved:—

"It is sufficient (o say that there is nothing in Art. 226 of theConstitution to preclude a High Court from exercising thepower of review which inheres in every court of plenaryjurisdiction to prevent miscariage of justice or to correct gaveand palpable errors committed by it."

Basing his argument on this decision of the Supreme Court, learned coun-sel for the original respondent argued before me that even in the trial of anelection petition as a Court of plenary jurisdiction, the High Court shouldexercise the power of review which, according to this decision of the SupremeCourt, inheres in every Court of plenary jurisdiction. In reinforcement ofhis argument, learned counsel also relied upon the judgment of the SupremeCourt in Manohar Lai Chopra v. Rai Bahadur Rao Raja Seth Hiralal, (11).In that case, the Supreme Court has held that every Court constituted totry civil matters has certain inherent powers and section 151 recognisesthe existence of such inherent powers. It was held by the. Supreme Court

(a) 1966 Dolua's eicetion cases, 93(») A.I.R. 1958 S.C. 687(») AJ.R. 1963 S.C. 1909^-1) A.I/R. 1962 S.C. <27

148 B. P. HARJIVANDAS V, D. S. PARMAR VOL. XXXII

in that case that the inherent power has not been conferred upon theCourt. It is the power inherent in the Court by virtue of its duty todo justice to parties before it and section 151 of the Civil ProcedureCode itself recognises the existence of the inherent powers of the High Courtand hence there is no question of implying any powers outside the limitsof the Code. Learned counsel, in the light of these two decisions of theSupreme Court, argued that it was necessary for the ends of justice thatthis particular order passed by me on October 23, 1967 should be reviewed.

Under section 87 (1) of the Representation of the People Act, 1951, ithas been provided that subject to the provisions of this Act and of any rulesmade therunder, every election petition shall be tried by the High Court,as nearly as may be, in accordance with the procedure applicable under theCode of Civil Procedure, 1908 to the trial of suits. The argument adva-nced before me was that since the procedure applicable to the trial of anelection petition is the procedure applicable to the trial of suits as laiddown in section 87 (1), the provisions of Order 20, rule 3 of the Code ofCivil Procedure are thus incorporated in the Representation of the PeopleAct. and it was contended that just as under rule 3 of Order 20, the judg-ment in every suit has to be dated and signed by the Judge in open Courtat the time of pronouncing it and when once signed, shall not afterwardsbe altered or added to, save as provided by section 152 or on review,similarly a judgement in election petition also cannot be altered or added tosave for clerical errors contemplated by section 152 of the Code of CivilProcedure or on review. Now, if this argument of learned counsel werecorrect, then there was no necessity in the Civil Procedure Code toprovide a special procedure for review and also to lay down the terms andconditions on which review can be granted. Section 114 of the Code pro-vides that any person considering himself aggrieved by a decree or orderfrom which an appeal is allowed by the Code, but from which no appealhas been preferred, may apply for a review of judgment to the Court whichpassed the decree or made the order, and the Court may make such orderthereon as it thinks fit. Order 47 then lays down the procedure to be followedby the Court when an application for review of judgment has been madebefore it. It is clear, therefore, that if the provision for review had not beenmade by section 114 of the Code, the Court would not have the powerexcept the inherent power under section 151 of the Code, to review itsown judgment.

It is to be borne in mind that, as observed by the Supreme Court inInamati Mallappa Basappa v. Desai Basavraj Ayyappa and others, (12)an election contest is not an action at law or a suit in equity but is a purelystatutory proceeding unknown to the common law and the Court possessesno common law power. An election petition is not a matter inwhich the only persons interested are candidates who strove against eachother at the election. The public also are substantially interested in it:and this is not merely in the sense that an election has news value. Anelection is an essential part of the democratic process. An electionpetition is not a suit between two persons, but is a proceeding inwhich the constituency itself is the principal party intersted. It is thisinterest of the constitnency as a whole which investes the proceedings be-fore the Election Tribunals with a characteristic of their own and differen-tiates them from ordinary civil proceedings. To the same effect are the obser-

(«) A.I.R. 1958 S.C. 6Q«.

E.L.R.] B. P. HARJlVANDAS V. D. S. PARMAR 149

vations of Supreme Court in K. Kamaraj Nodar v. Kimju Thevar and others(9), paragraphs 20 and 21 at page 693. There it was observed that after anexamination of the different provisions of the Constitution and the Repres-entation of the People Act, "These provisions go to show that 'an electioncontest is not an action at law or a suit in equity but is a purely statutoryproceeeding unknown to the common law and that the Court possesses nocommon law power'." According to these two decisions of the SupremeCourt, namely, Mcillapa Basappa's case and K. Kamaraj Nadar's case, it isclear, apart from whatever the power statute itself has conferred, that aTribunal or a High Court trying an election petition has no powers of theordinary Court while disposing of an election petition.

Learned counsel for the original respondent urged before me that theword "trial" occurring in section 87 must be interpreted to mean theentire proceedings before the Tribunal, that is, before the High Court fromthe time when the petition is presented before it until the pronouncementof the judgment or the decision, and in this connection, reliance was placedon the decsion of Venkatrama Ayyar J. in Harish Chandra Bajpai v.Triloki Singh(13). It is true that the trial of an election petition commen-ces with the presentation of the petition and continues till the stage of thepronouncement of the judgment, but that does not by necessary implicationconfer upon the High Court the power to review its own judgment in anelection petition.

Reliance was next sought to be placed by the learned advocate for theoriginal respondent on a decision of a Division Bench of our High Court inLetters Patent Appeals Nos- 1, 2 and 3 of 1967, being the, judgment deli-vered by the Division Bench on September, 29, 1967. The judgment ofthe Division Bench was delivered by Bhagwati C. J. in that case, thequestion arose before the Division Bench as to whether the Representa-tion of the People Act is self contained comprehensive code dealing withelection petitions and the Division Bench while dealing with Ground No.(5), held that this was merely an extension of the existing jurisdictionof the High Court and there was no question of the Representationof the People Act constituting a self-contained comprehencive code deal-ing with the trial of election petitions. Before the Division Bench in thoseLetters Patent Appeals, the main question was whether there could be anappeal under Clause 15 of the Letters Patent of this High Court in amatter which did not fall within the scope of section 98 or 99 of theRepresentation of the People Act, and the Division Bench held that ifan order passed by a single judge of the High Court amounted to a judg-ment within the meaning of clause 15 of the Latters Patent but at thesame time fell outside the ambit of section 98 or 99, then an appeal couldlie to the Division Bench against such judgment or decision of a singleJudge. But the question with which I am concerned in the present petitionwas not dealt with by the Division Bench. Merely because there is anextension of the existing jurisdiction, it does not necessarily follow that thepower of review in election matters hasfbeen automatically conferredupon the High Coufit.

I may point out that even though under the Code of Criminal Procedurerecognition is given to the inherent powers of the High Court, it was heldby a Division Bench of our High Court an Vafati Gokul v. The State ofGujarat, (14) that the provision in section 561A of the Criminal Procedure

(») A.I.R. 1958 S.C. 687(«)AJ.R. 1957 S.C. 444.(") 7 G.L.R. 1114.

150 B. P. HARJIVANDAS V. D. S. PARMAR [ VOL. XXXII

Code is only an enabling provision and the inherent powers cannot be usedto override the express provisions of law. It was further held that theinherent powers of the High Court cannot be invoked an order to cutacross the powers conferred by the Criminal Procedure Code. It wasalso held that it was not open to the High Court to review or revise itsown decision. I was a Member of that Division Bench and followingcertain observations of Bhagwati J. in the case of U. J. S. Chopra v.State of Bombay, (15), the Division Bench held that the High Court hadno power of reviewing its own judgment in a criminal matter. In U.J.S.Chopra's case, Bhagwati J., delivering the judgment on behalf of himselfand Imam J., observed at page 648 of the report as follows:—

"Once such a judgment has been pronounced by the High Courteither in the exercise of its appellate or its revisional jurisdic-tion no review or revision can be entertained against thatjudgment and there is no provision in the Criminal Proce-dure Code which would enable even the- High Court to re-view the same or to exercise revisional jurisdiction over thesame."

It is, therefore, clear that though there are inherent powers recognised by theCode of Criminal Procedure so far as section 561A is concerned, accordingto this decision of the Sjupreme Court, the High Court had no power toreview its own decision in any criminal appeal or criminal revision applica-tion.

It is, therefore, clear that unless the statute which extends the jurisdic-tion of an existing Court to deal with a particular type of matters confersalso at the same time a power of reviewing its own decision in such matters,the inherent powers of the Court cannot be extended to confer the powerof review upon such Court. The distinction between creating a new typeof action and conferring a right upon a citizen or a class of citizens whichcan be enforced in a Court of law is well recognised. In the instant case,it is not as if a new right has been conferred upon the citizen which rightis to be enforced by the ordinary Courts of the country, but what hashappened is that Legislature by enacting the provisions of the Representa-tion of the People Act, 1951 has conferred a special type of jurisdictionupon the High Court, namely, the jurisdiction to try and dispose of electionpetitions. These petitions have to be tried and disposed of according tothe provisions laid down in the Act and in strict accordance with theAct. The conclusion that may be reached by the High Court while dis-posing of an election petition becomes operative under section 107 of theRepresentation of the People Act, 1951, as soon as it is pronounced bythe High Court when the order of the High Court is under section 98 orsection 99. Therefore, when I passed the order on October 23, 1967,setting aside the election of the original respondent to the Gujarat StateLegislative Assembly, it meant that as soon as the judgment was prono-unced on October 23, 1967 it took effect and his election became void. Byvirtue of the stay granted by me under section 116B the operation of thatorder was stayed but the order still remained and it is clear that if thatorder were to be reviewed, by virtue of the powers referred to in section 87(1) under the procedure applicable to the trial of suits under the Code ofCivil Procedure, a treat deal of mischief would be created. Distinction

( " ) A . I . R . !'•.•<;.s \ . ' < 3 : -

• E.L.R.J B. P. HARJIVANDAS V. D. S. PARMAR

must be made between the power of reviewing one's own decision and theprocedure of reviewing the decision. Section 87(1) provides for theprocedure that is to be followed in the trial of election petitionc and thepower of review which must in terms be conferred has not been inferreden the High Court. In my opinion, therefore, even though the decisioncf the Supreme Court in Shivdeo Singh's case (supra) says that every Courtcf plenary jurisdiction has got inherent power of reviewing its own deci-sion if necessary for the ends of justice, in view of the other decisions whichI have discussed in the course of this judgment, it is clear that the HighCourt h?s no power of reviewing its own decision given under section 98cr 99 0/ the Representation of the People Act, 1951.

The result, therefore, is that since the High Court has no power ofreviewing its own decision this review application fails and is dismissed.There will be no order as to costs so far as this review application is con-cerned.

Application dismissed.

1 B.C.—11

IN THE HIGH COURT OF GUJARAT AT AHMEBABAETNARSINHBHAI KARSANBHAI MAKWANA

V.

JESINGBHAI GOVINDBHAI PARMAR & ANR.

(VAKIL J.)

October 23rd and November 28th, 1967

Representation of the People Act, 1951,. ss. 11, 83(1) (6) iQO(l>-(b), 100(1) (d) (H) , 100(1) (c)—Corrupt practice-Reserved'seat—Constitution Scheduled Castes Order, 1950, Sections 2 ami 3, ,Scope of—Caste described in school certificate—Whether conclusiveevidence of caste of candidate—Nomination paper prima facie vaiid—-No objection raised—Whether a case of improper acceptance amderSection 100 (1) (c) whether principle of estoppel appliesVehicles lent gratituously to a candidate—Whether reasonable hirecharges could be charged to the election expenses of candidate—Burden of proof—Petitioner's failure to prove the charge of corruptpractice on the plea that the facts were within the knowledge of therespondent—Whether the burden shifts to respondent—Corrupt prac-tice alleged under Sub-Section (6) of Section 123—Whether proofnecessary that excess expenditure incurred with the consent of therespondent or his agent—Meaning of expressions "authorised" cmd"consent" in section 123(6)—Plea of the petitioner alleging one kindof corrupt practice—Whether can be allowed to raise another kindof corrupt practice under Section 123(6)—Plea of improper accep-tance of nomination of respondent and votes cast in His favour hetreated as invalid votes—Whether sustainable.

The petitioner, a defeated candidate, challenged the election of triefirst respondent alleging inter alia that he was a Christian and thereforewas not qualified to be chosen to fill the seat reserved for the SchedaleSCastes; that he incurred election expenses in excess of the authorised fimftand that he committed various other corrupt practices.

HELD.—Dismissing the petition: On the facts, the petitioner had failedto establish any of the grounds he had alleged in the petition.

(i) The evidence of the caste indicated in a school' certificate cannotbe looked at in isolation nor can it be deemed conclusive evidence on thepoint and has to be evaluated in the context of and in the light of otherevidence on the record. A person who is a member of the ScfieifaledCaste and who professes Hindu and Sikh religion is entitled to lhe privi-leges meant for members of Scheduled Castes. A person professing anyother religion will not be entitled to be treated as a member of the Sche-duled Caste as provided under sections 2 and 3 of the Constitution (Sche-duled Castes) Order, 1950.

152

E.L.R.] N. K. MAKWANA V. J . G. PARMAR 153

Punjabhrao v. Dr. D. P. Meshram and others, A.I.R. 1965 SC 1179;Brij Mohan Singh v. Priya Brat Namin Sinha and others, A.I.R. 1965S.C. 282; Vermani v. Vermani, A.I.R. 1943 Lahore 51, Durga PrashadaRao v. Sudarsnaswami, A.I.R. 1940 Mad. 513; Venkataramayya v.Seshayya, A.I.R. 1942, Mad. 193; Dippala Suri Dora v. V. V. Gin, A.I.R.1958,'Andhra Pradesh 724; G. Michael v. S. Venkateswaran A.I.R. 1952Mad. 474; referred to.

(ii) If the nomination paper prima facie does not disclose anyillegality or want of qualification of a candidate and no objection is taken,then the Returning Officer has to accept that nomination and it is not acase of improper acceptance of nomination within the meaning of section1 0 0 ( l ) ( c ) . It is then a case falling within section 100(1) (d) (ii) namelynon-compliance with the provisions "of the Constitution. Obviously, if thefirst respondent was not a member of the Scheduled Caste, he was notqualified under the provisions of the Constitution read with Constitution(Scheduled Castes) Order, 1950. When a person is not qualified to standas a candidate, the Court has got to set aside his election as law casts aduty on the Court to do so. Under the circumstances whether an objectionis taken or not makes no difference and the principle of estoppel has noplace in a case of this nature.

Durga Shankar v. Thakur Baghural Singh, E.L.R. 494; referred to.

(iii) In the case of use of vehicles which were lent gratituously to acandidate by his friends, relatives or by the party organisation to assistthe candidate in his election, he is not bound to include in his electionexpenses any estimated figure for such use as election expenditure incurredor authorised by the candidate.

Vasanthapai v. Dr. V. K. John, XII E.L.R. 107; M. R. Meganathan..v. K. T. Kasalram, IK E.L.R. 242; Muthiah Chettiar v. Ganesan, A.I.R.1960 Madras 85; Bananiava Singh v. Baijnath Singh, A.I.R. 1954, S.C.749; Joseph Foster Wilson v. Sir Christopher Furness, 6 O' Malley andHardcastle's Report of Election Case P.I.; Sheopat Singh v. HarishChandra A.I.R. 1958, Rajasthan 324; referred to.

(iv) The petitioner could not plead that it was not possible for himto prove and discharge his burden of proof on the ground that the factswere with the party organisation of the first respondent and that the factswere within his special knowledge and therefore the burden had shiftedon to the first respondent. Such reasoning cannot lie in the mouth of aperson trying to establish a charge of corrupt practice. Difficulty of proofis no ground to be considered in a proceeding of a quasi-criminal nature.The petitioner must prove or he fails.

Jagdev Singh v. Pralap Singh, A.I.R. 1965 S.C. 183 referred to.

(v) Under sub-section 6 of section 123 of the Act, even if the corruptpractice is established, the election of the first respondent cannot bedeclared void under section 100(1) (b) , unless it is proved that he in-curred expenditure beyond the prescribed limit himself or through hiselection agent, or by any other persons with his or his agent's consent.

3 5 4 N - K- MAKWANA V. J . G. PARMAR [VOL. XXXII

'(vi) The most reasonable differentiation that can be thought of bet-ween the two expressions "authorised" and 'consent" in section 123 (6)is that "authorisation" implies the right to authorise expenditure on hisbehalf with the result of pecuniary liability. While with regard to the•expression "consent" there does not arise by necessary implication anysuch pecuniary liability. He merely agrees when he consents that nothingmay be done and raises no objection to its being done. By merely soconsenting, no pecuniary liability by any necessary implication follows.

G. Vasantha Pai v. Srinivasan, XXII, E.L.R. 221; Narasimhan v. M. G.Natesan Chettiar, XX E.L.R. P. 1., Muthia Chetiiar v. Saw, Ganesan;XXI, E.L.R. 215; Sheopatsingh v. Jorsang, XVIII E.L.R. 100 referred to.

(vii) The petitioner cannot be allowed to plead one kind of corruptpractice and try to prove another kind of corrupt practice.

(viii) No petition can be dismissed for want of particulars or non-compliance with section 83(1) (b). If the Court finds that no particularsare given or better particulars are required and an opportunity has to begiven to the petitioner to comply with it and in case of failure oifly thecorrupt practice alleged may not be allowed to be proved.

(ix) The petitioner cannot claim that all the votes cast in favour ofthe first respondent should be treated as invalid votes or thrown awayvotes on the ground that the nomination of the first respondent was impro-perly accepted and therefore the petitioner should be declared elected.

Kashav Lakshman Borkar v. Dr. D. I. Ananda, XXI E.L.R. 466;

referred to.

Election Petition No. 8 of 1967.

K. G. Vakharia for the Petitioner.

M. R. Oza with S. B. Najumdar and B. S. Kapadia for RespondentNo. 1.

JUDGMENT

VAKIL J.—This Election Petition presented on April 7, 1967, callsin question the election of respondent No. 1 Jeisinghbhai GovindbhaiParmar to the Guajrat State Legislative Assembly in the General Electionheld in February 1967. Petitioner Narsinhbhai Karsanbhai Makwana isa candidate of Praja Socialist Party; respondent No. 1 as a candidate of theCongress Party and respondent No. 2 Naranbhai Ichharam Solanki as in-dependent candidate contested the election from the Kankaria LegislativeAssembly Constituency. No. 65. There were three other candidates whohad filed nomination papers but they withdrew their candidate within thetime prescribed. All the three candidates claimed to be belonging toScheduled Caste in this constituency. No objections were raised regardingthe validity of the nomination papers filed either of these three candidates.On the 23rd of February, 1967, the result of the poll was declared and res-pondent No. 1 was declared to be elected having secured 19620 votes,petitioner secured 15874 votes and respondent No. 2 could get only 5202votes. These are undisputed facts.

E.L.R.] N. K. MAKWANA V. J. G. PARMAR 155

The petitioner challenged the election of respondent No. 1 on threegrounds that:—

H ) On the date of his election Respondent No. 1 was not qualifiedto be chosen to fill the seat which was reserved for the SchedukdCaste as he did not belong to any of the caste mentioned underthe Constitution in Schedule Caste Order 1950. RespondentNo 1 was a Christian, therefore, nomination paper of the respon-dent No. 1 was improperly accepted which materially affectedthe result of the election in so far as it related to respondentNo. 1 the returned candidate;

(ii) The respondent No. 1 has committed corrupt practice undetSub-section (6) of Section 123 of the Representation of thePeople Act, 1951 (hereinafter referred to as the Act) of incur-ring and authorizing expenditure in contravention of Section 77of the Act read with Rule 86 and 90 of the Conduct of Elec-tions Rules, 1961 inasmuch as the respondent No. 1 incurredor authorised expenditure in excess of permissable limit ofRs. 8000/-;

(iii) The respondent No.l, his agents and other person*, with theconsent of respondent No. 1 had obtained and procuredassistance for the furtherance of the prospects of the elec-tion of the respondent No. 1 from the persons in theservice of the Government and belonging to the category ofGazetted Officers, member of Armed Forces, members of PoliceForce, Excise Officers and a Revenue Officer and thuscommitted a corrupt practice under section 123 (7) .

In support of these grounds of challenge, petitioner has given particluarsand instances to which I prefer to make reference when I deal with and dis-cuss these individual grounds and the specific issues and cover these grounds.Suffice it to state here that on these grounds the petitioner has prayed thatthe election of respondent No. 1 be declared void and petitioner be declaredto have been duly elected a member of the Gujarat State Legislative Assem-bly and he be paid costs of the petition.

Respondent No. 1 has filed his written statement and inter alia,stated that the allegation that he was not the member of theScheduled Caste of Vankar and that he is a Christian is false.He is a Hindu and belongs to tri3 Scheduled Caste of 'Vankar' and assuch he was entitled to stand as a candidate for the seat reserved for theScheduled Caste in the Kankaria Legislative Assembly Constituency No.65 for Gujara- State Legis'ative Assembly. No objection was raised bythe petitioner or any one else on this ground before "the Returning Officerwhen the scrutiny of the nomination paper was made and now petitioneris not entitled to challenge his election on the ground that he was notqualified to stand as a candidate for that seat reserved for the ScheduledCaste. He has no personal knowledge that petitioner himself is a memberof Scheduled Caste and, therefore, the petitioner should prove the fact.Hespondent No. 1 in his written statement has given detailed particulars tosupport his version and countered the particulars given by the petitionerin support of his allegation, to which I shall refer as and when I deal withHie relevant issues. The respondent No. 1 has also denied that he hadcommitted corrupt practice of having incurred or authorised expenses for

156 N. K. MAKWANA V. J . O. PARMAR [VOL. XXXII

his election work ecxceeding the prescribed limit of Rs. 8,000. Accordingto him the total expenses incurred was only about Rs. 7,500 as shown by.him in the Return that he had filed in accordance with the provisions of theAct and the Conduct of Elections Rules and that he had also produced thevouchers to prove that fact before the District Election Commissioner. Hewas an active member of Majur Mahajan Sangh and he was one of the fourcandidates for the Assembly as the official-candidate of the Majur Mahajanon Congress tickets for four different constituencies. Majur Mahajan hadalso put up one candidate for the Parliamentary Constituency. MajurMahajan had incurred all the expenses in respect of the election of all thefive candidates. Respondent No. 1, therefore, had not incurred any expen-ses from his own pocket. It is his say that, under the circumstances certainexpenditure items were covered by consolidated bills and receipts of expensesand the amounts of these consolidated bills and receipts were sub-dividedinto various constituencies according to the actual expenditure incurred inthe constituencies and that break-up figure in respect of respondent No. l'sconstituency is mentioned in the Return filed by him. In the remarkscolumn of the Return are mentioned the consolidated bills. Similarly, theReturn filed by other candidates supported by the Majur Mahajan have alsofollowed the same method in filling their Returns and the same consolidatedreceipts are shown in the remarks column. The original bills and receiptswere produced with the Return filed by the respondent No. 1. He has thengiven in his written statement detailed explanation in respect of the parti-culars of the allegation with regard to this corrupt practice but at this stagethey need not be mentioned. As regards the third ground of allegation, thecase of the respondent No. 1 in his written statement is that it is not truethat he or his agents or any other person with his consent had obtained orprocured assistance for the furtherance of the prospect in the election fromthe person in the service of Government. He has made specific denials asregards the two instances given by the petitioner. He has further deniedthat but for the alleged corrupt practice or illegal acceptance of the nomi-nation paper, petitioner would have succeeded in securing majority ofvotes.

Respondent No. 2 has filed a short written statement. He has averredthat if the petitioner succeeded in proving various allegations made in thepetition then the election of the first respondent would be liable to be setaside on those grounds. He has denied certain averments made in the peti-tion in ground No. 8 which are directed against him. I do not find it neces-sary at all to deal with the averments of the petitioner because no sub-missions were based thereon before me.

My learned Brother Shelat J. who tiealt with the petition at that stagelias raised the following issues:—

(1) Is it proved that the petition suffers from non-joinder of neces-sary parties and liable to be dismissed as suggested in para 2of the written statement?

(2) Is it proved that the affidavits filed by the petitioner are notlegal and proper?

(3) If so, what is its effect?

<4) Is it proved that the petition is not verified as required by sec-tion 83, sub-section (2) of the Representation of the PeopleAct, 1951? If so, what is its effect?

HEX.BJ N. K. MAKWANA V. J . G. PARMAR 157

C5-) "Whether the petitioner proves that the petition is filed in time?

><6) Whether the petition does not comply with the provisions ofsection 83(1) (b) of the Representation of the People Act,1951?

((7) Whether the petitioner proves that he and respondent No. 2are the members of the Scheduled Caste as alleged in para 6 ofthe petition? If not, what is its effect?

(<8) Does the petitioner prove that the respondent No. 1 was notqualified or was disqualified to be chosen to fill a seat on thedate of his election as a Returned Candidate from KankariaLegislative Assembly Constituency?

f 9) Whether the petitioner proves that the respondent No. 1 is nota member of a Caste i.e. Vankar Caste, but is a Christian asalleged? If yes, what is its effect?

110) Whether the petitioner is not estopped from raising the point ofimproper acceptance of nomination Form of respondent No. 1lor the first time in the election petition on the points men-tioned in para 15(8) of the written statement?

f l l ) Does the petitioner prove that the result of the election is?materially affected on account of the alleged improper accept-ance of the nomination form of the respondent No. 1?

P 2 ) Does the petitioner prove that the respondent No. 1 has com-mitted a corrupt practice of incurring and authorizing expend' •Jure in contravention of section 77 of the Representation ofthe People Act, 1951, read with Rules 86 and 90 of the Con-

•duct of Elections Rules, 1961, as alleged?

113) Doe, the petitioner prove that the respondent No. 1 has sub-mitted a false return as to his expenditure for the election andthat he has produced vouchers which show the amount of aboutRs. 14,000 incurred and authorised by him as alleged?

£14) Does the petitioner prove that the respondent No. 1 has in-curred and authorised the expenditure of hiring six taxies,employing three private cars and spending about Rs. 10,000 forpetrol and oil and about Rs. 1,000 for the salaries of the driversas alleged?

f ! 5 ) Does the petitioner prove that the respondent No. 1 has spentabout Rs. 1,800 for the erection of 50 Mandaps on the PollingDay as alleged?

<16) Does the petitioner prove that the respondent No. 1 has incurredthe expenditure of about Rs. 1,000 for printing, which he has.not allegedly shown in his election accounts.

Whether the petitioner proves that the respondent No. 1, hisagent and other persons with the consent of respondent No. 1have obtained and procured the assistance for the furtheranceof the prospect of respondent No. l 's election from the personsIn the service of Government and belonging to the category ofthe officers as alleged in ground No. 1 of the pe-tition?

- I 5 8 N. K. MAKWANA V. J . G. PARMAR [VOL. XXXfc.

(18) Whether the petitioner proves that Jethalal B. Jadav is serving,in Income Tax Department as alleged and whether he workedor canvassed for the election of respondent No. 1 as alleged?And whether he was the Secretary of the Backward Class Elec-toral Council as alleged in sub-para (A) of ground No. 6 ofpara 7 of the petition?

(19) Whether the petitioner proves that Shri Dahyabhai ShanabhaiPatel is a Home Guard Officer and that the said post is a postof a Gazetted Officer of the Armed Forces of the Union orthe Police Force as mentioned in sub-section (7) of Section 123of the Representation of the People Act, 1951 as alleged? Ifyes, whether the petitioner proves that Shvi Dahyabhai hasworked for the furtherance of the election prospect of respon-dent No. 1 as alleged in sub-para (B) of ground No. 6 of thepetition?

(20) Whether the petitioner proves that respondent No. 1, his agentand any other person with his consent have directly or indirectlyinterfered with or attempted to interfere with the free exerciseof the electoral right as alleged in ground Nc. 7 and as detailedin paras (a) and (b) thereof in the petition?

(21) Does the petitioner prove that Shri Tulsidas Hamirdas Khojani,an alleged agent .of the respondent No. 1 along with 50 to 60alleged Congress workers disturbed the public meeting of thepetitioner and Shri Karsandas Parmar on 18th February 1967and threatened the persons present there with serious conse-quences if they vote for the petitioner and does not vote foirespondent No. 1 as alleged?

(22) Does the petitioner prove that the aforesaid Shri TulsidasHamirdas Khojani along with 50 to 60 alleged Congress work-ers with the alleged consent of respondent No. 1, on 18thFebruary 1967 caused injury to one Shri Jathabhai Bhalabhalas alleged? If so, what its effect?

(23) Does the petitioner prove that the aforesaid Tulsidas HamirdasKhojani and other 50 to 60 alleged Congress workers causeddamage to the office of the petitioner, situated at Berampuraand threatened the alleged workers of the petitioners sitting inthe said office?

(24) Whether the petitioner proves that he is entitled to a declarationas duly elected member to the Gujarat State Legislative Assem-bly from Kankaria Legislative Assembly?

(25) Whether the petitioner proves that the expenditure for the con-test of the election by respondent No. 2 is any way borne byrespondent No. 1 as alleged?

(26) Whether the petitioner proves that the election of respondentNo. 1 is void under Section 100(1) (a) or 100(1) (b) and/or under Section 123(1) (2) (3) and/or (7) of the Represen-tation of the People Act, 1951?

('27) Whether the petitioner is entitled to any relief as prayed for in. para 9 of the petition?

E.L.R.] N. K. MAKWANA V. J. G. PARMAR *59

(28) What order?

My findings are:—(1) Not pressed.(2) Not pressed.(3) In the negative.(4) Not pressed.(5) In the negative.(6) In the affirmative.(7) In the negative.(8) In the negative.(9) Petitioner is not estopped from raising the point.

(10) Does not survive.(11) In the negative.(12) In the negative.(13) In the negative.(14) In the negative.(15) In the negative.(16) Not pressed.(17) Not pressed.(18) Not pressed.(19) Not pressed.(20) Not pressed.(21) Not pressed.(22) Not pressed.(23) In the negative.(24) Not pressed.(25) In the negative.(26) In the negative.(27) As per order.

REASONSIssues Nos. 7 to 10 cover the aforesaid ground No. 1. Issues Nos. 11

to 15 touch ground No. 2 and Issues Nos. 16 to 22 deal with ground No. 3.At the hearing before the evidence was recorded petitioner's learned advocateMr. Vakharia stated at the bar and also put in a statement that the peti-tioner did not desire to press issues Nos. 1, 2, 4, 18 to 22 and 24. Afterrecording of the evidence was over, Mr. Vakharia made a further statementat the bar that petitioner did not want to press even issues Nos. 16 and 17which deal with ground No. 3. So arguments were addressed only in res-pect of grounds Nos.. 1 and .2. Apart from these grounds certain othertechnical contentions are raised and they are covered by issues Nos. 3. 5.6 and 23. The rest of the issues are merely formal issues. I shall dealwith these last mentioned issues individually. Now I proceed to deal withthe issues that have a bearing on the ground No. 1 aforesaid.

I6O N. K. MAKWANA V. J . G. PARMAR [VOL. XXXII

Petitioner's allegation as regards ground No. 1 are thai respondent No.1 on the day he riied his nomination paper and also on the date of the

• election was an Indian Christian. His parents were Christian. His brotheris also a Cnristian. This being so, he was not qualified to stand as a candi-date for the seat reserved for the Scheduled Caste in Kankaria Consti-tuency and, therefore, he did not possess the necessary qualification lo standas a candidate in the said Constituency. The case of the respondent No. 1on the other hand in his written statement is that he never was a Christianat any time. He belonged to the Vankar caste on the date of election aswell as on the date he submitted his nomination paper, Vankar Caste isScheduled Caste and he also professed Hindu religion and as such wasentitled to be a candidate. Initially he has denied in his written statementthat his parents were Christians but later on in the alternative has averedthis if his parents changed the religion after his birth he himself cannot beheld to be Christian. So far as his brother is concerned he has raised anobjection that the allegation is vague inasmuch as the name of the brotheris not given and it is also not stated as to when he embraced Christianity.He himself was born in village Sokhda within the territory of Baroda Statein the year 1909 and at that time both his parents were Hindus and belongedto the Vankar caste. He himself had remained under the care and cus-tody of his grandfather Jethabhai and had studied in the Harijan Pri-mary School Sokhda and then in the High School at Baroda as a Hindubelonging to the Vankar caste. His brother Jinabhai is still a Hindu. Hahimself had married twice with Hindu women of the Vankar caste accordingto the religious rites of the Hindus. His children have also been broughtup as Hindus. He had been twice elected in the General Election of 1957and 1962 as a candidate belonging to the Scheduled Caste of Vankar.Neither the petitioner nor any one else had raised any objection on thesegrounds at the time of those elections nor had anybody raised any suchobjection at the time he submitted his nomination paper in the election heldin February 1967. According to him, therefore, he was fully qualified tostand as a candidate for the seat reserved for the Scheduled Caste and hiselection cannot now be challenged on this ground. His further case isthat even if it can be allowed to be challenged, he being a Hindu Vankarby caste and not a Christian, this ground cannot be sustained.

Issues Nos. 7 and 8 can be dealt with together as they cover the contro-versy as to whether respondent No. 1 was a Christian or a Hindu belongingto Vankar caste.

After considering the evidence on issues Nos. 7 and 8 of the petitionwhether the first respondent was an Indian Christian on the relevant dateand thus disqualified to file his nomination for the reserved seat, the judg-ment proceeded.

Now before I take up consideration of the other evidence on behalf ofthe respondent which I propose to do when I discuss the submissionmade by the parties on the respective instances. I would like at thissta^e to have a look at the provisions of law having a bearing on thepoint. Section 100 of the Act lays down the grounds for declaring anelection to be void. The relevant part thereof is as follows:—

"(1) Subject to the provisions of sub-section (2) If the High Courtis of opinion:—

(a) that on the date of his election n returned candidatewas not qualified, or was disqualified, to be chosen to fill

IE.L.R.] N. K. MAKWANA V. J . G. PARMAR 161

the seat under the Constitution or this Act or the Gov-ernment of Union Territories Act, 1963, or

(b)(c)(d)

the High Court shall declare the election of the returnedcandidate to be void.

(2)

Article 341 of the Constitution authorises the President after consultationwith the Governor to specify by public notification the caste, races or tribesor parts of or groups within caste, races or tribes which shall for the pur-poses of this Constitution be deemed to be Scheduled Caste in relation tothat State. It also provides a similar provision for the Union Territories.In exercise of the said powers on the 10th of August 1950 the Presidentpublished the Constitution (Scheduled Castes Order 1950). Section 2and 3 are material for our purposes.

Section:—2:—Subject to the provisions of this Order, the castes, races ortribes or parts of or groups within castes or tribes, specified inparts I to XIII of the Schedule to this Order shall in relation tothe States to which those Parts respectively relate, be deemedto be Scheduled Castes so far as regards members thereofresident in the localities specified in relation to them in thoseParts of that Schedule.

Section:—3:—Notwithstanding anything contained in paragraph 2, noperson who professes a religion different from the Hindu orthe Sikh religion shall be deemed to be a member of aScheduled Caste."

So a person who is a member of the Scheduled Caste and who professesHindu or Sikh religion is entitled to enjoy the privilege meant for the mem-bers of the Scheduled Caste. A person professing any other religion willnot be entitled to be treated as a member of the Scheduled Caste. In part4 of this Schedule for the State of Gujarat the caste Vankar amongst othercaste is declared to be a Scheduled Caste.

The allegation is as we have seen that on the date of election respondentNo. 1 was not qualified to be chosen to fill the seat of the Kankaria Consti-tuency No. 65 as the seat reserved for the member of Scheduled Caste as hewas at that time a Christian and not a Hindu belonging to Vankar caste.To prove this allegation the burden entirely lies on the petitioner. Thequestion is has the petitioner been able to discharge the burden? The sub-mission on behalf of the petitioner is that the evidence of Rev. Das of BarodaMethodist Church together with the entry No. 311, Ex. C, in Book No. 2and Ex. D, entry No. 11 in Book No. 4 establish that the parents and otherfamily members of respondent No. 1 had become Christian and this evi-dence also supports the case of the petitioner that respondent No.l hadalso become a Christian. This fact is corroborated by the entry in SchoolRegister and the School Leaving Certificate wherein he is shown to be anIndian Christian. No exolanation is eiven by respondent No. 1 as regardsthese entries in the school record and he has merely tried to say that he did

l 6 2 N. K. MAKWANA V. J . G. PARMAR [VOL. XXXIE

not know about it and the school certificate was obtained by his father ormaternal uncle on his behalf as there may be some chance of getting himemployed in service. The mere fact of his name not appearing in Ex. Din Book No. 4 does not negative respondent No. 1 being a Christian. Rev.Das has said that a person's name would not be entered in the Register asa candidate unless he was baptised and entry No. 311 Ex. C must be takento be referring to respondent No. 1 as it is not established that there wasany other person in that period with the same name who was a candidate ofthe Methodist Church. The other corroborative circumstances are accord-ing to Mr. Vakharia, that it is an admitted fact that in or about 1920 res-pondent No. 1 came to Baroda for schooling and has studied in the Metho-dist Primary School, then the Middle School and then the High School.His parents became Christian in the year 1921-22 which fact the respon-dent No. 1 was not prepared to admit at the stage of putting in his writtenstatement, has been established on record. The School Register show himto be an Indian Christian and further that he was born at Baroda in theyear 1910. So all this evidence which is good evidence according to Mr.Vakharia completely established the petitioner's case that respondent No. 1had also become a Christian in the period between 1921-22 and 1924 when.the Register and the School entry show him to be an Indian Christian. Itwas further urged that positive story with which respondent No. 1 came toCourt namely that his father and grand-father had quarrelled and livedseparately and at that time his custody as well as the custody of his wifewas taken over by the grand-father appears to be a got up one and so is thestory that he studied at the school at Sokhda. Here the evidence led onbehalf of the respondent on this aspect of the case is entirely unreliable.His story of having lived with maternal uncle is not established by anyreliable evidence. The only oral evidence led to support the story of hisearly childhood and study and stay at Baroda with his maternal uncle is ofwitness Trikambhai Dala, witness No. 9 for respondent No. 1. But he isa highly interested witness and his evidence is of such a nature that it can-not inspire any confidence. According to Mr. Vakharia the other evidenceled by respondent No. 1 that he was following Hindu religion and wasprofessing and was proclaiming himself to be a. Bankar from the year about1932 is also not of such a nature that it could be held that he had succeededin proving that part of his case. Argued Mr. Vakharia that even if itwere so, respondent No. 1 seems to have done so to gain to summon someundue advantages and if as a matter of fact that he had embraced Christiani-ty in the early twenties his merely professing to be a Hindu and a Vankarby caste at some later date without being reconverted to Hinduism cannothelp the respondent. It was further urged that there is even no plea thathe had reconverted himself to Hinduism and much less there is any evi-dence to that effect. The evidence, therefore, that led by respondent-No, 1 in no case canu be said to dislodge the case proved by the peti-tioner. In any case if he was a Christian and even if he becomes aHindu again, in iaw he can never be held to have retained the member-ship of the caste. Therefore,, submitted Mr. Vakharia the ground No. 1has been duly established.

On behalf of respondent No. 1 Mr. Oza his learned advocate submittedthat the petitioner has failed to establish that on the date of his election orthe submitting of his nomination paper the respondent No. 1 was a Chris-tian and not a Hindu belonging to the Vankar caste. The documentaryand other evidence from the record clearly proves that at least right from:the year 1932 till the relevant date respondent No. 1 professed Hindu reli—

E.L.R.] N. K. MAKWANA V. J . G. PARMAR l 6 3

aion and claimed himself to be belonging to the Vankar caste. There isnothing to show that he ever professed Christian religion. He argued thatthe entries in the School Register and the duplicate of the School LeavingCertificate having no evidentiary value, they cannot ? i to establish that therespondent No. 1 was a Christian as has been chined by the petitioner.Even if it is assumed that it has some evidentiary value then at the most itrefers to the period between 1921 and 1928 and that by itself cannot provethat at the relevant date respondent No. 1 was a Christian. According toMr. Oza the evidence led by the petitioner himself as a matter of fact goesto support the case of the respondent No. 1 particularly the evidence of Rev.Das and the documents that he produced. His ultimate submission wasthat the burden or proof lay on the petitioner and he has failed to dischargethat burden.

Now there can be little doubt that the most important witness by examin-ing whom the petitioner tried to establish that respondent No. 1 had em-braced Christianity is witness No. 2 Rev. Das with his record from the Me-thodist Church at Baroda. 1 have here above fully stated what he has saidand have also stated the contents of Ex. C, the two entries at S. No. 310and 311 from Book No. 2 and the entry No. 11 from Book No. 4. Thematter for determination is does this evidence establish the case for thepetitioner? The following facts having a great bearing on the questionemerged from this evidence:—

(i) Parents, brothers and sisters of respondent No. 1 had embracedChristianity but even children of Christian parents are not ac-cepted as Christians by the Christian community unless anduntil they are baptised;

(ii) The record of the Methodist Church at Baroda do not show atall that Jesing respondent No. 1 was baptised. They also donot show that he had ever become the full member of theChurch;

(iii) Witness Das a responsible Officer of the Church holding chargehaving regard to the record of the Church was convinced thatrespondent No, 1 was not a Christian. He was never baptisedat the Church nor was he ever considered* to be fu],1 member ofthe Church. He had satisfied himself from whatever recordhe had that respondent No. 1 was not a Christian. He knewwell his father and some of the members of his family and healso knew that Jesingbhai Respondent No. 1 was the son ofGovindbhai Jethabhai and he had felt himself justified not onlyin giving a certificate in writing to that effect but also whencalled by the petitioner to state on oath these facts he has nothesitated to do so. I may mention here that Rev. Master an-other Officer of the Church who was in charge of the Churchin the year 1956-57 had given similar certificates Ex. 2 and 3but I am not giving any importance to them as Rev. Master isalive, he was served with the summons on behalf of the res-pondent No. 1 but at the stage of hearing he was not examinedas a witness. But to my mind that does not in any way effectadversely the evidence of Rev. Das or the iccord that he hasproduced. On behalf of the petitioner a suggestion in cross

•examination was made to the respondent No. 1 that Rev,Master was not examined by him because he had obtained the

164 N. K. MAKWANA V. J . G. PARMAR [VOL. XXXIf

said certificate from him on misrepresentation of facts. Butthis after all has remained in the state of suggestion and nothingfurther. Here is not a case where respondent No. 1 had basedhis defence only on this documentary evidence of Rev. Master.It was for the learned counsel of respondent No. 1 to decidewhether it was necessary to examine Rev. Master in the light ofthe evidence which had already come on record through an-other official of the Church equally or possibly more competentto depose to the fact viz Rev. Das.

(iv) The two entries No. 311 of Book No. 2 and No. 11 of BookNo. 4 on which reliance was tried to be placed, to my mind danot help the petitioner. On the contrary they appear to refutehis allegation. One important fact that is to be taken noticeof, so far Book No. 2 is concerned, is that entry No. 310 inthat Book refers to one Theophil Govind and the next entryNo. 311 refers to one Jesing Govind. It is no one's case noris there any suggestion made at any stage that Govind- Jethahad a son named Theophil though the witness truthfully admit-ted that he would not be able to say whether Theophil Govindand Jesing Govind of entries Nos. 310 and 311 were brothers.In my view it would not be unreasonable to infer from the facts,as they stand so far, that probably they were and that theywere the sons of some other Govind. It is indeed a verysignificant fact to note that these entries in Book No. 2 arecontiguous entries it would be too much to believe thatthey are so by a mere coincidence and not because they werebrothers and their names were entered in the Register together.Respondent No. l's name does not appear in any other recordof the Church as a person who was baptised or a full memberof the Church and the further fact that respondent No. 1 's namedoes not appear as one of the sons of Govind Jetha in entryNo. 311 of Book No. 4 are strong significant facts to indicatethat Jesting Govind referred to in entry No. 311 belongs to someother family and who had a brother named Theophil. Ifrespondent No. 1 Jesingbhai was baptised and was a full mem-ber of the Church, his name would have been found in thisrecord as a person baptised and as a person who was a fullmember thereof. The fact that the names of the other bro-thers and sisters are shown in entry No. 11 of Book No. 4and Jesting respondent No. l's name does not appear belies

the allegation of the peiitioner. In my judgment, therefore,this evidence of witness Das and the documents that he hasproduced do not at all support the case of the petitioner buton the contrary they seem to demolish it:

Having realised the adverse effect on the petitioners' case of this oral'and documentary evidence which happened to be his own evidence, Mr.Vakharia his learned advocate naturally made an effort to deflate its value.He urged that the evidence established that Govind Jetha, his wife and otherbrothers and sisters had become Christian. It is difficult then to believe thatrespondent No. 1 alone became a Christian. Possibly realising this difficultyin his way respondent No. 1 has also tried to put a positive case, of hisfather and grand-father having fallen out on the point of Govind's desire tobecome a Christian and despite that resistance Govind" becoming a: Christian

E.L.R.] N. K. MAKWANA V. J . G. PARMAR 165

and thereupon grand-father prevailed upon his son Govind the custody ofhis only cmld at that date and his minor wife to him and that therefore, hehad been brought up as a Hindu and belonging to the Vankar caste to whichthe family orginally belonged. According to Mr. Vakharia this positivecase, the respondent has not been able to prove. Therefore, the fact thatrespondent No. l's name does not appear in entry No. 1] in Book No. 4cannot be of any signficance. Mr. Vakharia then made an effort even toexplain entry No. 11 from the family group of Govind. He suggestedit may be due to oversight or because' Jesing was away from Baroda. Ifind it difficult to accept this explanation. In the first place Book No. 41 have already stated, is obviously prepared from the other records of theChurch including Book Nos. 1, 2, and 3. Both the learned counselsagreed that it was prepared some time in the year 1933 as the Book itselfwould also show. There is no reason to believe that there should be a mis-take committed with respect to Jesing only while preparing entry No. 11 inBook No- 4. Particularly when we know that entry No. 311 in Book No.2 in the same name is in existence and if it did refer to son of GovindJetha, his name would have been included in the group entry of the familyof Govind Jetha just as other names of his family members are included.The reason given that as Jesing was admittedly away from Baroda it may-have been omitted does not appear to have any substance. As I havepointed out Book No. 4 was prepared from the record existing with theChurch and not from the enclaves of the memory of any one who was incharge of the church. At least these entries must have been preparedin consultation with persons concerned or persons who knew, therefore, mere-ly because respondent No. 1 was away from Baroda, it is difficult to believethat his name was omitted to be noted in entry No. 11. After all thishas come at the fag-end of the case by way of an explanation on behalfof the learned advocate. There had been no attempt whatever whenwitness Das was in the box or by leading any other evidence to put onrecord the reason why this very tell-tale omission of his name from thisentry No. 11. But this is not only omission. As we have nr*ed his namealso does not appear in the list of those who were baptised and in thelist who were full members of the Church.

Mr. Vakharia has not justly tried to offer any explanation with regardto these omissions.

Mr. Vakharia, then tried to urge that the absence of the respondent No.l's name in the Register No. 4 does not prove that he was not a Christianand the absence of his name from that entry, in law, cannot be consideredto be evidence to prove that he was not a Christian. It is the petitionerwho tried to prove, by bringing this record before this Court and by exa-mining the witness who should know about this fact, that respondent No. 1was a Christian and now he is put to an effort to destroy the value of thatvery evidence. But even after giving my best consideration to this sub-mission made by Mr. Vakharia, I find it difficult to accept it. In orderto receive some support from decided cases for his submission in respectof the omission in the entry in Book No. 4 Mr. Vakharia tried to rely onthe decision of Punjabrao vs. Dr. D. P. Meshram and othersi1). He parti-cularly relied upon the following observations:—

"It is contended on behalf of respondent No. 1 that there is a registerof persons who had been converted to Buddhism and that the

(i) A.I.IR. 1965 s.C. 1179.

166 N. K. MAKWANA V. J . G. PARMAR [VOL. XXXI

first respondent's name does not appear there. It is true thatR.W. 5 Waman Godbole speaks of some register but his evi-dence clearly shows that the register is not regularly maintain-ed nor are the signatures of persons who had been convertedtaken according to the dates of conversion. There is nothingto show that it was obligatory on every person who had beenconverted to sign in the registesr. Moreover, a signature insuch a register would be at best be only a piece of evidence ofthe fact of conversion and nothing more. Absence of a person'ssignature in the register would not necessarily negative his beingat all converted to Buddhism."

These observations however have to be read in the context of the other factsof the case. There the appellant's election was challenged on the groundthat he had embraced Buddhism and, therefore, had ceased to be a Hinduand as such did not belong to any Scheduled Caste and, therefore, he is notentitled to be a candidate for a seat reserved for Scheduled Caste. This isindeed an analogous fact but in that case the Supreme Cort came to theconclusion that there was over-whelming evidence to show that: —

(a) there was a mass conversion of a ver/large number of personsbelonging to the Scheduled Castes to Buddhism at the instanceof late Dr. Ambedkar, the then leader of Harijan, at Nagpur;

(b) respondent No. 1 of that case was one of those persons;

(c) Declaration of conversion was signed by respondent No. 1;

(dj Consistent long conduct on the part of respondent No. 1 andmany positive instances were proved where he acted and repre-sented himself as Buddhist and not belonging to a ScheduledCaste.

In the light of this unquestionable evidence the Supreme Court came to theconclusion that the said respondent No. 1 had ceased to belong to ScheduledCaste and was a Bhuddhist. As against that an effort was made to showby the said respondent that there is a register kept wherein names of personsconverted to Buddhism and respondent's name did not appear in that registerand, therefore, he was not a Buddhist. The remarks by the Supreme Courtregarding the register and the absence of the name are, therefore, to beappreciated in this context. In the present case the facts are to the con-trary. The registers are got produced and tried to be relied upon by thepetitioner as his evidence. Apart from that there is no evidence at allexcept of course the circumstances that his parents and other brothers andsisters have become Christians that respondent No. 1 had aiso become Chris-tian. No oral or documentary evidence to show that he had acted or heldhimself out in public to be Christian. If at all the evidence is to the con-trary, I am not forgeting at this stage the certificate in the year 1928 andthe entry in the School Register in 1922 which showed him to be an IndianChristian. I shall deal with that evidence a little later and point out thatthat too can be of no value to the petitioner. Coming back to the SupremeCourt's case, the Court only refused to consider the fact that absence of thename in a register not kept regularly to be any conclusive evidence to nega-tive the evidence to the contrary and have said that it would at the best bea piece of evidence and absence of a person's signature or his name in theRegister would not necessarily negative the fact of his being at all converted

B.L.R.] N. K. MAKWANA .V. J . G. PARMAR l 6 7

to Buddhism. The submission of Mr. Vakharia, therefore, as an absoluteproposition of law that absence of name in Book No. 4 can never be used,to prove the fact that respondent No. 1 had not accepted Christian religionand was not a member of the Methodist Church of which other membersof his family had become members cannot be accepted. But apart fromthis fact that his name does not appear in entry No. 11 in Book No. 4 aspointed out respondent No. l's name also does not appear, in the veryRegister, on which reliance was definitely placed by the petitioner, either asa person baptised or a full member. It is true that entry No. 311 does ap-pear in Book No. 2 and Mr. Vakharia tried to rely on it read with statementof Mr. Das that a name of person would appear as a candidate only uhe was baptised. That may be so but as pointed out that Jesing Govindreferred to at entry No. 311 has not been proved beyond reasonable doubtthat, he was respondent No. 1. It was then urged that it was for respon-dent No. 1 to establish beyond doubt that there was some other JesingGovind in 1924 whose name appear a t S. No. 311. I cannot accepteven this part of Mr. Vakharia's submission. It is indeed for the petitionerto prove that the name appearing at No. 311 refers to respondent and tono one else, particularly in view of the facts which positively indicate aspointed out above, that the entry in all probability did not refer to res-pondent No. 1.

I have no reason whatever not to rely upon the oral testimony ofwitness Das or the documents produced by him. It would not be in theordinary course of nature and human conduct for this high authority of theChristian Church to falsely disown respondent No. 1 as a Christian if he wasso in fact. Even otherwise I am satisfied that the witness was a truthfulwitness and his evidence and the documentary evidence he has producedcannot be brushed aside nor its weight minimised. How this evidence reactson other evidence or other evidence counter acts on this evidence I shalldiscuss hereinafter. But my finding is that this evidence not only does notsupport the case of the petitioner but on the contrary it goes tolend great support to- the say of respondent No. 1 that when his fatherembraced Christianity respondent No. 1 being the only child his grand-father took his custody and brought him up as a child belonging to theHindu religion of Vankar caste and that he never embraced Christianitythough his other brothers and sisters have embraced Christianity. Tn«two printed annual reports also indicate that he had no interest in Chris-tianity.

That leads to the consideration of evidence of Philip Henry Shah offic»clerk in Hill Memorial High School and the record produced by him. Th»importance of the evidence of this witness is only in his having producedand proved Ex. E, the counter-foil of the School Leaving Certificate dated30th June 1928 and the entry No. 35, Ex. F from the school Registerdated 5th March, 1923 and the further fact that both these documentsshowed Jesing Govind to be an Indian Christian. As I have already ob-served there could be little doubt that the entry Ex. F and School LeavingCertificate Ex. E refer to respondent No. 1. The question for determina-tion is what is the evidsntiarv value of the fact that he is shown to bean fndian Christian. The evidence of this witness shows that the SchoolLeavinu Certificate is prenared from the entry in the Register, therefore,if entry in th2 school register cannot insnire confidence^ naturally theSchool Leaving Certificate cannot stand on a better footing and cannotcarry the case of the netiHoner any further. Now the version of respon-dent No. 1 as regards his schooling we have already examined. The argument

1 E.C.—12

1 Jti.C—12

l 6 g N. K. MAKWANA V. J . G. PARMAR [VOL. XXXII

of Mr. Oza is that the certificate which was obtained from Sokhda HarijaaPrimary School which contained an endorsement that his religion wasHinduism and that he" belonged to Vankar caste was produced in thePnma/y School of the Methodist Church. ThaTthis particular documentis suppressed by the School Authority at the instance of the petitioner ajsit would show that the entry made in the record of the school and whichare produced are contrary to the truth. I do nqi_find any force in thissubmission of Mr. Oza. Mr. Vakharia had all along seriously challengedthe fact that such a certificate was" obtained and handed over at a Schoolat Baroda. He has gone to the length of challenging the fact of respon-dent No. 1 having even studied at Sokhda. 1 will deal with that aspectlittle later but assuming the fact that such a certificate was obtained andgiven to the Primary School of the Church at Baroda, it cannot take thecase of respondent No. 1 one inch ahead because admittedly he came toBaroda in or about 1919 to 1920 when neither of his parents had becameChristians. Both the learned advocates submitted before me that Govindand his wife became Christians some time in the year 1921 or 1922. Atleast there is no evidence led before me that they had embraced Christianityearlier than in 1921 or 1922. So there is no question of respondent No. 1being a Christian in 1919-1920 and the School Leaving Certificatefrom the Sokhda School would naturally and rightly show himto be a Hindu Vankar. But all the same, the important factto be noted for our purpose is that when respondent No. 1 cameand joined the Pirmary School or Secondary School of the MethodistChurch, he belonged to the Vankar caste and his religion was Hinduism, ftis, then again for the petitioner to show that he as a matter of fact embracedChristianity and thus ceased to profess Hindu religion and ceased to belongto Vankar caste. This fact could have been established by the petitionerand as a matter of fact he did make an effort to do so by bringing beforethe Court the evidence of the Church Official ana its record. They, how-ever, as already discussed do not help at all the petitioner and on thecontrary knock out the very basis on which he tried to build up his case.The evidence of witness Das and Church record to my mind have positiveeffect on the evidentiary value of the School record. The mere fact thatrespondent No. 1 is shown to be an Indian Christian in the School Registercannot conclusively prove that Ii5 liad become an Indian Christian andrenounced his own religion- No one had come ci'id deposed thatthis boy Jesing admitted to the School as a Hindu Vankar hadactually embraced Christianity at any point of time. There is no recordgot produced even from the School, under what circumstances this entrycame to be made in the School Register or at whose instance it was made.It is also significant to note that surname Parmar is definitely interpolatedand that it was so done af'er the certificate was issued in 1928. Tf we havea look on the counter-foil the surname Parmar does not appear there. I amhowever not inclined to give any importance to this interpolation becauseit does not change the fact that these entries more likely then not refer toJesing the respondent No. 1. But apart from that fact it is obviousthat no evidence is led as to who made the entry in the Register. Theseentries are not counter sianed by any responsible authority of the Schoollike the Head Master or Principal nor even the clerk who made that entry.The original School Leaving Certificate which was produced admittedlybefore the authorities of the School from which these entries are supposedto have been made is also not produced upto now. The truth of the con-tents of this Register so far as it concerned the disputed question has not

T.L.K.. H. K, MAKWANA V. J. G. PARMAR. 169

at all been established by leading any evidence whatever. The witness exa-mined has no personal knowledge about it. It has frankly admitted to beso. Further there is nothing to show or suggest that the respondent No. 1was ertfred in the Register as an Indian Christian at his instance. He wasa mh*ji and a child at that time, there is nothing to show that it washis si&tement so that it would be binding on him. This is an entry in theRegister of a private School and it is definitely not a public document.No presumption of truth of the contention can arise. It may be that thesaid fact was got entered in the School Register by some one interestedto get some advantage from a school managed by the Christian Church,particularly in view of the fact that father and other members had becomeChristians. Instances are not lacking where Courts have found wronginformation got entered as regards the age of tne boy to get some undueadvantage when he secured service. Similarly it is quite possible thatsomebody on behalf of respondent No. 1 may have had such a note madeto achieve the immediate- purpose. In the following case the SupremeCourt found ihat a school register could not always be relied upon to proveilk: fact that it mentioned. In Brij Mohan Singh vs. Priya Brat Narain'••riha and others,(2), Justice Das Gupta speaking for the SupremeCourt has observed that:

'in actual life it often happens that persons give false age of theboy at the time^of his admission to a school so that later inlife he would havf^rTaHvantage when seek public service forwhich a minimum age for eligibility is often prescribed. Thecourt of fact cannot ignore this fact while assessing the valueof the entry and it would be improper for the court to baseany conclusion on the basis of the entry, when it is allegedthat the entry was made upon false information supplied withihs* above notice."

As I have already observed this entry in the School Register is not to beumsidered in isolation and having regard to the other important evidence1 vi :l"-e record for the reasons I have just mentioned. I am not inclined togj'vs any weight to this entry. At least I am not prepared to accept it asconclusive evidence or evidence of such weight that it wipes out the effect(if oher positive and more important evidence which has come on therecord of this case.

As one more effort to boost up the value of this piece of evidence insupport of the case of the petitioner Mr. Vakharia urged that it is estab-lished beyond doubt that the School Leaving Certificate was obtained fromHie School, and if it was not a fact that respondent No. 1 was an IndianChristian the person taking it would have certainly objected to such anendorsement. That may bg true but there is no evidence to show as towho took the certificate and for what purpose. Ths original certificate isncit on record with us to show that the original also contained the samelennrk or 'hat it was not changed on objection Being raised. It is the sayof respondent No. 1 that he himself had not ootained that certificate buthis father or maternal uncle may have talcsn so that it may be used forgetting him employed somewhere. The respondent No. 1 says that henever knew that on the school record he was shown as Indian Christian.In the light of the evidence discussed above and his tender age at tint time,

0.) A.I.K. 1965 S.C. 281.

g l O N. K. MAKWANA V. JV G. PARMAK. [VOL. XXXII

there is no reason to disbelieve his testimony. The result is that this entryin the School Register and the School Leaving Certificate which were triedto be used as the sheetanchor or petitioner's version that respondent No. 1was a Christian at the relevant time cannot be held to be good evidenceto prove the fact Jiat respondent No. 1 was an Indian Christian in theyear 1924 or 1928 and much less at the relevant time in 1967. So far1 have only taken into consideration thejjyiden.ee of witness Das and theChurch Registers while considering the evidentiary value of the SchoolRegister and School Leaving Certificate but there is other documentaryand oral evidence to show that at least from 1932 Respondent No. 1 hasalways professed to be a Vankar and a Hindu. I will deal withthat evidence a little later. Suffice it to, say that even if thatevidence is not taken into account his solitary school record can-not go to prove the fact that respondent No. 1 is an Indian ChristianI have already shown that though witness No. 5 Joseph Jivabhai Tailor,witness No. 11 Yakub Morarbhai Khristi and witness No. 15 ChhotalalSomabhai Khristi were examined by the petitioner to prove the fact ofrespondent No. 1 being a Christian at the relevant time, they have notsupported him on the point. It is also very significant to note that thesewitnesses are Christians themselves. They know respondent No. 1 andhave deposed that his brothers and sisters and parents are Christians andyet have not stated that respondent No. 1 was at any time a Christian.There is no evidence, therefore, that he came before me that after therespondent left school he ever was known to have represented himself asa Christian or has anything to do with that religion or religious institutionor the Christian community. If at all the evidence is to the contrary,it is also important to note that petitioner had made an effort to provethrough these witnesses that the respondent No. 1 had tried to secureChristian votes by appealing to them that he was a Christian. No allega-tion of any corrupt practice on that ground has been made but it was 'only done to support his version that respondent No. 1 was a Christianand, therefore, all the Christians voted for him. None of the witnesseshave supported him. Having regard to the common course of humanconduct it would be surprising indeed that if respondent No. 1 was as amatter of fact a Christian and if he tried to hold himself out not to be aChristian to gain some personal advantage the Christian community wouldnot be resented and the Christian witness would not positively assert thathe was a Christian. I have, therefore, no hesitation in coming to the con-clusion that the petitioner has failed to prove that respondent No. 1 wasa Christian. He having failed to do so the fact that even if it is assumedthat respondent No. 1 has also failed to prove his positive case can haveno value and it cannot go to prove the case for the petitioner. But Ishall presently proceed to show that it cannot be held that respondentNo. 1 has failed to prove his version.

Respondent No. l's version starts from his childhood days. Ft is truethat in his written statement respondent No. 1 has not been quite candidabout the fact that his parents had forsaken their religion and ho.d em-braced Christianity and lias put his case on an alternative basis. But inerthe petitioner had also not given any particulars as to when the respondentNo. l's parents became Christians or whether the respondent No. 1 wasborn to Christian parents, whether all his brothers and sisters wereChristians. He had also referred to only one brother of the respondent

IE.L.R.] N. K. MAKWANA V. J . G. PARMAR 17

and his name is not given. But apart from the infirmities in the pleading*of the parties one thing is certain that respondent No.l has put up thecase that he was born in 1909 at Sokhda and at the time of his birth bothhis parents were not Christians but were Hindus belonging to Vankar caste,that he was brought up by his grand-father, and that he has studied inprimary school at Sokhda and then went to School at Baroda, that he hadnever embraced Christianity and was a Hindu and Vankar by caste. Itis true that there is no documentary evidence produced by the respondentNpv 1 to prove that he had studied at Sokhda in the Harijan School.Afjier considering the evidence of the first respondent that he was born aHindu and belongs to Vankar Scheduled Caste and he was brought up *and continued to be Hindu, the judgment proceeded. •••••;

Assuming for argument's sake that respondent No. 1 is by some stretchof reasoning held to be a Christian in the period 1921 to 1928 as shownby the School Register, can it help the petitioner to have the electiondeclared void on this ground. .Mr. Oza urged that it cannot because aHindu converted to Christianity can always walk back into the old foldwithout any expiatory ceremony. When a Hindu converted to Christianityreturns back to Hinduism, it is not a case of conversion to Hinduism andno ceremony is necessary in any case amongst the Vankars. The test isonly the intention of the individual to profess his original religion andhow he is received back by the old fold and how he is treated by hiscoreligionists. Mr. Vakharia however objected to this line of reasoningadvanced by Mr. Oza. He urged that it was not open to Mr. Oza toadvance such an argument because there was no pleading by respondentNo. 1 that he had been a Christian but had adopted his old religion byreconversion. I do not find any force in this submission of Mr. Vakhariaas it is for the petitioner to establish not only that some time in the remotepast or when the respondent had no volition of his own but as a child wasconverted to Christianity at the instance of his father, he is considered tobe a Christian at the date of the election 1967 and not a Hindu Vankarthough he was born as such. When petitioner tried to prove that respon-dent No. 1 is still a Christian at the date of the election because he wasconverted in the past. It is certainly open to the respondent No. 1 to urgethat he is not so in any even at the date of the election. Besides, respon-dent No. 1 does not want to put up a case of reconversion at all. He hasput up right from the begining the plea that he himself had never adoptedChristianity as his religion and that he is a Hindu Vankar by caste on thedate of the election and has elaborately given his reasons for it. Thenagain from the evidence as led, the respondent wants to advance a pointof law. I have therefore permitted Mr. Oza to urge the argument. Mr.Oza has relied on a number of decisions of various High Courts in supportof his plea and I may refer to a few of them. In Vermani v. Vermani(B)it was held by a Special Bench that a Hindu convert to Christianity canrevert without any expiatory ceremony. The conduct of the person show-ing that he was reconverted to Hinduism and received by his communityas a Hindu is enough. It may be noted that reliance had been placed bythe learned Judges for the said conclusion on a leading case decided by theMadras High Court in Durgaprasada Rao v. Sudarsanaswamii*) to which

(?1 A.T.H. 1953. T a^ore 51.(4) A.I.R. 94°iMadras 513.

172 M. K. MAKWANA V. J . G. PARMAR I VOL. XXXH

also I siiall refer in due course. Now it is important to notice that two pro-positions of law had been decided by this ruling. One is that a Hinduconvert to Christianity can come back to the old religion without goingthrough any expiatory ceremony and the second is that the conduct of theperson is enough to show that he had reconverted himself to Hinduism andthat he was so received by his community as a Hindu is sufficient to estab-lish himself as a Hindu. The facts of the said case are that 'A' as Hinduhad already married according to Hindu rites to B, a Hindu woman,falsely represented to C a Christian lady that he was a Christian and abachelor and married her. The said Christian lady finding out the factshad fued a petition for dissolution of marriage. The learned Judges heldthat the onus was on A, the respondent to prove that he was converted toChristianity and that he was a Christian at the date of his marriage toB and therefore his marriage to B not being legal, his marriage with C waslegal. While deciding this point, the learned Judges made the abovestated observations on which reliance is placed by Mr. Oza. In my view,this case certainly helps ths proposition" advanced by Mr. Oza.

In A.I.R. 1940 Madras P. 513(supra), Ayyangar J held that whereon the evidence it is shown that in fact the Hindu Christian returned toHinduism after contracting a second marriage during the life time of hisfirst wife and remained and died a Hindu and was accepted as such byhis community and coreligionists without demur and no evidence is ledto show that the caste insisted on any rituals in such matters, the Courtcannot treat him as having continued to remain Christian and his secondmarriage invalid on account of the absence of a ceremony or re-conversionor any other expiatory ceremony. The learned Judges rejected the pleathat society might get into a state of flux and confusion if a formal abandon-ment followed by the performance of expiatory ceremonies is not inisistedon. Now if we go through the facts of the case, we find that in that casetfiere was as a matter of fact oral and documentary evidence to show thatthe person concerned had continued his association with the Church. rTotonly that but there was further evidence to show that in the past he wasinterested in the Roman Catholic Church because he was contributing fundsform the mali and the purchase of oil for the santcuary lamp. There wasalso evidence to show that for some years he used to go to Church new andthen. As I have discussed, so far as the present case is concerned, thereis no such evidence to be found. In the said case the learned Judgeswondered that if the person concerned was a Roman Catholic at the timeof his death, why the local priest and members of his church congregationhad not come forth to speak to his following the Roman Catholic religion.One of the Church Vasahaties seem to have been intimately associatedwith the deceased when he was alive but that witness was not called. Thelearned Judges found it incredible that no members of his congregation wereavailable to give evidence that the person concerned was a Christian. Thelearned Judges found that the omission on the part of the party whowanted a decision from the Court that the person concerned was a Chris-tian, was of greater weight though some positive evidence was led asmentioned hereinabove. There is one more important aspect of this caseand that is that there was positive evidence that person concerned waseven baptised when he was a child of twelve or thirteen and that he hadbeen married for the first time in Christian form when he was seventeenand that upto a particular time he had been contributing to the Church

E.L.R.] N. K. MAKWANA V. J . G. PARMAR 173

fund. Despite that, the learned Judges came to the conclusion that thewhole evidence pointed to the conclusion that so far as he was concerned,he had abandoned the Christian religion. In the said case, therefore, des-pite positive evidence to show that he had converted himself to be aChristian and had acted and believed in Christianity up to a particularstage, there was evidence to show that subsequently the said person con-ducted himself as having abandoned Christianity and that that was enoughto hold that person had died as a Hindu and not as a Christian. AsI have fully discussed the case, the facts are much stronger in favour ofrespondent No. 1. There is no evidence that he was ever baptised. Thereis no evidence that he ever became regular member of any Roman CatholicChurch. There is no evidence that he ever acted or professed to followthe Christian religion. On the contrary, those who ought to know namelyRev. Das connected with the Baroda Church has positively established thairespondent No. 1 was not baptised at the Church, he was not even enrolledas a regular member of the Church and he had never known him as aChristian. Further more, there is evidence which I have just discussedwhich clearly indicates that right from the beginning, respondent No. 1 wasbrought up as a Hindu child and except foi that controversial period afterhe was on his own had always acted as a Hindu belonging to the VankarCaste and was accepted as such by his coreligionists; that there is noevidence at all that he had ever professed to have accepted Christianity ashis religion. This case, therefore, goes to support respondent No. 1 notonly on this narrow alternative argument but to my mind also on the mainaspect of the case. In any case, Mr. Oza's alternative argument gets fullsupport from this judgment.

Similarly in Venkatramayya v. Seshayya(6) it was laid do vn byPatanjali Sastri J. that among Sudras, no formal expiatory ceremonies arenecessary when a Hindu convert to Christianity comes back to Hinduismunless such ceremonies are enjoined by the practice of the community inquestion. I need hardly expand on this point. Suffice it to say that thisdecision also supports the submission made on behalf of respondent No. 1.There is no doubt that respondent No. 1 does not belong to the twice-bornclass and that he is a Sudra. There is no evidence to show that if he wantedto enter back Hinduism, it would be necessary to go through some expiatoryceremonies. In Dipvala Sur: Dora v. V. V. Giri(°) the question waswhether the result of the election of the returned candidate had beenmaterially affec'ed by the improper acceptance of his nomination in thathe had falsely declared himself to be a member of the Scheduled Tribe ofMukka Doras in his nomination paper whereas in fact he was not a memberof any Scheduled Tribe and was Kshatriya.

On this question the learned Judges observed and on which Mr. Ozahas relted that:

"This will arain depend on circumstances and different considera-tions. That apart from the mere performance of the ceremonies

(5) A.T.P. 19./> M-d -03 . .(6) AT.F . l"5 A. P r d e ^ 7 >4.

174 N. K. MAKWANA V. J . G. PARMAR [VOL.

or adopting the ceremonies would not be enough to removethem from the fold of the original tribe unless as has beenobserved by Their Lordships of the Supreme Court in 1954S.C.R. 817, reactions of the old body, the intentions of theindividual himself and the rules'of the new Order are shown. ~

It is not disputed that orginally the appellant belonged to MokaDora Tribe. In order to prove that he ceased to be a mem-ber of that tribe, there should be first of all, evidence of inten-tion, the reactions of the old body and that of the new body.Viewed in the light of these observations, the evidence dis-cussed above, in our"opinion, falls snort of the test."

Mr. Oza urged that applying this test on an analogy, reaction of theold body, the intention of the individual himself and the rules of the neworder also establish the case of the respondent No. 1 that he had never,as a matter of fact, gone to the new order. The old order had with openarms acknowledged him to belong to it and the reaction on the individualhimself even would indicate that he never wanted to be a Christian, wasnever a Christian and that he always acted as a Vankar. I find that thereis not an iota of evidence led by the petitioner to show that he ever wasknown even in the Christian community to be a Christian. There is noevidence whatever to show that he did anything tor lead us to the conclusionthat he was a Christian, though time and again he publicly claimed to belongto the Vankar caste. It is an admitted position deposed by petitioner'switness Rev. Das that there are no castes known to Christianity. No onehas said before me that though a-Christian, a person can still claim tobelong to be a Vankar and he is acceptable to society as a person belongingto Vankar caste.

Mr. Vakharia then argued that even if the respondent is allowed to urgethe said argument, according to law, respondent cannot be said to be aHindu. Even after conversion, caste distinction might continue and there-fore even if the respondent continues to claim to be a Vankar, it cannot besaid that he was a Hindu by religion. If he was not a Hindu by religionunder section 3 of the Scheduled Caste Orders 1950, he cannot claim tobelong to a Scheduled Caste. Now it is true that section 3 ofthat Order does lay down that only a person whcT professes Hindu or somereligion can claim to belong to the Scheduled Caste. Mr. Oza wanted tocontend that caste system was only known to fne"Hindu religion and there-fore when respondent No. 1 claims to be a Vankar, he further need notprove that he is a Hindu by religion. In this case it is not necessary forme to enter into any discussion as regards this controversy as I have foundthat there is ample evidence to prove that respondent No. 1 has been pro-fessing Hindu religion. Mr. Vakharia seems to make out this point lelyingupon the entries in the School Registers of respondent's daughters and alsoon the Death Register where his son's death is entered and in the relevantcolumn, the word 'Vankar' is written and the word 'Hindu' is not to befound. Now if we have a look at the entries in the School Registers ofthe two girls, I find that the word 'Hindu' is not written even in otherentries and by and large only the caste to which the student belonged hasbeen mentioned. Therefore the absence of the word 'Hindu' would notindicate that the respondent No. 1 had consciously avoided the use of thatword as he was, as a matter of fact, by community a Christian. So faras the Death Register is concerned, we have not got other entries before

E.L.R.] N. K. MAKWANA V. J . G. PARMAR 175-

us to see whether in that Register also the word 'Hindu' was necessarilywritten, together with the caste to which the particular individual maybelong. 1 am not inclined, therefore, to give any weight to this aspect ofMr. Vakharia's submission. Mr. Vakharia seems to rely upon the follow-ing observations in G. Michael v. 5. Venkateswarani1) which was initiallyrelied upon by Mr. Oza to support his plea:

"Christianity and Islam are religions prevelant not only in Indiabut also in other countries in the world. We know that inother countries these religions do not recognise a system ofcastes as an integral part of their creed or tenets. Is it differ-ent in India? Mr. Venkatasubrmania Aiyar frankly confessedthat so far as Islam is concerned there is no question that itdoes not tolerate any difference based on caste distinction. Amember of one of the castes or sub-castes when he is convertedto Islam ceases to be a member of any caste. He becomesjust as a Mussalman an3 his place in Muslim society is notdetermined by the caste to which he belonged before his con-version. Learned counsel also conceded that generally thisis so even when there has been a conversion to Christianity.But he said that there were several cases in which a memberof one of the lower castes who has been converted to Christiani-ty has continued not only to consider himself as still beinga member of the caste, but has also been considered so byother members of the caste who had not been converted. Iam prepared to accept that instances can be found in whichinspite of conversion, the caste distinctions might continue.This is somewhat analogous to cases in which even after con-version certain families and groups continue to be governedby the law by which they were governed before they becameconverts. But these are all cases of exception and the generalrule is conversion operates as an expulsion from the caste; inother words, a convert ceases to have any caste."

But these observations were made by the learned Judges in contextwith the question examined by them which was whether the Constitution(Scheduled Castes) Order, 1950 made by the President was ultra viresas he had arbitrarily specified a part or group which had no independentobjective existence. The learned Judges observed that there may be someexceptions and no one had deposed "before them that amongst the IndianChristians in this part of the country even after conversion caste distinctioncontinued. In the case before me on the contrary, as pointed out here-inabove, witness Rev. Das himself has said that amongst Christians, thereis no caste system.

Then Mr. Vakharia argued that even if a Hindu convert can againenter Hinduism by reconversion, lie can never regain his place in thecaste. He only then continues as a Shudra and never can become aVankar. For this proposition of his lie sees to rely upon certain observa-tions of Sir Dinshaw Mulla's Hindu Law, Thirteenth Edition at pages589 and 591. But I do not find anything in those observations whichgo to support the submission made by Mr. Vakharia. Para 626 dealswith the subject as to who are Shudras and para 631 deals "Converts toHinduism." The only observation is "Converts to Hinduism are regard-ed as Shudras.rt It does not anywhere refer to the further proposition

(7) A.I.R. 1952 Mai. 474-

I 7 6 N. K. MAX WAN A V. J . C. PARMAR I VOL. XXXH

tried to be evolved by Mr. Vakharia. In the first place it has to be noticedthat this does not deal wiih the case of persons who again conic backto Hinduism and secondly it does not at all deal with the further propo-sition urged by Mr. Vakharia that they cannot belong to the caste to whichthey originally belonged though they may be regarded as Shudras.

The result of this discussion is that since 1932, at least there is evidenceto show that respondent No. 1 has practised and professed Hindu religionand has claimed publicly to be a VJrnW. Further that he has been accept-ed by the caste fellows and coreligionists to be a Hindu Vankar. Asagainst that, apart from the entries in the Methodist School record in1924 and 1928, there is not a little of evidence to show that respondentNo. 1 professed Christian religion of was so recognised or received bythe Christian Society. The only conclusion, therefore, to which one isdriven on the evidence on record is that the petitioner has failed to Drovethat respondent No. 1 was a Christian and therefore was not qualified tofill the seat reserved for Scheduled Castes. The petitioner is not entitledtherefore to have the election of respondent No 1 declared void on thisground. Consequently my findings on issues Nos. 8 and 9 are in the nega-tive.

The other issues touching this ground No. 1 are issues Nos. 9 and 1©.In my view, there is no substance in the contention which is the bubject-matter of issue No. 9. Section 100(1 ) (d ) ( i ) of the Representation of thePeople Act, 1951 provides that the election of a re-turned candidate can be declared void if there is improper acceptanceof a nomination whereby the result of the election, in so far as .1 con-cerns the returned candidate has been materially affected. In the firstplace, in my view, this was not a case of improper acceptance of ;» nomi-nation paper. If the nomination paper prima facie did not discing anyillegality or want of qualification of a candidate and no objection is t^ken,then the Returning Officer has got to accept that nominaion and *Hen itis not a case of improper acceptance of nomination within the m m t% ofsection 100(l)(c). It is then a case falling within section 100n>fr!)(ii)namely noncompliance with the provisions of the Constitution of ^dia.The case of a candidate who is "not qualified to be returned as a r>emberunder the Constitution is a case of noncompiiance with the provis-cvis offhe Constitution. Obviously if respondent No. 1 was not a member of theScheduled Caste, he was not qualified under the provisions of the ^-"insti-tution read with Constitution (Scheduled Castes) Order, 1950. When aperson is not qualified to stand as a candidate, the Court h°s p^ 'T setask'e his election as law casts a duty on the Court to do so. Und^ thecircumstances whether an objection is taken or not makes no difT^en -> andthe principle of estoppel has no place in a case of this nature. The I? -ding;ase on the subject decided by the Supreme Court in Durga Shanker v.Fhaknr Rapjnirai Singhi9), wherein it was observed as follows:

"If the want of qualification of a candidate does not appear on theface of the nomination paper or the elector^ o'1 1 noobjection is raised to his nomination, the Returning Officer hasno other alternative but to accept the nomination ard ' ", ac-ceptance of the nomination cannot in such n case h<* ' 1 tohove been "improper" within the meaning of sent;o^ ' ' ) ( i t

:H- 9 F.I..P. 494-

S.L.R.1 N. K. MAKWANA V. J. G. PARMAR 177

(c), even though the Election Tribunal finds subsequantlyafter enquiry that the candidate whose nomination was acceptedwas not really qualified under the Constitution to be chosen asa member of the Legislature. The election cannot be declaredwholly void in such a case on account of the improper accept-ance of a nomination under section 10Q(l)(c), but the case isone of "non compliance with the provisions of the Constitu-tion" referred to in section 100(2) (c) and the election of thereturned candidate alone can be declared void."

In the light of my finding that there was no improper acceptance ofnomination paper, issue No. 10 does not survive. Mr. Vakharia furtherfrankly admitted that he could not press the issue having regard to theevidence on the record. The result is that I find issue Nos. 9 and 10 alsoia the negative.

I shall now deal with the second ground of challange which consistsof the alleged corrupt practice as contemplated by section 123(6) of incurr-ing .or authorising of expenditure in contravention of section 77. It is anadmitted fact that under section 77, the maximum limit of amount ofexpenditure fixed for Gujarat assembly seat is Rs. 8,000. The corruptpractice alleged is that the said amount has been exceeded by a large margin.The issues that cover this ground are issues Nos. 11 to 15. According tothe petitioner's case, so far as the excess amount alleged to have beenspent consists of the following:—

(i) That the return filed by respondent No. 1 with the DistrictElection Officer shows the total expenses of Rs. 7,600 only.The vouchers filed by respondent No. 1 himself with his returnprove that actually the expenditure total up to Rs. 14,000;

(ii) Respondent No. 1 had hired six taxies for his propaganda workin his constituency and also employed three private cars andhad incurred the expenditure of Rs. 10,000 for petrol forthe use of those vehicles but in his return he has shown onlyRs. 955;

(iii) The respondent has also spent for drivers in the use of theabove vehicles and has spent Rs. 1,000 for it which amounthas not at all been mentioned in the return;

(iv) Respondent No. 1 had put up about 50 temporary shelters(Mandaps) and had spent Rs. 1,800 for the same but has shownonly Rs. 516 in his return;

(v) Respondent No. 1 has spent about Rs. 1,000 more than whathe has shown in his return for printing.

The allegation is that in all respondent No. 1 has spent about Rs. 30,000.

After considering some items of evidence on the allegations in thepetition that the first respondent has spent about Rs. 30.000 as his electionexpenues, the judgment proceeded.

That leads me to item No. 14 in statement 'A' which refers to the costof salaries of drivers. It was the suggestion on behalf of the petitioner thatrespondent No. 1 admittedly used two vehicles for his election propaganda.

N - K. MAJCWAN^ V. J , G. PARMAlR LVOL. XXXII

One was a jeep and another was an ambassador car, and that they were-driven by drivers, tnereiore, the drivers saiaiy must oe put as an item iathe cost incurred by respondent JNo. 1 ior nis election, i inkt it difficultto accept even this submission on the part at the petitioner. In tn© arstfelace, respondent No. 1 has dehmtely stated that boch tnese drivers werepermanent employees of the Majur Manajaa. They were not specificallyemployed tor the purposes of the eiecuon propaganda. Thereiore, itcannot be said that any expense was incurred for tne purpose of the elec-tion propaganda. If it had been proved that any extra amount had beenpaid to them, that would be a different story. But as against the say ofrespondent No. 1, there is no evidence led to show that they were speciallyemployed or that they were specially paid for the election work. Mr.Vakharia seems to rely upon the following decisions for substantiating hwsubmission. In Vasantha Pai v. Dr. V. K. John (9) Election Tribunal,Madras decided that free services rendered by friends of a candidate e.gifree advertisements in a news paper, (free printing of manifestos,, freereprinting of electoral rolls, making of books etc. which have a cash valuemust be included in the return of election expenses. Mr. Vakharia seemsrelying upon these observations argued that even if the drivers were permanentemployees of Majur Mahajan, a reasonable amount must be fixed byCourt and the said amount of expenses should foe taken to have beenincurred by the respondent No. 1. Now it is true that in this particularcase, such a view has been taken in the year 1956 but as I shall presentlypoint out, there is a different view taken by the High Courts on the samesubject and I am inclined to accept that later view for reasons that Ishall give. The other decision on which the learned Advocate for thepetitioner relied is in M. R. Meghamthan v. K. T. Kosalram (10) whereinit has been observed that reasonable hire for the cars belonging to othersused by a candidate in connection with his election, even if none was infact paid, should be included in the election expenses, for otherwise acandidate with rich and influential friends and supporters could easily evadethe provisions of law as to the maximum of election expenditure. Thiscase was dtcided by Election Tribunal, Tanjore.

At this stage, I may also deal with items Nos. 15 and 16. ItemNo. 15 is in respect of the cost of hire charges of one car and item No. 16is cost of wear and tear charges of one car. For item No. 15, Rs. 240have been indicated and for item No. 16 Rs. 200 are indicated. Now, aswe have seen, so far as the use of cars are concerned, the case of therespondent No. 1 has been that the jeep car bebnged to the Majur Mahajanand as regards the other car namely the Ambassador, he was not quitedefinite as to whether it was owned by Maiur Mahajan or not,though in re-examination he has said that it belonged to the MaiurMahajan. There is no evidence on the part of the petitioner that thiscar as a matter of fact was taken on hire by the Maiur Mahaian for thepurposes of the election 'propaganda. This particular fact could also havebeen established bv the petitioner bv examining some person from theMajur Mahajan. No one has been examined to Drove that actuallyRs. 240 were paid for hire charges. Under the circumstances it cannot

(9} 12 E.T..R. 107.(io) 9 E.I .R. 242.

E-L-lU N. K. MAKWANA V. J. G. PARMAR 179

±>e .said that the petitioner lias established the fact that one car wbich was-Used for the propaganda of respondent No. 1 at the time of the electionwas taken on hue either by him or by the Majur Mahajan. Under the•circumstances, this item No, 15 cannot be said to have been proved and*as such it cannot be said that tile respondent No. 1 should have includedin his election expenses ttoe amount of Rs. 240 as hire charges. ItemNo. 16 also, t,o my mind, is not sustainable. The jeep car belonged tothe Majur Mahajan and if they used it for the purpose of the electionwork, unless and until respondent No. 1 was charged for such wear afldtear, of the car used for his election work, respondent No. 1 was notbound to include any such imaginary charge for wear and tear for thesaid vehicle. As observed above, by a series of rulings it has been laiddown that if any vehicle or services of any drivers are lent without'charging anything for the use thereof by friends and helpers of a candidate,he i» not bound to include in his election expenses any estimated figures

sfoi- the"'use thetsof if such use was not allowed to be made gratuitously.

I may now refer to some of the decisions in Muthiah Chettiar v.•Ganesan ( u ) that question has been at length discussed and I do notdeem it necessary t j enter into any further discussion on my own as I amin agreement with the reasoning and the conclusion reached in the saiddecision.. One of the allegations on which the election of the returned

*catniHiater in'that case was challenged was as follows:—

"The petitioner has utilised eight propaganda vans, RegistrationNos. oi 3 of the vans are T. C. T. 4641, M. D. C: 946 andM. S. Y. 4213. During the entire period of the election cam-paign of the respondent the respondent has not disclosed iahis account of election expenses either the price of the propa-ganda vans or the hire charges or the charges for depreciationof the vans or the remuneration of the drivers of the vans, atthe motor vehicles tax payable in respect of those vans orthe charges for the microphone equipment fitted to the pro-paganda vans".

The reply of the respondent of that case was as follows:—

"''The allegations in paragraph 19(a) are incarrect and misleading.For 'propaganda purpose during the election only three vansand one jeep have been used and these were voluntarily givenby the owners and all expenses actually incurred or authorisedto be incuired in connection with these vans by the respondenthave been shown in the accounts."

The Tribunal found that three propaganda vans were used throughoutthe election campaign for a period of over a month and a jeep van forover two weeks for trarposes of election and that they were voluntarilygiven for the respondent's use by their owners. It was also not provedthat any money actually spent for the running of the vehicles had beenomitted from tn*e account of election expenses and yet the Tribunal wenton to deal with the ciuestion whether on account of user .of three vans and•one jeep for the purposes of the election, though they .were votentarilly

A.I.R.

1 8 0 N- K. MAKWAKA V. J . G. PAHMAR IVOL.

ffvpn-by their owners* the respondent was liable to iatigd* any amount innis account of election expenses. It wa* Jield that thoufh there wgi aoevidence adduced by the petitioner, reasonable estimate has to be madeof the hire which would have been paid tor the vans and the jeep if theyhad not been given freely by their owners. The Tribunal then madecertain calculations and arrived at its own estimate and on that calculationhe arrived at a figure round about Rs. 15 which the Tribunal held oughtto have been included in the election expenses. Dealing with thi§ part'of'the judgment of the Tribunal, the learned Judge of the Madro High Courtobserved that the rule adopted by the Election Tribunal was directlyopposed to the law as laid down by the Supreme Court in BattattfayaSingh v. Baijpath Singh (12). In that case the returned candidate wasone Rananj'ya Singh. Among ths grounds on which his election wassought to be set aside was that he had employed for election purposes morepersons than authorised by law and that he had incurred expenditureexceeding the 'prescribed limit. It may be here >b$ened 4km befefresection 123 was amended, employing for election purposes more personsthan those specified in Schedule VI was a corrupt practice. In the saidSupreme Court case, the charge in effect was that the Manager, AssistantManager, and 20 employees of the estate belonging to the father of thereturned candidate and their peons and orderlies had worked for thecandidate. The Supreme Court differing from the Tribunal held that inthe eye of law the persons who were in the employment of the father ofthe candidate and had been paid bv him were neither emptoved nor paidby the candidate. It was observed by trie Lordships of the Suoreme Courtthat it was obviously a case where a fathei assisted the son in the matterof the election. At the requesi of the lather, those persons had assistedthe son in connection with the election which strictly speaking they werenot. obliged.to do. In the opinion of their Lordships, it was clear thatqua the appellant those persons, were neither employed nor paid Iqr him.So far as (he appellant was concerned, they were mere volunteers. TheirLordships further dealing with the argument on behalf of the petitionerof that case that such a construction would be against the spirit of theelection laws in that candidates wh3 have rich friends or rela'ions would'have an unfair advantage over a poor rival. It was observed thatthe spirit of the law may well be an elusive and unsafe guide and thesupposed spirit can certainly not be given effect to in Q§position to theplain language of the sections of the Act and the rules made thereunder.If all that can be said of these statutory provisions was that construedaccording to the ordinary grammatical and natural meaning of their languagethey work injustice by olacine the poorer candidates at a disadvantage, theanpeal must be to Parliament and not to the Court. In the sa'rl SunremeCourt decision reference was made to an English cas* of Intent? FosterWilson A Sir Chrhtovher Furness, C1* wherein also a similar principle-was laid .town. The learned Judges of *h«. Mad™ Hii* Oyrt. r e Wupon the Supreme Court, and the observations made by the Privy Councilheld tha the candidate in th«t case before them had not made any paymentnur had he incurred any expenditure for the use of the vans and the jeep

(12) A.I.R. 1954-Supreme r our t 74?-

(13) 6o Mailey pnd Hard Casties's Rrport of Election Ca'.e< page T,

E.1..R.] N. K. MAKWANA V. J . G. PARMAR l8 l ;

So far the purchase of the petrol was concerned, there were vouchers m.the account of the petrol purchased for election purposes, under thecircumstances, it cannot be said that the returned candidate had committedany corrupt practice. They further held that giving notional estimate ofthe amount t 3 represent wear and tear of the motor car in which therespondent made the journeys was an extravagant demand. Assumingthat such amounts could be determined and included, there was noevidence on the point on which the Tribunal could base a rinding. Onall these grounds, they rejected the plea of the petitioner.

The Madras High Court said the case also dealt with and relied uponthe decision of Shtopat Singh v. Narish Chandrai11). It is relied upon byMr. Oza. In the said case, Division Bench of the Rajasthan High Courtconsisting of K. N. Wanchoo C. J. and Jagat Narayan J. relying upon thesame decision of the Supreme Court in Banansaya Singh v. Baijpath Singh(12) held that one incurs expenditure when one actually spends money.One authorises expenditure when one incurs a pecuniary liability. Inborrowing a vehicle, which the lender lends gratuitously, no pecuniaryliability is incurred, and hence there can be no question of reasonable hireof vehicles given on loan gratuitously to a candidate by his friends orrelatives to assist him in his election being considered to be election expen-diture incurred or authorised by the candidate.

The observations made in these two decisions fully apply to the factsof the present case. Respondent No. 1 has deposed that he has had topay nothing for the use of the two vehicles to the Majur Mahajan for hiselection 'propaganda. The two vehicles belonged to the Majur Mahajanand they had only lent them for his use as they had sponsored his candi-dature. So far the two drivers are concerned, also no ex-ra expenditurewas incurred as thev were permanent employees of the Maiur Mahajan.He actually spent for running the cars by 'purchasing petrol which has beenshown in his election return of expenditure. Therefore, whatever extraexpenditure was caused by the use of the two vehicles for his electionwork has been included bv him in his return and on the principle decided"bv the aforesaid two decisions, and with which I aores. the respondentNo. 1 was not bonnd to add +0 thp election expert"^ that he ha j disclosed.either of the three items 14, 15 or 16. So items Nos. 14. 15 and 16 havealso to be omitted.

[After considering the evidence of the First Respondent on the alle-gation in the petition on the- excessive expenditure incurred by the FirstRespondent on petrol the judgement proceeded.

Then comes the important question of burden of 'proof, Mr. Ozauiged "that this being a charge of corrupt practice, the burden lay entirelyon the petitioner t 3 prove it beyond reasonable doubt. No duty lay oathe respondent No. 1 to prove it as the nature of election proceeding isa quasi-criminal proceeding. I accept Mr. Oza''s submission. By a longuniform course of decisions of various High Courts and even the Supreme.Court, the rule is now well-settled that in election petition proceedings,the trial is a criminal trial in substance especially in view of

(14) A.5.R.I958—Rajasthan 2740

N. K.. MAKWANA V. J . G. rARMAB. iVOl,, XXXII

the penal consequences that Jtollow of disqualifying a person to stand inelection lor a certain nunioer of years it ne is round to nave commuted.corrupt practices, lhat oemg so, the ciiarges made must be speakedand pruoi to be produced in support oi the allegations must be estaonshedbeyond the possibility oi a reasonaole doubt ana the principleor balance of probability or shifting of the burden of proving has no place

in the proceeding of a quasicriminal nature. I would rest satisfied byreferring to only one decision of the Supreme Court in Jagdev Singh v..Pra'ap Singh ( lu) where it has been laid down as follows:—

"In the trial of an election petition, the burden of proving thatthe election of a successful candidate is liable to be set asideon the plea that he was responsible directly or through hisagents for corrupt practices at the election, lies heavily uponthe applicant and unless it is established in both its branches,i.e. the commission of acts which the law regards as corrupt,and the responsibility of the successful candidate directly orthrough his agents or with his consent for its practice not bymere preponderance of probability, but by cogent andreliable evidence beyond any reasonable doubt, the petitionmust fail."

Keeping in mind this principle of burden of proof, there can be little>doubt that as regards the tacts alleged by the petitioner in respect of boththe statements 'A' and 'B' the evidence on record falls much below themark. His allegation that respondent No. 1 has spent or authorised tospend tor his election the whole amount shown in the sub-vouchersaforesaid has to be proved beyond reasonable doubt by the petitioner.The entire burden is on him. It cannot be said that it was not possiblefor him to prove and discharge that burden as the Majur Mahajan was aUnion entirely favouring respondent No. 1 nor can it be urged that thesefacts were also known to respondent No. 1 or were only within his specialknowledge and therefore the burden shifted on him to prove that he hasnot expended an amount exceeding the prescribed amount. Such a reason-ing, to my mind, cannot lie in the mouth of a person trying to establish acharge of corrupt practice. Difficulty of proof is no ground t3 be con-sidered in a proceeding of a quasi-criminal nature. He proves or he fails.But in this case, as I can see, it is not even such a desperate situation forthe petitioner as pointed out hereabove. He actually got produced inCourt the documents from which he could have proved that what respoa-dent No. 1 had stated as regards the joint expenses and some of thevouchers being of common expenses incurred, was false. Again he couldhave also called upon the Majur Mahajan to produce the necessarv accountskept by them in respect of expenses incurred Tor the election of respondentNo. 1. He could also have then examined Sumanbhai Desai becauseafter al! it was a matter of documentary evidence.

The point at issue so far as this particular argument is concerned is avery narrow o."e. Whether the sub-vouchers which were signed by res-pondent No. 1 contained a joint expenditure of all the candidates spon-sored b'v *he Maim Mahn.ian or was it expenses incurred for the mirposesof respondent No. 1 alone. As I have pointed out, the stand taken by

(15) A.I.R. 19S5 sr. *S^.

t.l.K.l N. K. MAKWANA V. J . G. PAKMAR 183

iespondeat JSo. i couid definitely have been destroyed by referring to thereturns filed by the otner candidates and other papers winim were actuallyDrougoc oeiore the Court and which were to be iound in hie Ex. K.Meieiy because buinanbhai Desai or the other persons concerned in ineMajur ivianajan are persons not tavourabie inclined to petitioner, cannever ao^oive him iroin discharging the burden that iay on him. ApartIrom tms as'p'ect, here as a matter of fact, respondent No. 1, has beenable even to snow that at least there is one voucher which prima facieproves his say and destroys the very basis on which the allegation is basedtu substantiate statement \B\ My attention was drawn to voucher No. 37wnicn is article No. 80 and sub-voucher which is article No. 81 in fileEx. 'R'. Artitcle sub-voucher No. 81 for which also petitioner wants tohold respondent No. 1 liable for the whole amount on tne face of it snowsthat what the >e»pondent No. 1 says is true. This sub-voucher is a biliof witness No. (3 Muijibhai Dahyabhai for respondent No. 1. He hasdeposed that at the time of the election, he was entrusted by theMajur Majahan with the work of painting cloth-posters for four wardsor constituencies and fle had charged Rs. 3 for each such poster. Thailie has been paid that amount by tne Majur Mahajan. Item No. 81 infile Ex. 'B' is a receipt dated 16th of February 1967 for that amount whichhe received and what was stated, in that document was correct. He hubfurther deposed that this shows that 21 posters for each of the lout-constituencies were prepared. On the posters he had painted the nameof the candidate for the respective constituency, his symbol and otherwriting that the particular candidate may have. He then deposed that hehad painted 21 such posters or boards in the name of Jesingbnai. in cross-examination the witness said that he had passed drawing examination. Hehad not done any other work of painting during the election. The orderlor painting those posters was placed by. Sumanbhai of Majur Mahajon.The work oil settling the amount was done by Sumanbhai. He repelledthe suggestion that he had prepared the bill showing that 21 posters foreach constituency were prepared according to the directions of Sumanbhai.He had done sj because as a matter of fact 21 posters were prepared toreach of the four different constituencies by him. He denied the suggestionthat all the 84 posters were prepared for the election propaganda ofimpendent No 1 only. The fact therefore remains that this article 81 —the bill of this witness that has been signed by respondent No. 1 only asa sub-voucher is a bill for the emmon expenses of preparing the postersl~r a!i the candidates supported by the Majur Mahajan. This certainlyblasts the theory of the petitioner that respondent No. 1 had signed onlytiiose voucher; wherein the whole expenditure shown was made forrespondent No. 1 alone. True it is thai the other bills prima facie d:>not show that they were the common expenses for all the candidates.But that does not mean that what respondent No. 1 had said is not true.In any case, to my mind, the petitioner has not succeeded in provingbeyond reasonable doubt that the sa;d expenses were wholly made for theresoondent No. 1 's propaganda only. Similar is the state of things asreaards matters stated in s'i'ement 'A' aM T h a v already dealt with it.This is the factual as'oec<\ As regards the alteration of corruot practiceHrd I ni'ed not examine 'he contention of law raised by Mr. Oza as this•'•'•!'>no nf mine on facts is sufficient to dispose of the ?roun<i of corrupt1 EC—13

*84 N. K. MAKWANA V. J . G. PARMAR [VOL. XXXH

practice alleged. But as arguments have been advanced by both sideson the legal position also and as me decision thereon would also go tothe root of the matter, ft deems proper to decide the point raised.

It was urged by Mr. Oza that the only corrupt practice alleged is undersub-section (6) of section 123 of the Act. Even if the corrupt 'ptacticeis established, the election of the respondent No. 1 cannot be declaredvoid under section 100(1) (b) unless it is proved by the petitioner thatthe corrupt practice of incurring the expenditure beyond the limit prescribedwas either committed by respondent No. 1 himself or his election agem,or by any other person with the consent of respondent No. 1 or hiselection agent. The submission is correct and has to be accepted. Sec-tion 123(6) reads as follows:—

"123. Corrupt practices.—The following shall be deemed to becorrupt practices for the purposes of this Act:—

(1) *(2)(3)( 4 )

(5) *

(6) The incurring or authorising of expenditure in contraventionof section 77.

Section 100(1) (b) reads as follows:—

"100. Grounds for declaring election to be void.—(1) Subject to theprovisions of sub-section (2) if the High Court is of opinion:—

(a) * * * * *

(b) that any corrupt practice has been committed by a returnedcandidate or his election agent or by any other person with theconsent of a returned candidate or his election agent; or

(Q\ * * * * *

i d ) * * * * *

*****

*****

*****

****

Now in this case, there is no allegation that the corrupt practice iscommitted by the election agent or with his consent. It is proved thatall the expenses were made by the Majur Mahajan and respondentNo. 1 had not to pay a single p'aisa from his pocket. So there, is noquestion about respondent No. 1 himself having incurred the expenses.The only ingredient then left to establish the corrupt practice is whetherhe authorised the incurring of the expenditure beyond the prescribed limit.Mr. Oza urged that the term "authorised" neces^arilv implies the conceptof the 'pecuniary liability falling on the person authorising. If the personwas not to make good the expenses incurred, there is no case of authoris-ing the expenditure on his behalf. The submission requires serious consi-deration indeed.

E.L.R.i N. K. MAKWANA V. J . G. PARMAR 1S5

The dictionary meaning or the word "authorised" is to give authority,to sanction, it is also important to notice that there were two ingredients01 corrupt practice itself as we have noticed. One is "incurring" and mesecond is "authorising". The corrupt practice therefore will be committedby tne returned candidate it he eitner incurs nimsell or authorises to incur.In both cases ne will be said to have committed tne corrupt practice nim-self under clause (b) of sub-seciion (1) of section 100. But even udoes not either incur himself or authorise such expenses to be incurred,his election can still be declared to be void if it is proved tnat he consentedto such incurring or authorising of such expenses by any other person.Legislature has therefore intended to distinguish between the two expressions"authorised" and "consent". Most reasonable differentiation that can bethought of between the two expressions is that "authorisation" implies theright to authorise expenditure on his behalf with the result pecuniaryliability. While with regard to the expression "consent" there does notarise by necessary implication any such 'pecuniary liability. He merelyagrees when he consents that nothing may be done and raises no objectionto it being done. By merely so consenting, no pecuniary liability by anynecessary implication follows. In this view that I am taking, I amsupported by the following two decisions. In G. Vasantha Pai v. Srinivasan(1(i) decided by the Madras High Court, Rajamannar C. J. speaking forthe Bench decided that authorisation of the expenditure implies that theexpenditure so authorised would have to be met by the candidate himself.In the said case, the Tribunal had held that the respondent was guiltyof the corrupt practice set out in section 123(7) of the Representationof the Peo'ple Act on the ground that the respondent had failed to includein his return of expenses amounts which the respondent should be deemedto have expended for three purposes namely, (1) to insert advertisementsrelating to the election in newspapers, (2) printing of certain electionmanifestos, and (3) the printing of copies of electoral rolls for purposeof canvassing. The Tribunal had found that none of these expenses werecharged for from the respondent, that is to say, that the proprietors ofthe printing presses at which the several documents were printed, did notcharge the respondent for the 'printing or for the paper. The learnedJudges of the High Court observed that this finding though a finding offact, on that finding the question of law arises whether in the circumstancesthe respondent could be held to be guilty of the corrupt practice set outin section 123(7) of the Representation of the People Act. This provisionnf law is of course before the law was amended and it runs as follows: —

"The incurring or authorising by a candidate or his agent ofexpenditure, or the employment of any person by a candidateor his agent, in contravention of this Act or of any rule madethereunder."

The learned Judges then observed that it was clear that the respondentcould not be said to have incurred any expenditure in the printing of theabove documents. Then the question was whether he could be said toTiave authorised such expenditure and reiving on the earlier two decisionson Narasimhan v. M. G. Natesan Chettiar (17) and Muthia Chettiar v.'Sow. Ganesan(ls). In the said case it was held that it could not be

(16) XXII F I . B . 221 (18) XXI F.T.P.(17) XX F . I .R I .

I 86 N. K. MAKWANA V. J , G. PARMAR LVOL. XXXIli

said that he had authorised such expenditure it was held under similarcircumstances that the fact that a person interested in the candidate himselfexpends money to help the candidate in his election would not render thecandidate guilty of the corrupt practice set out in sub-section (7) of section123. The authorisation of the expenditure eventually would have to bemet by the candidate himself. Having referred to these decisions, thelearned Judges of the Madras High Court came to the conclusion thatthe finding of the Election Tribunal that the respondent was guilty of thecorrupt practice set out in section 123(7) was vitiated by a manifest error.of law due to the misconstruction of the said provision.

in Sheopui Singh v. Harish Chandra{14) to which 1 have alreadyreferred to for another purpose, the learned Judges have made the follow-ing observations:—

"One incurs expenditure when one actually spends money. Oneauthorises expenditure when one incurs a pecuniary liability."

Relying upon this principle, they held as pointed out earlier that in.borrowing a vehicle whicii ihe lender lends gratuitously, DO pecuniaryliability is incurred. The las. decision whicii 1 would like to reter to onthe point is Prabhudas v. Jorsang ( i a ) which is decision of the BombayHigh Court, to my mind, this decision is very helpful to the stand takenby respondent No. 1. In this case, the principle has been affirmed ona different argument. In the said case A, the respondent was a candidatefor a seat in a State Legislative Assembly constituency set up by theCongress Party and B was the candidate for the Parliamentary constituencyset up by the same party for a particular area. The election to the.Parliament and the Assembly were to be held on the same day, place andtime and the electors in respect of both were the same persons. A ana Bagreed to share the expenses that A may incur in the election campaign.The total amount spent in the. election campaign namely Rs. 13,861 wasapportioned between A and B and A showed in his return of electionexpenses the. amount of Rs. 7,361 which A had to bear under this apportion-ment. The maximum which A could incur under the rules wasRs. 8,000. In the election petition it was contended that A hadcommitted the corrupt practice referred to in sec'.ion 123 (6), viz., incurringor authorising expenditure in contravention of section 77. The learnedJudges came to the conclusion that there was nothing objectionable in theagreement between A and B sharing the expenses in the circumstances.There was nothing illegal or a contravention, technically or otherwise, ofany election rule in such an agreement, provided it w"s bona fide and'provided the requirements of the Act and the rules relating to maintenanceof accounts were faithfully carried out. A and B could not be treatedas asen's of each other and each canmt be regarded as having incurred'Rs 13,861. Now pausing here for a moment, it is to be noted that thereis a similarity of facts so far as the present case is concerned. Actuallyrespondent No. 1 and the other three candidates were sponsored by theMajur Mahajan on the Congress Ticket. Now so far as expenses areconcerned, as a matter of fact, in this case the candidates themselves had'

(14) A I.1?. I9'8 Paiasthan 324. (19) XVIII P.L.R. n o

ii.L.K.J N. K. MAKWANA V. J . G. PARJY1AR I a 7

not to pay anything trom their pocket and all the expenses were made and.met by die Majur ivianajau and in order to fulfil tne technicality oi lawand rules, accounts were maintained in respect of each ot the candidates.As the expenses were incurred on many items in common for all the fourcandidates, common voucners were prepared by the persons with whom theMajur Mahajan had dealt with for various items and out of those commonbills, the expenditure actually incurred in respect of the respectiveconstituencies or candidates for those constituencies was allocated to therespective candidates. The other principle which is decided by this rulingwas that as a political party is interested in carrying on propaganda infavour of "the party as such, moneys that it may spend in furtherance oiany sucn propaganda cannot in law be said to have been incurred as anagent of the candidate that may be set up under the aegis of the party.I he mere fact that the expenses incurred by a party organisation wasincurred with the consent of the candidate set up by the 'party, and ifthese expenses are included, the maximum prescribed would be exceeded,is not sufficient to bring the case under section 100(1) (d) . It hasfurther decided that it cannot be laid down that if a candidate knew thatany person was incurring any expenditure and the candidate was gettingthe benefit of the same and if he kept quiet, that would amount to givinghis consent and that such consent amounts to authority. There is onemore observation which I may refer to with advantage and it is as.follows: —

"'Expenses incurred by a political par.y which sets up candidates fornumerous constituencies, not in the matter of contesting theelection of a particular candidate set up by the party itself, butby way of propaganda relating to the principles or policywhich the party stands for, cannot be regarded as expensesincurred for and on behalf of the candidates in the matter offighting the election for a particular constituency".

So far as the present case is concerned, to my mind, it stands on abetter footing for reasons that I have already given.

Mr. Vakharia has tried to urge that the respondent No. 1 had committeda corrupt practice because he had signed the vouchers and knew that theexpenses were done on his behalf. Therefore in any case there is consenton the part of respondent No. 1 to the committing of the corrupt practiceeven if it did not amount \o authorisation. Mr. Oza countered that in thiscase there is no allegation at all in the petition that the alleged corrupt prac-tice was committed by other persons with the consent of respondent No._l.The only allegation is of authorising the expenditure beyond the limit prescrib-ed and therefore the petitioner cannot be allowed to urge that because respon-dent No. 1 had signed the bills and because he knew that expenses werebeing made on hisbehalf, there is consent given by him to the committingof the corrupt practice. There is force in the submission of Mr. Oza.

Where the election of a returned candidate is sought to be challengedand declared void on the ground of corrupt practice, as alreadv pointedout, it has t^ be specifically'"pleaded and positively proved. The petitionercannot be allowed to plead one kind of corrupt practice and try to prove

• kind of corrupt practice. To my mind, there is no doubt that

1 8 8 N. K. MAKWANA V. J . G. PARMAR LVOL. XXXII

there is no allegation in the petition that ihe corrupt 'practice undersection 123(6) is committed by others with the consent of respondentNo. 1. All along the allegation is mat respondent No. 1 has committeda corrupt practice of incurring and authorising expenditure in contraventionof section 77 read with rules 86 and 90 of the Conduct of Elections Rules,1961, in as much as he had exceeded the prescribed limit of Rs. 8,000.The submission of Mr. Oza has therefore to be sustained and 1 find thateven on this legal contention raised by the petitioner, the ground ofcorrupt practice fails. The result is that the issues Nos. 11 to 15 are notproved and I find these issues in the negative.

Issue No. 5 is a contention raised on behalf of respondent No. 1 thatthe petitioner did not comply with the provisions of section 83(1) (b) ofthe Act. To my mind, it hardly requires any discussion at this stage. Nopetition can be dismissed for want of particulars or non-compliance withsection 83(1)(b). If the Court finds that no particulars are given orbetter 'particulars are required and an opportunity has to be given to thepetitioner to comply with it and in case of failure only the corrupt prac-tice alleged may not be allowed to be proved. Besides, no specific sub-missions were advanced on this issue by Mr. Oza. I hold the issue inthe negative. /

Similarly issue No. 3 was also a contention raised on behalf of therespondent No. 1. But this issue was not pressed by Mr. Oza. Apartfrom that, I find that the petition is verified as required by law. I findthe issue in the negative.

Issue Nos. 6 and 23 can be dealt with together. Issue No. 6 arisesout of the contention raised on behalf of respondent No. 1 that he didnot admit the fact that the petitioner and respondent No. 2 were membersof Scheduled Caste and issue No. 23 involves the question as to whetherthe petitioner is entitled to a declaration as duly elected member of theGujarat State Legislative Assembly in case the election of respondentNo. 1 is set aside. Now as regards issue No. 6, it has to be stated that,no challenge was actually directed on behalf of respondent No. 1 on theclaim of the pstitioner of his being a member of the Scheduled Caste whenevidence was actually led before this Court, and I n a v e no hesitation inholding that issue in the affirmative. But that does not help the petitionerso far issue No. 23 is concerned. As a matter of fact, in the light of myfindings on the other issues that on neither ground the election of respon-dent No. 1 can be declared to be void, the consideration of this issue doesnot survive. But evep if the election of respondent No. 1 had been setaside, it would not have been possible to declare the petitioner as duly•elected because the difference in the votes secured is more than 3.700and there is no definite evidence to prove that votes of Christian populationeven if given to the petitioner, would have turned the scales. Again inlaw, the petitioner cannot claim that all the votes cast in favour ofrespondent No. 1 should be treated as invalid votes or thrown away voteson the ground that the nomination of respondent No. 1 was improperlyaccepted and therefore petitioner should be declared elected. I do notinid it necessary to discuss the point at length because the matter is set•at rest by the decision of the Supreme Court in Kashav Lakshman

E - L - R j N. K. MAJCWANA V. J . G. PARMAK.

v. Dr. D. I. Ananda </"; wne*ein it nas been decided tnat thequestion of throwing away of votes cannot arise .in ine aoience ot somespecial pleading ihat particular voters had cast their votes with knowledgeor notice that the candidate for whom they had voted was not eligiblefor election and that consequently, they had deliberately thrown awaytheir votes in favour of a disqualified person. In the said case, the nomi-nation paper of the respondent was found to have been wrongly acceptedand his election was declared invalid and th e appellant had claimed thatall the votes cast for the respondent must be treated as invalid votes andaccordingly the appellant had received a majority of the vahd votes withinthe meaning of section 101 of the Act and therefore he should be declaredduly elected. Also Their Lordship's further held that when a nominationof a candidate is accepted, he is in the eye of law a validly nominatedcandidate for the purpose of receiving votes and the votes cast in his favourcannot be treated as "invalid" votes for the purpose of section 101 eventhough the nomination was afterwards found in an election petition, tohave been improperly accepted.

The petitioner tried to challenge the election of respondent No. 1 onvaripus grounds including corrupt practice having been committed by him.As indicated hereabove, law requires the allegations which are the basisof the challenge and particularly those of commission of corrupt practiceto be strictly established. So far as corrupt practice is concerned, evenif two equally reasonable inferences or conclusions are possible, one ofinnocence and the other of guilt, the former has normally to be preferredAll the same, the Court has also to keep in mind that though the electionof a successful candidate is not to be lightly set aside, one of the essentialsof election law is to safeguard the purity of the election process and tosee that persons do not get elected by flagrant breaches of that law orby resorting to corrupt practices. In the background of this well-estab-lished principle of law, I have with care examined the_ allegations and atsome length referred to the evidence on record. Giving my best conside-ration to the evidence on record and the principles of law bearing on therespective points urged by the Learned Advocates of the parties, Ihave come to the conclusion that the petitioner has failed to establishany of the grounds he had made out in his petition. Therefore thepetition fails.

The last question to be considered is about costs. It is true thatthough the petitioner had challenged the election on various grounds inthe petition, he had not pressed several issues even before evidencewas led and even after the evidence was led he did not press some moreissues. All the same the grounds pressed were serious. So far as thefirst ground is concerned, in effect it alleged fraud on the public and theauthorities concerned by misrepresenting himself as a member of theScheduled Caste though he was a Christian. The second ground allegedwas of corrupt practice. The actual recording of evidence and hearingof arguments lasted for ten full days. Under the circumstances, I thinkthat it will meet the ends of justice if I fix Rs. 2,000 as the counsellors'fee and Order that the petitioner shall pay Rs. 2,000 for Advocates' feesplus the taxed costs to respondent No. 1 and bear his own. RespondentNo. 2 should bear his own costs. I order accordingly.

(20) XXI E.L.B, 465.

193 N. K, MAKWANA V. J . G. PARMAR [VOL. XXXII

ORDER

The petitioner has failed to establish any of the allegations on whichhe sought to have election of respondent No. 1 set aside. This electionpetition, therefore, fails and is dismissed. The petitioner shall payRs. 2,000 for Advocates' fees plus the taxed costs for other expenses torespondent No. 1 and shall bear his own. The said costs to be recoveredby respondent No. 1 from the security deposit made by the 'petitioner.Respondent No. 2 shall bear his own costs.

Petition dismissed

IN THE HIGH COURT OF MADHYA PRADESH AT INDORELAXMINARAYAN

v.

BANKATLAL

(H. R. KRISHNAN I )

October 24, 1967

Representation of the People Act, 1951, s. 81(3)—Failure of election peti-tioner to supply annexures filed with the petition to the respondent—Effect—Petition whether liable to be dismissed.—Contract with Gov-ernment controlled Corporation—Whether a contract within the mean-ing of s. 9A of the Act—Supply of molasses to Government controlledCorporation under the provisions of the Industries (Development anaRegulation) Act 65 of 1951 and the Molasses Control Order made by-Central Government (S.O. 770 of Central Government Gazette dated8th April 1961)—Whether amounts to a contract—No contract whereparty has no volition in any matter relating to the supply but actswholly under orders of the Molasses Controller.

Corrupt Practice under s. 123 of the Representation of the People Act,1951—Announcement by Chief Minister of measures for relief fromland revenue already taken and to be taken by Government—Whetheramounts to bribery of voters—Candidate how far responsible for actsof party which sets him up—Party whether an agent of the candidate-—Appeal made by person holding religious position in favour of candi-date whether a religious appeal—Expenses incurred by candidate'sparty or by his supporters out of their own pocket cannot be includedin expenses incurred by candidate.

The petitioner and the respondent were candidates from the JaoraVadhan Sabha constituency in Madhya Pradesh at the General Election heldin February 1967. The respondent, a Congress Party candidate, won theelection while the petitioner representing the Jan Sangh was one of thelosing candidates. In the election petition filed by him the petitioner madevarious allegations of corrupt practices within the meaning of s. 123 ofthe Representation of the People Act, 1951, against the respondent; he alsoalleged that the respondent had at the relevant time a subsisting contractwith the Government inasmuch as he was managing director of the JaoraSugar Mills which had an agreement with a Government controlled Corpo-ration. According to the respondent the supplies were made under th?orders of the Molasses Controller under the provisions of the Industries(Development and Regulation) Act, 1951, and the Molasses Control Order,1961, and being compelled sales did not amount to contracts within themeaning of s. 9A of the Representation of the People Act, 1951. Therespondent also raised a preliminary objection to the petition—that inas-much as copies of the annexures to the election petition had not been sup-plied to the respondent, there had been non-compliance with the provisions

193

192 LAXMINARAYAN v. BANKATLAL fVOL. XXXU

of s. 81(3) of the Act and the petition therefore deserved to be dismissedon this ground alone.

HELD: Dismissing the petition, (i) While under s. 81(3) it is manda-tory to serve a copy of the petition on the respondent it is not every an-nexure that can be treated as an essential and inevitable part of the petitionfor this purpose. Where, as in the present case, most of the annexureswere a superfluity and sufficient portions thereof were either quoted or sum-marised in the petition, it should be held that copies of the 'petition' had beenfikd even when the extra copies of the annexures had not been supplied.Certainly when in respect of any particular allegation or detail the petitionis not clear or self-contained and copies of annexures have not been sup-plied for service on the respondent, that particular allegation or detail shouldbe ignored. On this view the present petition could not be dismissed foralleged breach of the requirement in s. 83(3).

(ii) The purpose of s. 9A is to safeguard against the possibility of influ-ence by the legislator being actively interested in the business which worksthe contract with the Government. Looked at that way the managingdirector or for that matter any director of a company would be hit by s. 9Aon account of contracts of his company with Government while a mereshareholder may not be so hit.

A statutory corporation such as in the present case is really owned bythe Government and is run under the supervision of the same class of offi-cers who are answerable to Government on the administrative side. Thusthe likelihood of influence is just the same whether the enterprise is run inwhat is called the "departmental form" or through a statutory corporation.The words "appropriate Government" in s. 9 A must therefore be interpretedin the same wide sense in which the Courts have interpreted the word"State" in Article 12 of the Constitution.

However in the present case there was no contract between the appellantcompany and the statutory corporation. In case of controlled distributionthere is no contract between the person who under threat of prosecution isto supply goods and the one who if he wants the goods at all has to takethem from the person, at the time, in the manner, and at the price fixed bythe controlling authority. One can certainly envisage a situation where acontract is hedged in with conditions that narrow the choice of the parties;but as long as there is some choice it can be said there is a contract; whenthere is altogether no choice, there is no contract and there is only com-pulsion.

Further, on the facts of the present case there was no subsisting contractas the permit under which the goods were to be supplied had already expiredat the relevant time.

(iii) An announcement by a Chief Minister at a public meeting of ameasure that the Government had taken for the benefit of cultivators waswithin the exception contained in the proviso to s. 123(2) and did notamount to the corrupt practice of bribery of voters.

(iv) A tirade against the party setting up a candidate does not amountio an allegation of fact relateable to the personal character or conduct of acandidate. Therefore the distribution of a pamphlet by the Congress partyholding the party which set up the petitioner as a candidate, nacs*Y thf

E.L.R..1 LAXMINARAYAN V. BANKATLAL 193

Jana Sangh, responsible for a certain incident of violence against the Prime:Minister did not amount to corrupt practice.

(v) The candidate is not ipso facto liable for the doings of his party,e.g., distribution of pamphlets and literature, as if the party was his agent.He would still be liable for certain acts of the party; but for that purposethere should be a definite indication of his having connived at these acts.

(vi) The mere fact that the person who makes an appeal on behalf of acandidate holds a religious position does not make the appeal one to religionunless the appeal itself has a religious colouring, or these is an element ofthreat or persuasion of superhuman or divine displeasure or reward in theappeal.

(vii) The expenses a political party incurs towards the propaganda for acandidate cannot be counted against the candidate if he for his part had beenhaving a separate agency and had been accounting for his own expenses.No doubt the candidate is one of the beneficiaries of the expenditure incur-red by the party; but that is no reason why the expenditure incurred bythe party should be included in the candidate's expenditure for the purposeof the limits prescribed in s. 77.

Sardar Mai v. Shrimati Gyatri Devi AIR. 1964 Raj. 223; Ch. Subbaraov. Member Election Tribunal Hyderabad A.I.R. 1964 Supreme Court 1027;Muraraka Radhye Shyam v. Roop Singh Rathore A.I.R. 1964 SupremeCourt 1545; Satya Prakash v. Bashir Ahmad Qureshi A.I.R. 1963 MadhyaPradesh 316; Mis New India Sugar Mills Ltd. v. Commissioner of SalesTax, Bihar A.I.R. 1963 Supreme Court 1207; Mangaldas v. State of Maha-rashtra A.I.R. 1966 Supreme Court 128; Singaremi Collieries Co. Ltd. v.Commissioner of Commercial Taxes Hyderabad A.I.R. 1966 Supreme Court563; Bhagwan Datt Shastri v. Ram Rattan Gupta and Bhagwan Datt Shas-tri v. Badri Narayan Singh II ELR 448; Ram Dial v. Sant Lai 20 ELR 482;referred to.

Election Petition No. 9 of 1967.

G. L. Oza for the applicant.

K. A. Chitale & A. M. Mathur for the opposite party.

JUDGMENT

H. R. KRISHNAN, J.—This is a petition under Section 81 of the Repre-sentation of the People Act by one of the defeated candidates in the JaoraVidhan Sabha (General) constituency (No. 288) in the election held inFebruary 1967. The sole respondent is**the elected candidate. The peti-tioner's political party is what is called the Bharatiya Jan Sangh while thatof the successful candidate-respondent is the Indian National Congress.The petitioner who has been described as Dr. Pande, is an Ayurevdicphysician of some local popularity at Jaora, while the respondent is anindustrialist of position and influence there. Evidence shows that the elec-tion was keenly contested, it being what in popular language is called a"prestige constituency". The petitioner polled 18600 votes as against thesuccessful candidate-respondent's 22633, while there was a third candidateset up by the Swatantra Party who having polled only 3384 forfeited hi*deposit. There is an issue as to whether he should have been impleadedbut I shall come to it at the proper context.

194 LAXM1NARAYAN V. BANKATLAL I VOL. XXXU

2. This case is peculiar not because of any particularly complicated•gicund raised by the parties; all the same, the hearing has been lengthy andthe arguments elaborate because nearly every one of the grounds possibleunder Sections 9A, 100, 123 and 87 of the Representation of the PeopleAct has b^en canvassed.

3. The general background is that the Jaora Vidhan Sabha constituencyis one of the four in the Ratlam District, including this as well as a largenumber of Vidhan Sabha constituencies—both general and reserved—is theLok Sabha constituency which is the one reserved for scheduled tribes. Asfar as the respondent was concerned he was canvassing and working forhimself and there was no collaboration or conflict between him and thecandidates for the Lok Sabha constituency. But from the view point ofthe political parties there was practical overlapping of the canvassing forthis candidate in the Jaora constituency as well as that party's Lok Sabhacandidate Sursingh. Similarly, the Jan Sangh which put up the petitionerfor this Vidhan Sabha constituency had also put up another candidate—Keshavsingh for the Lok Sabha constituency. In brief, the respective poli-tical parties were working on a broader front that these two candidateswho were concentrating upon their own interests in the election.

4. The petitioner was the sitting member, having been elected in the1962 election to the Madhya Pradesh Vidhan Sabha on the Jan Sanghparty-ticket. He had in fact stood and lost in the earlier election of 1957.On both those occasions he was opposed by the Congress candidate Dr. K.N. Katju who was elected in 1957 and was during his term the Chief Minis-ter of the State. His defeat by the petitioner in 1962 was in a sense aprestige loss to the Congress party and protanto a prestige gain to theJan Sangh. This has deeply coloured the attitudes of the candidates iniparties in the election of 1967.

5. The respondent is Bankatlal Todi. (His name has been spelt somewhat differently both in Hindi and in English by different persons on diffe-rent occasions sometimes as Venkatlal and sometimes as Vyanktlal; weshall, however, in this judgment spell it as he himself has been doing, i.e.•'Bankatlal"). He is a wellknown businessman and industrialist of morethan local importance. He owns in his own name a number of cottonginneries in the country side; he is also the managing director of the JaoraSugar Mills (P) Ltd., which is the property of the different members ofhis family with himself as the karta; in addition, he owns along with theother members of the joint family another sugar mill at Mahidpur in theUjjain District functioning in the name of Kaluram-Govindram; yet anotherenterprise in which he has a controlling interest is a transport concern called"The Active Transport Ltd.," wMch is a registered public limited liabilitycompany. He had not been in active politics before though it is commonground that he had been throughout a friend and sympathiser of the Cong-ress party. Whether or not his being put up by the Congress party hadsomething to do with the activities during the previous election of the em-ployees of the Jaora Sugar Mills in support of the Jan Sangh candidate hasbeen suggested and denied by the respective parties; but. it is not of an\consequence for our purpose. The question for us is, whether having beenset up by the Congress party and having won the election as a result ofcanvassing and the electioneering both bv him with his separate agency andby the Congress party as such, he is guilty of any of the breaches nnd cor-rupt practices alleged against him by the petitioner and denied by him in

E.L.R.] LAXMINARAYAN V. BANKATLAl. 195

his written statement, it is therefore convenient to take up the allegationsand the replies in the manner already tabulated in the issues framed in thisCourt and accepted by the parties.

6. The first heading consists of formal issues which are;

•1 Is the petition defective for (a)improper verification for wantof definite affidavit;

(b) want of necessary particulars;.(c) failure on the part of the peti-

tioner to file copies of the annexures along with the peti-tion for service on rhe re:pondent?''

The alleged vagueness of the affidavit and the allegations as mentioned h:(a) and (b) can at best entitle the respondent to a closer scrutiny of theevidence ior the possibility of its being after thought without having beenspecifically and clearly raised in the petition. The impropriety of the veri-fication consists according to the respondent of the failure to bring out inrespect of each of the headings who the person was that gave the petitionerinformation upon which he had made the averments. As far as the pirti-culars are concerned, the petitioner has on the one hand pointed out thelarge number of instances in which he has given time and place and also thenames of the agents to whom the practices alleged are attribUrd. On theother hand, the respondent has pointed out especially in respect of theexpenses incurred on transport, feeding and the printing of the literaturethat fuller particulars were possible and have been withheld. Since i amtouching on this while evaluating the effect of the evidence it is unnecessaryto expand on this at this place.

7. The position in regard to (c) is somewhat different. The petitionhas been accompanied by a large number of papers both printed and intypescript and including some newspaper issues as well. They have beennumbered as annexures A to Z and after it A-A onward making a totalnumber of 29. Some, but not all, of them have been exhibited in the evi-dence in an appropriate manner; the admission into evidence of some of theothers has been refused. The point that concerns us here is that the peti-tioner did no; file addition?! copies of the annexures for service on therespondent, with the result that the respondent got a copy of the petitionwhich is lengthy and elaborate enough but did not get copy of any of theannexures. This has been pointed out by the respondent in his writtcn-statement as a defect in the petition and a breach of what he alleges as themandatory provision in Section 81(3) :

"Every election petition shall be accompanied by as many copiesthereof as there are respondents mentioned in the petition and 'every such copy shall be attested by the petitioner under hisown signature to be a true copy of the petition."

It is urged under Section 86 (1) the petition should have been dismissedsolely on this ground for noncompliance with the provisions of Section81(3) .

8. While at it I note that by now there are quite a number of reporteddecisions on the proreriety and justification of rejection for noncon'pliance

J 9 6 LAXMIH VRAYAN V. BANKATLAL I v'OL. XXXII

with Section 81 ( 3 ) . Typical cases are those, reported in Samar Mai v.Smt. Gayatri Devi, AIR 1964 Rajasthan 223 where it was held thatthe rejection for nonfiling of copies of annexures was justified; a ad on the.other hand, the Supreme Court decisions in Ch. Subbarao v. Member Elec-tion Tribunal Hyderabad, AIR, 1964 Supreme Court 1027 and MurarkaRedhey Shyam v. Roop Singh Rathore, AIR 1964 Supreme Court 1545would seem to call for discretion in this regard. All the decisions are unani-mous in laying down the principal that the filing of the copies of the petitionis a mandatory requirement and any breach cannot be condoned. Anotherprinciple on which there is unanimity is that the word "copy" should beinterpreted reasonably and not very stiffly so that a copy which is substan-tially accurate will do even though there may be omission or mistakes of noconsequence. What to my mind is the real problem in the instant case isnot yt all whether the failure to file copy of the petition is a fatal breachwhich certainly it is, but whether and in what circumstances an annexureforms an essential and inevitable part of the petition. If every anexures socalled which the petitioner chooses to stick to his petition is a necessary partof it, it is obvious that the omission to furnish copy of even one of theannexures is also a breach. The position in the Rajasthan case was thatannexures were themselves almost to the exclusion of the petition the allega-tion of corrupt practices. In the petition itself the recital seems to have beentnat such-and-such corrupt practice indicated in the annexure numberedsuch-and-such had been committed; accordingly if one missed the annexuresthe petition could make no sense in that regard. On the other hand a typeof prtitun is possible and is by no means uncommon, where the annexureis r-j"erred to, but the contents in so far as they bear on the allegation arecither bodily reproduced in the petition itself or are summarized with clarityand definiteness; in such a case an annexure has a purely subordinate andincidental sidficance and may be a superfluity. The test in all these casesI would apply is whether without the annexure concerned the allegation intne petition is nrecise or make such sense as to enable the respondent vianswer it and the Court to decide; or is it such that without looking in'.othe annexure the Respondent cannot reply nor the Court arrive at a decision.In the former case I would hold that the annexure is a superfluity and is nolan essential part of the petition; and in the latter as was the position in the,Rajasthan case I would hold that the annexure is an essential part olthe petition itself.

9. Tt is conceivable that in a particular petition some of the annexures are superfluous for reasons set out above and the rest of them ait.1

essential. When a large part of the annexures is superfluous their contentsbeing already part of the petition and some of the annexures essential, theproper course as it appears to me is to ignore all the allegations as can bederived only from the annexures which have not been furnished in copyfor service en the respondent and proceed in respect of those allegationwhich emerge from the petition itself without reference to the annexuresmentioned there. Bv this test practically all the allegations emerge outof this petition itself. In respect of most of the allegations sufficientquotations have been given. There are instances as in Paragraph 10-A(xvii) where a large number of annexures aie lumped together by mere fefe-tence to tbeir index letter; but there the contents of the annexures 're alto-gether irrelevent; all that the petitioner says is that so many handballs andposters had been brought out and expenses incurred in their printing.Similarly the correspondence connected with the nomination has been re-ferred to as Annexures A and B; but there again the nomination and

3.L.R.] LAXMINARAYAN V. BANKATALAI. X97

acceptance have been set out in the petition which in any case are noncon-troversial. I would, therefore, in a case like this hold that where the annex-ures are a superfluity and sufficient portions are either quoted or summarizedit should be found that copies of the "petition" have been filed even whenthe extra copies of annexures have not been supplied. Certainly when inrespect of an'y particular allegation o r a detail the petition is not clear orself-contained and copies of annexures have not been supplied for serviceon the respondent that particular allegation or detail should be ignored.On this view I would not dismiss the petition itself for the alleged breach

•oi the requirement in Section 81 (3 ) . In respect of most of the allegationsthe quotations have been incorporated in the petition itself, and ti; e annexures are superfluous.

10. The second heading regarding the petitioner's failure to implead tncthird candidate Mumtaz Ali Khan has not been pressed by the respondentThe issue runs:

"2: (a) Is Shri Mumtaz Ali Khan one of the losing candidates anecessary party in view of certain allegations in the petition?

(b) If so, what is the effect of his nonjoinder?"

The allegation in fact is—"10. ,(c) (i). That the returned candidate the respondent on

21-1-1967 offered to Shri Mumtaz Ali Khan a candidate atthe election an appointment to his son in Jaora Sugar MillsPrivate Ltd., for withdrawal of his candidature from electionof Jaora Assembly Constituency?"

Whether or not this has been brought home I shall consider under heading5-Improper Inducement. On the immediate question whether MumtazAli Khan was a necessary party and the petition is liable to dismissal forhis nonjoinder, the answer is simple. This is not an allegation againstMumtaz Ali Khan; in fact it is not even suggested that he accepted theinducement and withdrew. Actually he contested the election. Thereforehe is not a necessary party.

11. The next heading is covered by Issue No.3:

"3 . Is the respondent, admittedly the Managing Director of theJaora Sugar Mills (P) Ltd., disqualified in view of the agree-ment for the supply of molasses between the said niJIs on theone hand and on the other the Ratlam Alcohol Plant anundertaking of the Madhya Pradesh State Industries Corpora-tion which is financed and controlled by the Government ofthe State of Madhya Pradesh ?"

On this heading there has been an elaborate discussion with Ml citationof case law; but the problem is not at all difficult or complicated. Thefactual posit'.on is as alreadv noted that the respondent is tin; ManagingDirector of the Jaora Sugar Mills (Private) Ltd. I n a sense that concernitself is his private property or the property of the family of which he is

the karta. There is a Government undertakine called the Rat!im AlcoholPlan* actuallv run bv the s'atutorv Madhya Pradesh State Industrial Cor-poration. This is wholly owned bv Government, but technically is astatutory corporation with an independent juristic identify. The mainniw-materia] for manufacture of alcohol here is tnnfa^e.s a b\ -product orrather a waste-product in sugar mills. Presumablv other suei c mills also

l9% LA>.AU \ iKA; AN V. BANKATLAL [VOL. XXXU

supply this Ratiam Alcohol Plant but what we are concerned with is thesupply by the Jaora Sugar Mills of large quantity (1600 ton-,) in the year1966. The question h not about the supply, but about the manner inwhich the supply was brought about and whether in tnat set up, it is acontract either between the Jaora Sugar Mills and the Madhya PradeshState Industrial Corporation, or between the respondent as the ManagingDirector of the former and the State of Madhya Pradesh as the owner oftiie iatter.

• 2. For this one has to go to ihe iaw and rules under which tne Mohsses.Controller makes allotment of the molasses stored by different sugar Jac-tories. One of the orders made under Section 18-G of the IndustriesDevelopment Regulation Act of J9M (65 of 1951) is the Molasses Con-trol order made by the Central Government (S.0.770 of the CentralGovernment Gazette dated 8th April 1961). i'r.is creates the office ofthe Molasses Controller, the appointment to be made by the State Govern-ment. In this States the Molesses Controller is no other than the Director•of Industries. Under this order nobody can sell molasses without adirection or permit issued by ihe Controller. The Controller fixes theprice, as well as the quantity that any enterprise requiring molasses hasto lift from this or that sugar factory which is in stock, and often iixes thetime-table. In practice the order or requisition is made in duplicate and.served one on the allottee and the other on the sugar factory that has tosupply. Tne order dated 22-6-1966 filed as respondent's exhibit (R/5) istypical It is called the permit for molesses and directs the Ratiam Ako.i 1l-:ant to lift before the 20th July 1966, 1600 tons of molasses fromthe Jaora Sugar Mills (P) Ltd., a counter part is sent to the Sugar Millsand to certain other authorities concerned with the transport, which, how-ever, we need not detail here. The direction to the Sugar factory [A todeliver the molasses and collect nothing more than ihe price which hasalready been fixed and gazetted.

13. This it is contended by the petitioner, has the effect of a subsistingcontract between the respondent as the Managing Director of the sugar millon the one hand and the Government of Madhya Pradesh as the owner ofthe Ratiam Alcohol Plan, on the other, and is accordingly a disqualificationunder Section 9A of the Representation of the People Act. As .uains'it, the respondent's is a four-fold answer. First, that whatever this dealruigh' be, it ceases to operate after the 20th July 1966, to be sure .1 simi-lar allotment was made on 4-3-1967 for 911 tons; but that was of courseafter the election. And if indeed as is quite possible part of the 1600 Tonsremained unlifted even during the period of the election, still this der.l orallotment had ceased to operate and had admittedly not been renewedor extended/ Secondly and thirdly, it is urged that Jaora Sugar Mills (P)Ltd., is a different juristic entity from Bankatlal Todi the individual whois the candidate respondent: in a similar manner the Madhva Pradesh Indus-trial Corporation which owns and runs the Ratiam Alcohol Plant is a statu-tory corporation juristically separate from Government. Finally, it is? m : e i that there, being absolutely no nexus between the Ratiam AlcoholPlant on the one side and the Jaora Sugar Mills on the other, there is nocontract, it being really a directed or compelled "sale" which though des-cribable as "sale" in popular language is not really a sale in the sense thatit follows contract.

E.L.R.J LAXMINARAYAN V. BANKATLAL

14. Now the first ground is factual and patent. Whatever the legalsignificance of the arrangement by which the Molasses Controller directsthe Ratlam Alcohol Plant to collect the molasses and pay the controlledprice and the Jaora Sugar Mills to deliver the goods, it was a strictlylimited duration:

"The party is requested to lift the released quantity of molasses by20-7-1966 positively, failing which the permit will be treatedas cancelled and no application for extension will be enter-tained."

It has come out in evidence that the Ratlam Alcohol Plant did not succeedin clearing the entire quantity and something was still left over in the pitsof the sugar mill which along with the molasses of the next crushing seasonwas ultimately collected and lifted by the Ratlam Plant after March 1967was not in accordance with the permit issued on 22-6-1966 but in accord-ance with the new permit issued on 4-3-1967. As far as the permit ofJune 1966 was concerned it had expired on 20-7-1966. It is of courseconceivable that the Molasses Controller could, on representation eitherby the Ratlam Plant or the Jaora Sugar Mills, extend or renew the permit;but as a matter of fact he did not. This is not a continuing arrangementbut an ad hoc direction with a time limit and the moment the time expiredthe arrangement had ceased to exist. Looked at this way, even on theassumption that this is a contract between Government and the JaoraSugar Mills, it was not subsisting at the time of the election; the first per-mit spent itself out on the 20th July 1966, (even if the entire, quantityhad not been lifted by the allottee) well before the beginning of the elec-tion period and the second permit came into existence on 4-3-1967 wellafter the election had ended.

15. It is an interesting question how far the Managing Director of ajoint stock company would be for the purposes of Section 9A affected bya contract between Government and his company. The only case cited inthis regard as the one reported in Satya Prakesh v. Bashir Ahmed Qureshi,AIR 1963 Madhya Pradesh 316. There the person concerned was ashareholder. It is certainly understandable that a shareholder should notbe disqualified if the company in which he holds the share enters into acontract with Government for the very simple reason that ihe is not incharge of the active conduct of the company's affairs; but when he is adirector and especially the managing director, he is so closely associatedwith the conduct of the business of the company that it would on the faceof it be wrong to hold that he is not affected because the contract is inthe name of the company. After all the purpose of Section 9A is to safe-guard against t^e possibility of influence by the legislator being activelyinterested in the business which works the contract with the Government.Looked at that way the managing director, or as for that matter any direc-tor of a company would be hit by Section 9A on account of contracts ofhis company with Government while a mere shareholder may not be sohit.

16. The position in regard to notional or jurisdic ownership of theenterprise that enters into the contract on behalf of the Government issomewhat more complicated. It may be urged that in the strict letter ofthe law a contract with the State Government properly so called. But itis to be remembered all the time that a statutory corporation of this type1 E.C.—14

2OO LAXMINARAYAN V. BANKATLAL [VOL. XXXII

is really owned by the Government and is run under the supervision of thesame class of officers who are answerable to the Governments on theadministrative side. Thus the likelihood of influence is just the samewhether the enterprise is run in what is called a "departmental form" orthrough a statutory corporation. I would interpret the words '•appro-priate Government" in Section 9A in the same wide sense in which theCourts have interpreted the word "State" in Article 12 of the Constitu-tion. Thus in case we find that the arrangement described above is acontract, it would be equivalent to a contract between the managing direc-tor on the one side and on the other the State Government which reallyowns the statutory corporation.

17. This takes us to the problem whether the arrangement isreally a contract between the person who lifts the molasses in accordancewith the direction of the Controller and one who is ordered by him to letit lifted from his pits or godown. For reasons already indicated under"suhwKi'ng" it is of no practical consequence here whether or not wehold this to be a contract. But the problem is of great importance andmay occur in many other cases where the candidate may be deliveringgoods to Government or to a person designated by Government (in accord-ance, with a direction under statute the disobediance of which is punishablein a criminal court. A considerable amount of citation and general the•orizing has been made at the bar, but the problem is not very difficult. Fora contract there should be a nexus or consensus between the two parties.In a case like this the permit-holder on the one hand and the person whois to honour the permit have not even met or discussed the deal. Evenif the agents of the Ratlam Plant and the Jaora Sugar Mill had met anddiscussed, they could not have varied the terms in the minutest detail.For instances, they could not change the price, or the quantity, or thetime-table; if either of them did it he would have been liable to prosecu-tion and punishment under Section 24 of the Industries Development andRegulation Act. Obviously, such an arrangement cannot be a contractin any sense. Passages from some modern textbooks have been read outat the bar to show that in the modern society the notion of laisses fairehas undergone radical changes. This is perfectly true. But all this meansis that a good deal of what used to be formerly within the field of thecontract has now come into the field of control or status. But that doesnot alter the situation that in case of controlled distribution there is nocontract between the person who under the threat of prosecution is tosupply the goods and the one who, if he wants the goods at all, has totake it from the person, at the time, in the manner, and at the price fixedby the controlling authority. One can certainly envisage a situationwhere a contract is hedged in with conditions that narrow the choice ofthe parties; but as long as there is some choice we can say it is a contract;when there is altogether no choice, there is no contract and there is onlycompulsion.

18. While at this, the parties have cited caselaw regarding sale ofgoods,—the line pursued by the petitioner being that there are instancesIn which the Courts have held that even a compelled or directed sale canbe a sale, and since a sale is always deemed to be something done in im-plementation of a contract, a compelled sale also involves a contract. Aswill presently appear, this is fallacious. We need look into the threefollowing decisions only; M/s New India Sugar Milsl Ltd. v. Commissionerof Sales Tax, Bihar, AIR 1963 Supreme Court 1207; Mangaldas v. State

E.L.R.l LAXM1NARAYAN V. B A N K A T L A L 2OX

of Maharashtra, AIR 1966 Supreme Court 128; and Singareni CollieriesCo., Ltd,, v. Commissioner of Commercial Taxes, Hyderabad, AIR 1966Supreme Court 563. None of them deal with contracts that would dis-qualify the candidate under Section 9A of the Representation of the Peo-ple Act; but they do set out what a "sale" proper should be as distinguish-ed from' a '•compelled sale". The first of diem arises out. of the attemptby the State Government of Bihar to levy sales-tax on a quantity of Sugardelivered by a sugar mill to the holder of an allotment by the Sugar Con-troller. There as in the instant case there was no voluntary sale or agree-ment to sell as understood in the Sale of Goods Act or the Contract Act.There was, however, the delivery of the quantity of sugar by the sugar millto the designated allottee at the controlled price. The majority view wasthat it was" not a sale for the purpose of the Bihar Syles-Tax Act andaccordingly the "sale" was not subject to that tax. The minority viewwas that" in the modern context even a sale of this kind might be a saleattracting the Sales-Ta;: Act. Apart from the fact that the extreme viewdid not 'coomend itself to the majority we have to note that the minorityJudge was dealing with tliC problem whether or not the transaction was asale of a peculiar variety in the modern context. Ever in the minorityjudgment there is no finding that it is necessarily a contract as understoodin the law. Certainly, the vast majority of sales would follow contracts;and (in fact on the majority view a sale proper would be a contract. Andit is exactly because the element of volition was wanting in this transactionthat the majority held it was not a sale. If we must call it a "sale", it isof that peculiar kind which has no contract behind it. The view taken inthe third case, (AIR 1966 S.C. 563) is to the same effect.

19. The petitioner has pointed out that in the second case (AIR 1966S.C 128) a compelled sale was treated as a sale for the purpose of thelaw. But then the position in that case was so peculiar that it is notpossible to extend that principle to other contracts. Obviously, on theanalogy of the two other cases this would not be a sale; but the peculiarityis that the statute, namely, Section 2(xiii) of the Prevention of FoodAdulteration Act has expressly enacted—

"2(xiii). "sale" with its grammatical variations. . . .means thesale of any article of food for human consumption oruse, or for analysis " (underlining mine).

This is why the Court while holding in the other cases that the compelledsale in accordance with permit or allotment by the statutory authority isreally no sale for the purpose of sales-tax, has still held that compelled-sale of food-stuff to the Food Inspector for analysis is a sale for the pur-pose of the Prevention of Food Adulteration Act. But it cannot beargued from this that the "sale" of the molasses by the Jaora Susar Millsto the Ratlam Alcohol Plant is a sale under the Contract or the Sale ofGoods Acts and is therefore a contract, and disqualifies the candidates.In my opinion therefore, there was no disqualification on account of the deli-very by the Jaora Sugar Mills of the allotted quantity of molasses to theRatlam Alcohol Plant.

20. Heading No. 4 is regarding the improper use of the national sym-bols. The petitioner has alleged that the respondent and his agent-- hadused the national symbol, namely, the "Ashoka Chakra" in their elec-tioneering and is accordingly guilty of a corrupt practice under Section

LAXM1NARAYAN V. BANKATLAL [VOL. XXXH

123(3) of the Act. During argument, however, the petitioner has beennot very keen on pressing this ground. One need therefore make only apassing mention. The factual position is that two social parties werearranged by private individuals to enable prominent citizens of Jaora tomeet the respondent soon after he had announced his candidature. Printedinvitations were issued by the hosts, and copies of those invitations havebeen exhibited as P/14 and P/23; both of them are approximately in thesame forms though the signatories are different—Satisli C. Showala in PJ14and Jamil Ahmed Khan in P/23. They are to the effect that in a particularmohalla of the Jaora town—the Subzi Mandi—in one case, and NeemChawk in another—on the particular evening there was going to be a wel-come or reception by the cititzens to Shri 3ankatial Todi, the Congresscandidate. Accordingly the signatories who were the chairman of the re-ception committees of that particular functions were inviting the addressesto attend. In the former of them besides the "adhyaksha" there are sevenother names printed as the organizers. All this of course is perfectlyinnocent.

21. At the top of the postcard a flag is prin ed, the actual width beingless than an inch. In the middle strip which is about 1/3 inch a hazycircle is shown which resembles the Ashoka Chakra and not the spinning,wheel or charkha. The material difference is that dn the former there isa bare circle while in the latter something like a string is shown runningover it and connecting the spindle. If one omits the string and the spindleand the wooden platform which is usually shown by horizontal line, thespinning wheel which is the party symbol, becomes the Ashok Chakr;,which is the national symbol. It is admitted that such cards were isued;but the respondent has denied any responsibility. He had not organizedthe functions though he had attended them, not on receipt of the printedinvitation cards but on the oral invitation of the organizers. The organi-zers were not his agents. Looked at this way, for one thing the "nationalsymbol" printed here is not unmistakeably distinguishable from the partysymbol, but also for another, which is much more to the point, is there noevidence to the effect that the letters were isued on the dirction or with theapproval of the respondent. He was the chief guest and it is conceivablethat he was held in respect by the -organizers of the parties. But somethingmore than mere respect is necessary to make the respondent answerable forthe use of the crest or symbol in those invitations. He had not authorizedthe use. I, therefore, hold that this is no corrupt practice.

22. The fifth main heading is "improper inducement" of which five parti-iculars have been listed, the first four involving questions of fact and thefifth, an admitted fact, the legal effect of, which however, is in dispute. Itwould be convenient to deal with them at seriatim.

"(a) That the respondent tried to persuade Shri Mumtaza'ikhancandidate to withdraw from the election by appointing his sonto a post in the Jaora Sugar Mills."

Certainly if the respondent had done this he would be guilty of offeringimproper inducement or bribery which is a corrupt practice. But there isno evidence whatsoever of such an offer. This point was put to the respon-dent and denied. Oddly enough the evidence for what it is worth is toanother effect. P.W. 19 Anant Singh frho is the editor of a weeklycalled "Upgraha" and who is also the district boss of the Swatantra Partystates:

"Ratanlal Bhandari, Vice President of the District Congress Com-mittee came to me and said 'please take Rs. 2,000 for yourself;

E.L.R.] LAXM1NARAYAN V. BANKATLAL 203

1 shall get another sum paid to the Nawabzada. Please seethat he withdraws; 1 refused, Nawabzada did not withdraw."

Absurd as the story is, it may not, even if true, be an inducement forour purpose, unless the respondent had authorized Ratanlal Bhandari tomake the offer. The real point is, this is not the story in the petition. Thisis yet another of the feats of the imagination of this overzealous witnessto whom 1 shall revert in time. I would hold that the allegation of offerto appoint the Nawabzada's son in return for the father's withdrawal fromthe election has not been brought home.

23. "(b) Did the respondent by himself or by others distributefree calendars among voters so as to procure their votes?''

The position in regard to the distribution of the calendars ds broadly similarto that of the other election literature; but this has come under briberyon account of the additional allegation that unlike the handbills and pam-phlets which I shall revert to later on, these calendars were of some valueand had been distributed not merely to influence the outlook towards thecandidates, but to bribe them into voting. The story is intrinsically un-convincing because each calendar costs only about 25 n.p. and, poor asthe electors are, it is absurd to suggest that a bribe, of this size was offeredin kind in return for the vote. Quite a number of witnesses have come tostate that the respondent and his agents distributed the calendars on a largescale, the total number suggested from the petitioner's side being about20,000. The respondent and his witnesses for their part have urged thatthe calendars had been published by the Congress party and a small numberhad been purchased by him and had been given for the most part to theoffices of his business and connected establishments in Jaora and in themofussil. A few calendars had also been given to such of the shop-keepers in Jaora and also where who had agreed to put them up at theirshops. There was, according to the respondent, no calendar distributionto the electors on anything like the scale suggested by the petitioner's wit-nesses. It is, of course, a case of oral evidence against oral evidence comingon both sides from interested and partisan witnesses but the story of thepetitioner loses all its force when it is noted that we do not have anyelector who has come to assert that either1 the respondent or any of hisworkers gave him a calender, and said to him, whether directly or byimplication, that in return for the gift he should Mote for the respondent.In the absence of such evidence and also in view of the very insignificantvalue of the so called bribe I disbelieve the petitioners story that the resuon-dent made an attempt to secure the votes of some electors by bribingthem with calendars each of the value of about 25 n.p.

24. The allegation of bribery listed as (e) is to the following effect.:

"The Chief Minister of that time, namely, Shri D. P. Mishra, wh&was the leader of the party which had put up the responden*addressed a public meeting at Jaora on 10-1-1967. In thtcourse of the meeting he stated that the land revenue had b<;enremitted in certain cases."

The factual position is substantially the same as alleged by the petitioner.He seems to imply that on 10-1-1967 Chief Minister D.P. Mishra made

. an offer that the land revenue would be remitted, but what had actuallyhappened was that certain remission had already been given in December

2O4 LAXMINARAYAN V. BANKATLAL LVOL. XXXIX

1966 by an ordinance. The effect of the ordinance was that holdings ofa particular area and below would become tax-free. Also the agriculturalholdings whatever their area, which bore a land revenue of Rs. 5.00 and lesswould also in future become tax-free. It is convenient to suppose that theremission was to take effect from the next land-tax-year, possibly inApril to June of 1967. All that the then Chief Ministsr possibly had donewas to announce in the meetings what his Government had already done forthe poorer section of the cultivators. This may or may not be calculatedto have an effect on the election; but it comes under the exception containedin the proviso to Section 123 (2)—

Provided that—(b) a declaration of public 'policy or a promise of public action, or

the mere exercise of a legal right without intent to interfere withan electoral right, shall not be deemed to be interference withiathe meaning of this clause."

I would, therefore, hold that this was no corrupt practice.

25. Under heading (c) comes the allegation that on 17-2-1967 atJaora the respondent gave a dinner to the electors for the purpose ofinducing them to cast their votes in his favour. This "dinner at Jaora"has been used by the petitioner as a two-edged sword. One aspect of itis that this as well as the procession on the same date to which, the dinneritself was a preliminary had involved the respondent in very considerableexpenses, which have not been shown in his return; accordingly it is evi-dence of his having spent more than the sums prescribed under Section 77of the Act. This aspect of the allegation I shall take up for considerationwhile examining the allegations of excessive and unreturned expenditureunder heading 9. Apart from it, it is said in this connection that theelectors had been brought from outside for the purpose of taking part in theprocession; before the procession started they were fed on very large scaleat the starting point, namely, the orchard or the well of Fathelal Jain whichis a landmark just outside the town of Jaora. The petitionerhas examined quite a large number of witnesses on this allega-tion some of whom are residents of villages ranging in distancefrom 1 to 2 miles up to 12 miles from Jaora. All of them state thatthey saw their fellow villagers being invited and taken in trucks to jointhe procession. They themselves, however, state that they went to Joaraseparately on bicycle or state-carriage buses on their own work which theycombined with {he witnessing of the procession. The procession proper v,il!come again for consideration under heading 9 "expenses; but these witnessesassert that they saw the crowd in Fathelal Jain's orchard about 7,000 strongbeing fed, their estimate of the cost of the feed being Rs. 1.00 per head,that is, a total of Rs. 7,000.00.

26. On this story we have evidence on both sides, the witnesses of thepetitioner asserting that these 7.000 were fed there and the witnesses of therespondent including Fathelal Jain, who was one of the organizers of theprocession, and the respondent himself equally definite that there was nofeeding.

27. The common ground in this connection is that both the parties, thatis, the Jan Sangh which had put up the petitioner as its candidate and theCongress which had put up the respondent as its, were keen on having theprocesion on the 17th. They were not prepared to accept the District

E.L.R.J LAXMiNARAYAN V. BANKATLAi- 20y

Officer's suggestion that they should toss for the date because both partiesfelt that the 17th was the last practicable date. The votes were to be polledon the 20th and processions and similar demonstrations cauld obviouslynot be held after a particular hour on the 18th evening. For that reasonthe 18th or the 19th were out of question. Conceivably they could havehad the processions on some earlier dates; but they did not, either becausethey wanted to have it nearest possible in time to the actual polling orthey had been putting it off. Ultimately the parties had agreed to tossas to which procession should go first; it turned out that the Jan Sangh wonit and accordingly had its procession mostly by day-light and finishedsomewhere about 6 or 7 P.M. The Congress sympathisers were ready ingarden near the well of Fathelal Jain hi time to take their procession at theformal starting point near the Nawab's place in the town. It was whenthe procession was collecting, that is, sometime in the afternoon, say at about4-0 or 5-0 P.M. that according to the petitioner the feeding took place.The general lay-out of both the processions were alike and the nature ofthe participants and of the display is common ground. The basic differencebetween the parties is that the petitioner's witness assert that the Congressprocession was on a very large scale with 10,000 members participatingand the number of trucks, cattle pairs, camels, lighting arrangements andthe like in proportion. The respondent's witnesses, on the other hand, triedto make two points first that the procession was being arranged not by hisagents who did their independent electioneering, but the Congress party.Me had paid a token contribution and the party had spent on the procession.Its size was not anything like 10,000, but about a fourth or fifth, that is,about 2,000' to 3,000. Naturally the number of trucks and other vehicleswas according to the respondent's witnesses proportionately low.

28. The oral evidence as usual in such cases comes from partisans onboth sides; but there is one serious and for our purposes fatal short-comingin the evidence of the petitioner. The atmosphere was tense thoughas things turned out, both the processions passed away smoothly withoutany incident, thanks to the good sense of the organizers on both sides, andthe obvious anxiety of the local candidates—the petitioner and the respon-dent on the respective sides—not to get a bad name. All the same, from thatmorning onwards the officers, not only those usually stationed at Jaora butalso the district officers from Ratlam—were anxious that things should passwithout anything untoward. Whether the crowd was of 2,000 or of alarger number, it is certain that at the collecting 'point, namely, FathelalJain's orchard there were quite a number of police officers including not onlyordinary constables but also some Inspectors, and very likely, those of ahigher status, like the Superintendent of Police or even Magistrates. It isnot disputed that in Fathlal Jain's orchard where the crowd was collectingthere were quite a number of public servants. It is surprising that not asingle one out of them has been examined by the petitioner. If indeedthere was feeding of the processionists, especially if anything like the numbersuggested had been fed, the noise and commotion would have been suchas not to be missed by anybody there, least of all by the public servants.Again, the leavings after a feed of a few thousands would be unmistakablestill we do not have any public servant, whether a policeman or a Magis-trate or any servant of the municipality coming to depose on this subject.Even the petitioner is not prepared to pledge his oath on this point. Hehas no personal knowledge and states that he heard from some of his menthat a huge crowd was being fed in that orchard. It is surprising that he

2 0 6 LAXMINARAYAN V. BANKAtLAL tvOL. XXXII

did not go while it was in progress because it was expected that he wouldsatisfy himself first—hand and what on the face of it was somethingquite unusal and possibly a corrupt practice. Even if he hadgone there aiter the event the signs would be unmistakable and it wasexpected whether he sees the feeding in progress or sees the result afterwardshe would bring it to the notice of the authorities. Thus, looked at anyway, the story of this mass feeding of the voters by the respondent seemsto be fictitious.

29. There are two other incidents alleged in (d) by the petitioner am-ounting to bribery or undue influence, one is that in village—Dhamotarathe respondent acceded to the request of the residents that their templewhich was in a turbled down condition would be repaired by the respon-dent at his cost and secondly, in another village Somailchedi he had promi-sed to construct a school building.

30. On this, as on the other topics, there is oral evidence from the sideof the petitioner and denial by the respondent. The witnesses on the sideof the petitioner make out that when the residents of the respective villagestold the respondent he assured them that he would get the temple and theschool building completed at his cost which might be about 2500.00 ineach case. The respondent denies it. To be sure, he had been to thesevillages as indeed according to him, he had tried to be once at least inevery village of the constituency. In most villages he had found the resi-dents in need of this or that public building or amenity and was quite oftenasked whether he could do anything in that connection. According tohim, he was in principle against making any commitment in such matters;because for one thing, it would involve huge amounts, and for another, itbeing election time, any such promise would become a corrupt practice.On the other hand, he could not rudely push aside the request of the vill-agers because that would be to lose their sympathy. Accordingly he had astereotype answer for all such requests, namely, that it being the electiontime, he was not in position to make any promise. Oral evidence againstoral evidence, the respondent's account of the happenings impresses me asmore convincing. No doubt, the villagers do on all such occasions try topin down the candidate whether of this or that political party to promising todo something for their village. This of course, is a very common happen*ing. The candidates too try to avoid committing themselves without at thesame time hurting the feelings of the villagers! this is precisely what therespondent claims to have done on all such occasions including the twospecially mentioned.

31. On behalf of the petitioner it is urged that even a statement likethis would have undertones implying a promise as if the candidate states,"no doubt this is the election time and you cannot expect me to make aformal promise. However (and this is by implication) I would get thingsdone for you if you elect me". As with, all the speeches referred to inthis case the speech or the conversation concerned has not been immediatelyrecorded either by the candidate or by the listeners; but the witnesses whospeak of the promises are definite that after the election, when they foundthat Bankatlal Todi had been returned, they did not go to him to remindhim of the promise. In other words, whatever the language used by theresoondent. the listeners did not understand it to be a promise. Accord-ingly I hold that there was no inducement in this connection either.

32. Under the heading "Distribution of Literature with aHceationv.against conduct" have been grouped certain passages in handbills and pamph-

E.L.R.J LAXM1NARAVAN V. BANKATLAL 2O7

lets which were certainly distributed during the election but in regard towhich the respondent disclaims all responsibUity as they had been printedand distributed through the Congress party agents or private individualswhile he had his own separate machinery for working in the election. Thepetitioner, however, has alleged that these handbills had been distributedby the respondent himself, or his registered election agent Nandlal Joshiand others like Jhamakwal, Kherawal Laxminiwas, Omprakash Sood, whowere admittedly his workers. Apart from the question whether or not thepassages referred to which will be set out presently, do constitute factualallegations against the conduct and character of the petitioner, the ques-tion of distribution is of great importance.

33. The factual position in regard to three of the leaflets is simple.The first of them is Ex. P/2 a handbill entitled "Gundagirdi kuchal denge"with the picture of Indira Gandhi—the Prime Minister—showing a bandageun the nose. (Though this has not been specifically set out in theissues, the parties have argued at some length about it, treating it as typicalof the litrature which had been brought out by the Congress party that hassponsored the respondent's candidature, whether or not he and his agents hadthemselves distributed it.) The next is a leaflet issued by the Nawab ofJaora entitled "Ajij doston", actually in two versions of the same purportone in Hindi and the other in Urdu (Exs. P/3 and P 3A). The thirdis a pamphlet entitled "Phir vote mange" (Ex. P/4) which is ostensiblypublished not by the Congress party or the candidate but by the "electors"of that constituency—('mat-data-gan'). Similar to these but involving theallegation of appeal to religion is an issue of the 'Indore Samachar' date20-2-1967. It may be mentioned even here that besides these handbillsquite a number of other leaflets are alleged to have been distributed eitherby or on behalf of the respondent. They may, however, be disposed ofwith bare mention as it is not seriously alleged that there is anything inthem that would attract any of the provisions of Section 123. For exam-ple there are handbills of the type "Nomoro. Niveden' under the signatureof the respondent himself, and a'ppeals in two versions on behalf of the,respondent sent out by Dr. K. N. Katju, once Chief Minister of MadhyaPradesh and a wellknown politician and lawyer. There are also leaflets bythe friends of the respondent extolling his good qualities; we are not con-cerned with any of them.

34. The petitioner's allegation ds that these three leaflets contain allega-tions of fact against his personal character. The answer of the latter is thatfor one, he had nothing to do with their distribution; for another, they areeven in the passages to which objections have been taken, were electionrhetoric and not factual allegations. In any view 01 the matter it is urgedon behalf of the respondent, he and his own agents are not answerable evenif they contained objectionable features.

35. Ex. P/2 sets out a factual account of an incident at Bhuvaneswarin Orissa where durin<* a meetino which was to be addressed bv the PrimeMinister stones were thrown and she was iniured on the nose. The writerof this pamphlet attributes this act to the Jan Saneha, and describes it as acase of 'gundaftirdi", It also cautions the electorate of Jaora as well as ofother places, of the activities of the Jan Sangfia, and appeals to the youngpeople of that locality to resist—

"*.... the activities of the communal and bloody-minded-'khooni'-fascist organization called Jan Sangh and to uproot its row-dysm and lawlessness."

LAXMINARAYAN v. BANKATLAL [VOL. XXXIt

It is signed by the "Mandal Congress Committee, Jaora". Certainly, por-tions of this leaflet are not in dignified language; but it is difficult to findany allegation of fact relatable to the personal conduct or character of thepetitioner. It is certainly tirade against his party based on the assumptionthat it was responsible for the happenings at Bhuvaneswar and mightconceivably enact similar dramas at Jaora and other places mentionedin the leaflet:

36. This particular leaflet and similar ones brought out by the Congressparty at any level—whether State, District or Mandal, would raise twoquestions; firstly, if at all material like this would amount to factual allega-tions about personal conduct and character of the opposing candidatewhich the respondent knew or had reason to know to be false; secondly,one about the circumstances in which a candidate would become liable foraction taken by the political party which prompts his candidature.

37. On the first question, I would hold that the allegations are generaland have no reference to any particular member of the Jan Sangha. Broad-ly speaking, the incident at Bhuvaneswar has been described correctly;but there may be a difference of opinion as to the attribution of such violenceto this or that political party. Since at that place the most effective oppo-nent to the Congress party was the Jan Sangha, the writer of this pamphletand presumably most, if not all, the leading members of the Congress partymade up thier minds that this was done by the Jan Sangha. Accoringly .they started cautioning the electorate against similar incidents or demon-strations by the same Jan Sangh party in other parts of the country as well.I may not be understood to suggest that this way of doing things was eitherethical or that the Congress had sufficient data to put the responsibility forthe Bhuvaneswar incident at the door of the Jan Sangha; but what we areconcerned with is the question whether anything false and knowingly falseis attributed to the candidate opposing the respondent who had been putup by the Congress. To this last question there can only be a negative ans-wer. There is nothing about any candidate in particular, but there is ageneral condemnation of the policy of the Jan Sangha. Looked at thatway this should be treated as one of "the very common though unfortunateelection-time effusions by political parties which does not come under any cfthe headings in Section 123.

38. In view of my opinion noted above, the problem of the generalresponsibility of a candidate for the doings of his party during the election isnot of much practical consequence in this regard. However, it has a signi-ficance in respect of various other steps taken by the Congress party in thiselection which the petitioner wants to attribute to the candidate himself asif it is an invariable principle that the organization of the party which prom-pts a candidate is his agents let us say: "an agent other than the electionagents." This question has come up more than once before the Courts andimportance has been emphasized bv the Supreme Court itself in the judg-ment reported in Bhagwan Datt Shastri v. Ram Ratan Gupta; BhagwanDatt Shastri v. Badri Narayan Singh, II ELR 448:

"The question as to the limits of the doctrine of agency in electionmatters and the exact scope and effect of the statutory defini-tion of "agent" may require to be carefully considered bv thecourt when they become necessary in a proper case as theseare important questions bearing on the whole structure of elec-tions run on party lines."

E.L.R.] LAXMINARAYAN V. BANKATLAL 20C»i

With reference to the facts of that case the Supreme Court has held:"Where the respondent was a candidate set up by the Socialist party

for the House of the People and it was found that a car belong-ing to the Socialist candidate for the State Assembly for thesame constituency had t>een used for conveying voters to thepolling station for the House of the People and it was also foundthat the respondent had contributed funds for the expenses ofthe Socialist party and had not employed any workers of hisown, and the Tribunal held on these facts and the circumstancesof the case that the conveying of voters must have been donewith the connivance of the respondent and that he was guiityof a corrupt practice under Section 123 (6)^—"(Underlining mine):—

"Held, that there was ample evidence to support the finding of theTribunal and there was no graund for setting aside that find-ing on appeal:"

39. The decisive point in that case was that the respondent did not havehis own agency but had entrusted the electioneering entirely to the party andwas putting it in funds for that specific purpose. In the instant case, onthe other hand, the position is that there were two agencies working moreor less independently in the same field. There was the Congress partyagency under the direction of the State level; but the day-to-day work beingentrusted to what has been called the Mandal Congress Committees whichseems to be the Congress organizations within small units—there being sixor seven in this assembly constituency alone. They printed their own lit-erature and had their own propaganda workers. They no doubt workedfor the respondent also for the very simple reason he was that party's candi-date; but their outlook was wider, namely, for the party's success all overthe country, and even in this locality both in the Assembly Constituency andin the Parliamentary Constituency of which this Assembly Constituencywas a parti The respondent on his side had his own organization consist-ing for the most part of his servants and agents in the different commer-cial ventures which have been described in the beginning; the largest ofIhei,' of course was the Jaora Sugar Mill which had teams of employeesboth at the factory at Jaora proper and at the five or six cane collectingcentres and weight-bridges out in the moffusil. The total number of theemployee^ was quite large; but the respondent states that he put nopressure and it left it to their free choice whether to work in the. election;n all and if they chose to, whether to work on behalf of their employer orthe opposing candidate, namely, the petitioner. That this statement iscorrect is borne out by the faofl that a number of these employees ad-mittedly d'.d work for the petitioner, one of them being his election agenthimself'(P.W. 48) who testifies to this.

40. Till about the 20th January, the employees who did work were go-ing out in their off-time; but after a particular date nearabout the 20thJ-nuary they took leave and began to devote themselves full-time. Certain-ly aH of them had leave to their credit and their taking leave did not in theleast affect the working of the mill for the very simple reason that the colle-cting and crushing of cane had come to a halt for sheer want of raw mate-rial. What the respondent states in this respect impresses me as true be-cause It was the same pattern adopted by such of his employees as startedworking toi the petitioner also. In addition to this there were the servantsin some of the smaller concerns Mice the ginneries out in the countryside.

2 1 0 LAXMINARAYAN V. BANKATLAL LVOL. XXXil

iiitfy also worked for the respondent as his private agency. A few of hisfriends like Fatehlai (R.W. 13) and some other businessmen of Jaora likekamial Modi (R.W. 14) worked for him as voluntary helpers. His ownelection agent, however,—Nandlal Joshi (R.W. 11) had come as one of tkefunctionaries of the Congress party and had stayed on becoming his agent.His original assignment was to work at Jaora bringing a reconciliation bet-ween the two factions in the Congress camp there and generally to promotethe interest of that party. That done, he went to the respondent's personalagency as his election agent leaving the party's own work in charge of thelocal office-holders. This also impresses one as true because this is exac-tly what an outsider to the locality like Nandlal Joshi would do especiallyas he had been sent not to supersede the local party agency, but to make itfunction more harmoniously. In the countryside also there were five orsix separate Mandal Congress units each with its own functionaries movingabout on party work in those small Mandal areas. The respondent's agencyprinted its own literature; but it also bought some literature from the Cong-ress party for which it has paid the expenses being returned in the usualstatement. Thus I would not hold in a set up like this that the candidate isipso facto liable for the doings of the party machinery, just as if it is hisagent. He would still be liable for certain acts of the party; but for thatpurpose there should be a definite indication of his having connived atthose acts. Unlike the position reported in the Supreme Court case (supra)the two agencies had been separate. Looked at that way the candidate can-not be held guilty of any corrupt 'practice even if any literature by the partyprinted and disributed without his direct connivance offends against anyof the provisions in section 123. As it is, there has been no offenceon the facts either. '

41. Coming to the pamphlet "Ajij doston" both in the Hindi and inthe Urdoo versions, there is nothing that can be attributed to the respondent.It has been brought out under the signatuTe of the Nawab of Jaorawho has been acting on his own. On the whole, the intention of theNawab as shown in this handbill is that his friends should votefor the respondent. He has not threatened or improperly coerced any-body but has only appealed to what he considers to be their good sense andthe merits of the case. He does say one or two things about his own bro-ther—the Swatantra party candidate; but the respondent has nothing todo with them.

42. This leave the leaflet entitled "Phir vote mango". This was nodoubt distributed by somebody in the constituency just before the electionbut the assertion that the respondent's agents did the distribution is notconvincing. No doubt some witnesses have stated so; but they are partisansbeing in one way or another connected with the Jan Sangha. The leaflet setsout 13 allegations most of which are general and amount to nothing morethan that Shri Pande who had won the election in 1962 by making manypromises had not implemented them; but this is what happens in every elec-tion. Particular attention has been drawn to some of them; for example,No. 7 is to the effect that—

"black-marketeers taking advantage of the shelter afforded byPande had been selling daily necessities at higher price(sawai dyodhe damapar) ".

E.L.R.] LAXMINARAYAN V. BANKATLAi. 211

Heading No. 8 charges Pande with taking no action against traders who selladulterated goods; it is difficult to see what Shri Pande or any other privateindividual was expected to do when there was the Government's or thelocal authority s own agency entrusted with this work. No. 11 chargesPande with setting up the false pretence of high principles actually settingup candidates on a communal basis, he pretended to presuade them to with-draw and then proclaimed how broad-minded he was. No. 13 charges himwith persuading Nawabzada Mumtazalikhan to stand as a Swatantra partycandidate just that the votes of the Muslim community could be drawnaway from another candidate.

43. On the whole, this pamphlet is a tame affair by the standards ofelectioneering and the nearest to a personal allegation is that he was pro-tecting certain black-marketeers and setting up candidates on a communalbasis. But the point to note is that this is virtually an anonymous pam-phlet. The subscription "Electors of Jaora" (Jaora ke Mat-date-Gan)has no definite meaning. It appears from the evidence of the petitionerthat he was not able to find out from any declaration who exactly had prin-ted this leaflet. There is a law that every printer bringing out electionliterature should return with the Collector the particulars of the person atwhose instance a particular pamphlet or book was being printed. In thiscase apparently no such return had been made. This may render the pressliable to legal action! but it is difficult to jump from this to the conclusionthat the respondent had a hand in this. As far the distribution there is nodoubt the assertion of certain witnesses on the one side that the respondent'sworkers were seen actually distributing this leaflet and a denial from the sideof the respondent himelf. But the quality of the evidence on the sideof the petitioner in this regard does not justify our accepting the story.These witnesses are partisans. Somebody who had chosen to stay in thebackground had brought out and distributed this leaflet with general allega-tions and at least two that are specific against the character and conductof the petitioner; but we cannot put it against the respondent as there is nosatisfactory proof of his hand in the printing or the distribution.

44. This takes us to the next heading of "Appeal to Religion". Thereare four different instances sought to be made out by the petitioner, one ofwhich [issue 7-(c)] is distinct from the three others whichrelate to the cow and the, cow-progeny ("go aur go-vansha"); theseform an important topic and will be taken up separately. This sub-head-ing (c), however has nothing to do with the cow, but relates to a letter orappeal published in the Indore Samachar of the 20th February 1967 ostcensi-bly from Swami Satyamitranandgiri "the' Jagat-guru Shankarcharya ofBhanpura Peefh." in the Mandsaur District. This religious establish-ment is presumably a subsidiary to one or other of the five major establish-ments. It is sufficient for IDUI purpose to note that this Swamiji has somereligious following in that locality. On the one hand, he is ostensible authorof a large and glaring poster in support of the Jan Sangha—a copy ofwhich is exhibited in this case as R/7. It is a vigorous appeal for "cow-protection" goraksha as a part of the Hindu culture (Hindu sanskriti)which was the main election plank of that party. On the other hand, itis also in evidence that after the respondent had widely given out his candi-dature of the Congress party the Swamiji was kind enough to visit him atMs house it is supposed, to give his blessings to him and his family onpurely religious matters and then made this appeal through the IndoreSamachar.

2 1 2 i.AXMINAXAYAN V. BANKATI.AL I.VOL. XXXU

^45. Be that as it may, this newspaper—a daily published in indore cityand circulating in the State including the Jaora area,—brought out whatcan be called the "Congress Election Number" on the 20th February 1967.As a matter oi detail i am inclined to feel that for propaganda eifcct iatile western districts of Katlani and Mandsaur its timing was somethingmisfire, because the evidence shows that it could have reachedRatlam early in the morning, and Jaora itself two or three hours later bywhich time the polling would be in full swing. Anyway, this numberincluded material for the promotion of the Congress cause. It containsan account of the Bhuvaneswar affair in exactly the same language andformat as Ex. P/2 already discussed. It has brought out copies of thsphotograph of the different Congress candidates including the respondentand apropos of his candidature mentioned that—

"Shri Pande having won the election of 1962 against no less a per-son than Dr. K. N. Katju was now walking in pride (akarte-ham) and squeezes kisans and oppresses them as if he was aHitler."

This of course is no fault of the respondent; but shows that at all events onthat occasion the Indore Samachar was an enthusiastic supporter of theCongress. Alongwith similar material there was an appeal which theedi:or elsewhere described as an "order" (adnya) of the Bhanpura Slian-karacharya. The message or appeal is in the following terms:

"Vote for Congress: It is the institution of which Gandhiji had beenleader and through which he got us freedom. It is the sameinstitution which in the time of Shastriji has made India avictor. So vote for that Congress."

The word "adnya" has not been used by the Swamiji but by the editor byway of comment.

46. The petitioner's case in this regard is two-fold. Firstly, that theSwamiji who had throughout been a staunch supporter of the Jan Sanghadid not and could not possibly have given this message to the IndoreSamachar. For another, whatever the source of this message its beinglinked with the Swamiji's name and being described as the "adnya" or com-mand is an appeal to religion. On the first contention thepetitioner has led evidence except what would directly clinchthe issue. If the Swamiji did not give such a message it is for him or oneof his secretaries or assistants dealing with such correspondence to comeand tell us that no such message had issued from his office. It shouldnot have been difficult to examine either the Swamiji whose establishmentis in this State and within about 200 miles. In an extreme case he couldhave taken out a commission. If the Swamiji is too august a person togive evidence whether in person or on commission the secretary who dealswith such matters could have been called and examined. This too has rotbeen done. What has been done is something very round about andunconvincing. There is another, daily called "Swadesh" which is r>"kobrought out at Indore and which is the paper of the Jan Sangha. On the24th February it brought out a news-item that the Indore Samachar hadfalsely attributed the message to this Swamiji with the sole purpose of"murdering the Jan Sangria" (Jan Sangha ki batya hetu Aclirya ke nam k-.\Sahara). The editor of that paper has come as a witness (P.W. 14) andhas produced a carbon copy of Hindi letter ostensibly sent by the Swamiji'himself to the Indore Samachar. The idea seems to be that the Swamiji,

E.L.R.J LAXMINARAYAN V. BANKATXAL 213

anticipating that the Indore Samachar might play the trick of not publishing.his contradiction, took care to send a carbon copy to the Swadesh. Thecrucial point is whether this letter has at all been written by the Swamijiand if it has been, whether it should be believed. The editor _of the "Swa-desh" himself does not know the Swamiji's handwriting in due course of'business but claims this:

"About two months before the election the Swamiji came to our officeand signed good wishes"—(good wishes message)—" in mypresence- I may not have preserved it. On other occasionsalso I have seen letters signed by him."

'He does not state what "the other occasions" were nox does he pro-duce the "good wishes" signed by the Swamiji. To sa'y the least, it is notthe proper way of proving the letter sought to be exhibited as P/7. Thisleaves the main question whether or not the Swamiji had sent themessage to the Indore Samachar quite undecided. Certainly, thereis a contradiction between the Swamiji's on the one band signing thestrongly worded poster in support of the Jan Sangha and on the otherappealing to the voters to back the Congress party. Kut such conduct isby no means unknown. There are persons who would like to be on thesafe side with each of the parties that have the chance to win the election.

47. Coming to the second aspect of the plaintiff's contention it isdifficult to see where liie appeal to religion comes in at all. The wording•of the message which I have quoted in full does not have the least of thereligious tinge; quite on the contrary the tone is secular:

"The Congress party under GandhijYs leadership has got us swarajand the same party under Shastri's leadership has got us amilitary victory."

"Nothing can be farther away from a religious appeal. The mere fact thatthe person who appeals happens to be a person holding a religious posi-tion does not make the appeal one to religion unless the latter itself hasa religious colouring, or there is an element of threat or persuasion ofsuperhuman or divine displeasure or reward. A typical religious appealis one that came up before the Supreme Court in the case reported inRam Dial v. Sant Lai, 20 ELR 482. There the appeal was made by theSat Guru of the Namdharis who issued a circular to his followers:

"A command (Hukam) from Shri Sat Guru Sacha Padshah to theNamdharis of Halqa Sirsa—Every Namdhari of this Halqa iscommanded by.Shri Sat Guru that he should make everyeffort for the success of Shri Ram Dayal Vaid, a candidatefor the Punjab Vidhan Sabha, by giving his own vote andthose of his friends and acquaintances "

In the instant case it is a general appeal by the Swamiji to the public atlarge and not merely to his disciples or religious followers. Again it isnot a command or hukam though the Indore Samachar editor thought itwas. Then there is no religious bond or influence which is being exploited.This therefore disposes of the allegation in heading 7(c) .

48. The three other items under this heading more directly involve the""cow-protection" and "cow-worship" which has been enlarged into the

2 1 4 LAXMINARAYAN V. BANKATLAt, [VOL. XXXTfc

protection and worship of "go-vansha" or cow-progeny also. Two ofthem—(a) and (b)—are supposed* to relate to speeches made in his pre-sence by the respondent's workers at certain places and the third thedistribution of the copy of a letter addressed to D. P. Mishra—the thenChief Minister—by the Secretary of an organization at Delhi called"Sarvadaliya Goraksha Mahabhiyan Samiti".

49. Before taking these three headings for consideration it has to benoted that the question of the protection or worship of the cows and theirprogeny has been very much in the forefront during this election. In fact,the cow-problem seems to have, especially the mind of the candidates ofthe Jan Sangha, completely eclipsed other serious and urgent problems likedefence, food industrial production and law and order. It is not veryeasy to divide the different schools of thought into water-tight compart-ments. However, as this record shows two different lines and the begin-nings of a third are clearly ascertainable. The first is based upon therather old-fashioned doctrine that men are superior to cattle and there-fore they should be citizens and the cattle their property. It wouldfollow therefore that old cows, bullocks and bulls should be dealt withjust as their owners choose, subject of course to existent laws regardingnuisance, cattle-trespass, sanitation and cruelty. An owner may, ifhe wants, bring up these old and useless animals as his domestic pets athis own cost, or get them killed with the minimum cruelty and with dueprivacy. The second school of thought seems to be that cattle shouldhave equal rights with human citizens and should not in any event bekilled even when they become useless or disease^ and should be allowedto die out of age or disease which may be infectious, or slow starvationrelieved by bouts of crop-raiding. In fact the posters displayed by one ofthe parties would suggest that there is even a third school of thought,namely, that the cattle should be the rulers and the real citizens while thehuman beings should be the ministrants to their comforts; the doctrine of"go and go-vansha raksha" which is the basis of the second line nowbecoming "go-pooja" or cow-worship. It is certainly open for any partyto canvass for one or other of these schools as long as there is no religiouselement or threat of divine displeasure introduced. Broadly speaking theCongress party's line seems to be something like what is described as thefirst school, though conceivably it would support a system of certificateof uselessness given by the veterinary authorities before an animal is gotrid off. The Jan Sangha 'position as .given in the literature and the peti-tioner's own evidence is what I have described as the second school ofthought; he does not go so far as the third. Strangely enough, in this caseit is the Jan Sangha candidate—the petitioner who charges the respondent—the Congress candidate—with exploiting the traditional Hindu religiousrespect for the cow as if in this election the party positions have been re-versed.

50. Two of the Congress candidate's workers, namely, JhamaklalKharewala and Laxminiwas are alleged to have in two different meetings—the first on 5th February, 1967 at Barela Chorasi and the second on 13thFebruary, 1967 at Mamatheda delivered speeches substantially to thesame effect:

"This Pandeji gets cows killed and is a-friend of cow-killers. Heis a sinner and it would accordingly be a great sin to vote:for him."

E.L.R.J LAXMINARAYAN V. BANKATLAL 215

Such a speech if delivered at all is undoubtedly an appeal to religion. Butthe petitioner's evidence in this regard is very thin. In this case none ofthe . -cged speeches or the denials can be verified with reference either tothe speaker's notes or to the listener's record made, as the case may be,shon.^ before or after their delivery. The practice has not been for thoseconcerned to keep notes of this kind. The petitioner's witnesses—two ineach case, seriously assert that at the respective places these workers deli-vered these speeches. The respondent and th e workers themselves giveanother story. The respondent's account is that his system of work didnot provide any occasion at all for the workers to deliver speeches whenbe was there. He believed in personal contacts though from time to timewhen small crowds collected he delivered short speeches. But in his pre-sence it was unnecessary for his workers to speak and any way, he neverallowed it. The workers would talk personally to small batches of eiec-tors and there was the end of the matter.

51. Thus both the batches of witnesses are partisans. This is clearenough; but one of the witnesses to the alleged Laxminiwas' speech claimsto hcvi; Dceii tne adhyaksha or president of the meeting. No doubt, as therespondent himself states in some of the meetings who addressed somevillager was called as a president though no records or minutes were kept;but 1 am not prepared to accept this witness's (P.W. 15 Khemraj) impar-tiality. He himself states:—

''Pandeji came to my village. He also held a sabha . Onbehalf of the village I handed over to him a purse. Therewere Rs. 25/- in this."

It is difficult to picture a person who helps in giving a purse to one candi-date being an impartial president over a meeting addressed by another.

S .. As in other matters we have in regard to these speeches also oralevide ice pitted against oral evidence. But there are some importantckcu .'stances which make it altogether impossible that these speecheswere nade by any of the men of Bankatlal. One point to note is thatit Wf> not any part of the Congress party's or the candidate's plank towork for cow-protection, or cow-worship; quite on the contrary it was theJan tongha that had proclaimed this as the main plank in its electioneer-ing while the Congress was on the defensive. Again, at least in enc ofthe t*"o meetings at which this kind of speech is alleged to have beenmade Gafoor Beg—the president of one of the Mandal Congress Committeesof Jaora, was present along with the respondent and bis men. The personfor whom Pande is supposed to, have got the cow-killing licence is aMusi' a butcher. It h unthinkable that a speech condemning Pande sgetir'z a licence for a Muslim butcher would have been made when anotherMusVm of the same town was present as one of the supporters of thesame ~nndidate. In fact Nandlal Joshi himself has pointed cut there wassome difficulty in reconciling the group led by Gafoor Beg and he badcome all the way to do this. For these reasons, I am not prepared tobelieve the story that the two supporters of the respondent had* deliveredsuch speeches.

53. rJlie next iiem of religious appeal is the alleged distribution Ov theworkers of she respondent of copies of letters Exs. P/16 and P/17. Theyare both tha -same but while the former is a litho-copy, the latter is a

1 E.C.—15

2l6 LAXMINARAYAN V. BANKATLAL IVQL. XXXII

printed one—both being published by the Madhya Pradesh Congress PartyBhopal in its election directorate. In this letter one V. P. Sharma—someoffice-holder in the All Party Cow-Protection Movement Committee (Sarva-daliya Go-raksha Maliabhiyan Samiti) congratulates D. P. Mishra—thtDChief Minister of Madhya Pradesh—

"Respected Mishraji,

I was very pleased to rind from the newspapers thatsteps have been taken for banning the killing of old bullocksand bulls by the promulgation of an ordinance. Your fearlessmeasure in regard to the absolute banning of the killing of theentire cow-progeny will encourage our movement and per-suade the other States to follow in our footsteps. My heartycongratulations on your meritorious and good deed—(punyaaur satkarya)—and 1 pray to God that Madhya Pradesh willtake more similar steps fearlessly uader yQuj; great leader-ship "

What seems to have happened is that the writer of this letter had madeup his mind—probably on incorrect information—that the Madhya Pra-desh Government had passed an ordinance banning the slaughter of allkinds of cattle. Possibly there was proposal to that effect; but it is statedat the bar that no such ordinance had been promulgated. -Anyway, find-ing that the Jan Sangha was carrying on a raging campaign for< the abso-lute protection or worship of the cow and the cow-progeny and stylingthe Congress leaders as the "dalals" for cow-slaughter, the Congress partythought on its own side to publicize this certificate given to its Chief Minis-ter by no less a personage than the Secretary of the Mahabhiyan Samiti.There is no appeal in this letter; nobody is asked to vote Congress. Thatparty is on the defence.

54. Apart from this there is the problem of agency. In the contextof this election, as already made out, the Congress party cannot be deemedto be the agent of the respondent. Thus I would find that there has beenno appeal to religion or threat of divine displeasure by the respondent orhis agents whether by working on the cow-protection doctrine or on anyother principle.

55. The next heading for our consideration is that mynbjered 8 on theallegation that the respondent had provided conveyance fof his voters 15come to the polling booths. No doubt, a number of witnesses—practi-cally all of whom are connected either with the Jan Sangha or with thecandidature of the petitioner—have asserted that they saw the tongas orthe trucks belonging to or hired by the respondent bringing voters to thepolling booths. This is, of course, denied by the respondent and hisworkers who are certainly just as interested as the witnesses. Actually inregard to the tonga, a particular tongawala—Pyarekhan—has been named.But for reasons that are not clear he was not even called as a witness. Thetrucks that are supposed to have carried voters to the polling stations wouldsurely have been unmistakable. At every polling station just at the ent-rance hire would be a police officer—at all events a constable, and maybe, officers of the status of home-guards and the like. Nothing shouldhave been easier for the persons interested in proving this than to drawthe attention of these officers to what was going on- It could have beenequally easy to draw the attention of the polling officer himself who could

aj.L.lU LAXMINARAYAN V. BANKATLAL 2I?

see even from his seat that trucks had come. Doing this would not neces-sarily prove the allegation, but would at least show that this was in the mind-of the witnesses at the proper time. But that has not been done in the ins-tant case. What can be called nearest to this is the statement of P.W. 44:Bhuralal who has produced Ex. P/15 carbon copy of what is supposed tobe a petition handed over to the polling officer at Mavta making this allega-tion. But that is no evidence unless the polling officer himself or a mem-4>er of his office staff comes and deposes that such a petition had been Iiandedin. Otherwise we have bare assertions from partisan witnesses which cannot be verned. Accordingly I am not prepared to believe the allegation•that conveyances had been provided.

56- Expenses.—The, next heading of allegations is in regard to expenses.The. petitioner has set much store by these. Stated briefly, the petitioner'sstory is that'tJje,r^Kipd^|,fta4 .^n^spme^ingjike 48000.00 rupees, onthe election wnile tie ptescribea limit is 7000.00 and he himself has returneda total of 5800.00,—well below that limit. The petitioner alleges thaton motor vehicles alone the respondent has spent 20,000.00 using avery large number of trucks, jeeps, cars and the like while the respondent'himself asserts that he used only two jeeps. Further, the petitioner allegesthat.the respondent has spent 10,000.00 on feeding his workers and theelectors in general while the respondent has returned nothing on that account.©a tibet .procession, P|H17:-2-19J67 the, petitioner .alleges the respondent spent15,00.00 while according to the latter the whole thing was done by theCongress party,—he himself making only a token contribution of ] 00.00.On loudspeakers Uie petitioner alleges an expense of 2800.00 while therespondent returned 600.00 only. The petitioner avers that the respondentused four loudspeakers for which hire had been paid, whlie according to theJatter he had hired two and two others were not used by him but by the•Congress party organization, they having taken them from the NationalTrade Union. On election literature and.publicity material of all kinds andon the printing the petitioner attributes an expense of about 13,000.00 to15,000.00 while the respondent has returned much smaller sums. A fewitems the petitioner alleges like telegrams, trunk"calls, electricity etc., havenot been returned by the respondent.

57. Before getting down to examine these headings one by one it has to3 * noted that to define with anything like precision what another partymight have spent on a particular occasion is indeed very difficult. It is amatter wholy within the knowledge of the other and the most that can be

•expected of the critic is something like a very general estimate. It dsconceivable that data are collected by the critic's agency in respect ofevery individual heading of expenditure and they are placed before the Courtto enable it to form an independent estimate- It is difficult; but it can bedone. The point is it has not been done in instant case. Actually thepetitioner has in his petition and in his evidence attributed a scale of expensesto the respondent which is much more modest—though still above the pre-scribed limits—than one of his witnesses has done. This latter (Anands'nshP.W. 19) seriously alleges that the respondent had spent about 2 to 21 lacs.So fully was this person convinced of the correctness of his e^timnt- that he•went to the Assistant Commissioner of Incometax at Indore and made areport:

"Bankatlalji has spent about 2 to 1\ lacs in this election. You mayprofitably enquire as to v/herefrom this money had come."

LAXM1NARAYAN V. BANKATLAC [VOL. XXXII

Of course, nothing came out of this report and on the whole this witness—-Anandsingh's performance has certainly something to do with the systematicmanner in which befoie every general election he nas been quitting the Cong-ress party and coming back to it after the results were kaown. Tne pointfor our consideration is that estimates whether wide ones like that given bythis witness or comparatively modest ones like that of the petitioner arebound to be tentative and do not carry any conviction unless accompaniedby reliable data.

58. Another point in this connection is that a mere irregularity or for-mal defect in the return filed by a candidate are not by themselves sufficientto lead to an inrerence that he has incurred excessive expenses. In thiscase, for example, the return of expenses and the vouchers accompanyinghave been signed by Nandlal Joshi as the election agent of the respondentthough he himself, the respondent and all the witnesses on his side aredefinite that the actual accounts were maintained by Bhawarlal—one of themuneems or accountants of the respondent who has not been examined. Thereal question is whether the returns have indications of being intentionalynder-statements and there are material items of expenditure omitted.Again, the expenses a political party incurs towards the propaganda can-not be counted against the individual candidate if he, for his part, had beenhaving a separate agency and had been accounting for his own expenses.No doubt, the candidate is one of the beneficiaries of the expenditure in-curred by the party; but that is no reason why the expenditure incurred bythe party should be included in the candidate's expenditure for ihc purposeof the limits prescribed under Section 77. In the same manner, the expen-diture, if any, incurred by the friends and workers out of their own pocketcannot be added up. Applying these criteria and examining the datasought to be furnished by the petitioner we have to come to the conclusionthat nothing has bean shown to convince us that the limits had been exceeded.

59. The alleged expenditure on motor vehicles is typical being in factthe largest single item of 20,000.00. According to the petitioner the respon-dent used quite a number of vehicles 9 jeeps, 2 station-waggons 19 trucks,.4 cars and 1 scooter. Certain numbers have been given as if to createan impression that the data are precise. However, a study of the evi-dence shows that these numbers have been mentioned off-hand. Nobodyhas come to state that he saw the vehicle bearing a particular numbermoving about on a particular date at a {-articular place. t is not suggesteda detailed scheme should be furnished with extreme precision; but even asgeneral statements go, unless we are told when and in what manner a parti-cular vehicle had been used it is difficult to disbelieve the other party's state-ment that it had not been used by him in the election. No notes of thenumbers were made by the petitioner and his supporters about the vehicles.What they seem to have done is to lump together the number of the jeeps,trucks and other vehicles either belonging to the two sugar mills or to theActive Transport or the friends of the respondent and give an apparently-impressive list.

60. As agajnst it, the respondent's account is that he used two ieepsall the time, tne expenses on which he has included in his return. Twomore jeeps belonging to his friends were on many occasions on the electionduty the expenses on which they had themselves incurred. One of themis Nandlal Joshi (R.W. 11) and the other is Ramlal Modi (R.W. 14) .

E.L.R.] LAXMINARAYAN V. BANKATLAL 219

Nandlal Joshi as already mentioned is an old worker of the Congress partywho originally belonged to Jaora but had many years before this electiongems and settled in some pan of the lndore district. In this election hehad been sent by the Congress party primarily to bring about a settlementbetween two factions at Jaora; that done he began to work in the eiec'aciiior uic congress party, but on the 13th or the 14th February was nomina-ted the respondent's election agent. He had a jeep of his own driven byhis 01 his son s driver in which he put his own petrol treating it as hisconiriDUuon to the party cause. Ramlal Modi is a businessman havingan oil press in small town at some distance from Jaora. He used his jeepprimarily on his own work but whenever an occasion arose he did electionwork of the respondent as a friend. He states that he did not chargethe respondent for the expenses.

61. The trucks it is alleged by the petitioner were used on three occa-sions on a large scale,—0:1 the 17th to bring a large number of villagerstotalling about" 10000 to take part in the procession at Jaora and secondlyin the procession itself; and thirdly to bring voters to the polling booths onthe 20th February. I have aiready touched upon the question of thevillagers being brought from the villages for the procession and it need onlybe repented that there is no acceptable evidence on this. In this regardas on the other matters the witnesses called by the petitioner practicallyall of whom are connected with the Jan Sangha and the, petitioner's candi-dature assert that they saw the respondent's trucks come to their villageand take some of the villagers for joining the procession at Jaora. The pointhere is that such an event could not have missed the observation of thepublic servants like police officers or magistrates who must have alreadytaken their stand at the places where people were collecting for the proces-sion. Similarly on the number of trucks in the procession on the one handthe petitioner has given an estimate of the order of 15 or 20 while therespondent has made it 5 or 6. The exact details of the procession couldhave been got from the 'public servants who must have accompanied it;this has not been done. The real point in regard to the entire processionis that the respondent's story that it has been organized by the Congressparty and not by himself is convincing. After all the procession was notonly for his candidature but for the candidates-—both assembly and theLok Sabha. It carried not his individual banners but those of the MandalCongress Committee. That way, whether there were 2000 or 10000 or15000 people in the procession or whether there were 5 trucks or 20 trucks,the expenses in that regard need not be put against this candidate. Tt wasthe expense incurred by the party for its general propaganda.

62. It is in connection with this procession that an expense of 7000is supposed to have been incurred by the respondent for feeding the vill-agers who were brought there. I have dealt wi;h it separately and I haverejected the story. Another 3000 was according to the petitioner spentto feed the workers that canvassed for the respondent. The latter, forhis part denies that he gave any money for feeding the workers and assertsthat from the manner in which he had arranged his work there was alto-gether no occassion for such feeding. According to him the constituencywas divided into 6 or 7 circles, the electioneerine; in each circle beingincharge of such members of his business a<?encv in that localitv as werewilling to work on his behalf. They worked at first in their off-time andlater on took earned leave. They did not have to go long distances and at

2 2 0 LAXMINARAYAN V. BANKATLA1, I VOL. XXXtt

the most had beats of a few miles which they did on bicycles finding theirown food. This looks very plausible. At Jaora itself according to therespondent his workers came from their houses, went from voter to voterand returned to their normal duties. All the time there-was the partyagency at Jaora ami the election office in charge of one Ramchandra Por-wal and elsewhere different Mandal Congress offices, in chargeof the local workers. Even if they spent money in feeding,their workers it was not • the concern of the candidate. Ac-tually, however, witnesses from the different Mandal Congress,committees have said that they found their own money and didnot depend on the higher levels of the Congress organization. If theywanted an office one of the villagers gave some building. He either tookrent and contributed it back to the mandal fund or gave the building rent-free. They went about on their own bicycles and carried their own foodor cam© home to feed themselves. The picture no doubt looks extremelysimple; but there is no reason why we should discard it and accept thegeneral statement that hundreds of thousands of rupees were spent onfeeding the respondent's workers.

63. Generally speaking about the, election materials printing and thelike, it is common ground that boards and posters were fixed, flags weredistributed and some literature at least printed and circulated by the candi-date himself. The only difference is about the quantity. While the respon-dent gives a very modest estimate of the quantity the petitioner speaks ofseveral thousands worth of material being distributed. Of course when itcomes to the similar work done by the Jan Sangha itself, their witnessesadmit on the, one hand tihat the pattern of electioneering and literature distri-bution was the same but on the other state the quantity was different,the proportion between the respondents and the petiioner's scales being"as between one rupee and two annas". All this is hardly convincing. Onthe printed material the respondent has pointed out that he printed his ownliterature and in addition bought some from the Congress party, the expenseson which he has returned. Similarly, on flags and badgesand calendars he has given hh, figures which do appear plausi-ble though the petitioner's estimate is much higher; but there are no datafrom which we can hold that the petitioner's estimate is correct. On the;whole, therefore, in t!he matter of expenses the petitioner has tried to provewhat is really difficult and has quite failed.

64. This disposes of all the grounds raised by the petitioner. Myconclusion is that he has not proved even one of the many breaches withwhich he charges the respondent. Accordingly the petition fails and isdismissed- The respondent shall get his costs from the petitioner asproved by his certificates and vouchers, and in addition, pleaders fee ofRs. 800.00 (eight hundred) which is by no means excessive consideringthat on the hearing along the case has come up on more than twenty daysThe petitioner will be entitled to withdraw the balance of the depositif any.

IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANAPARAS RAM

V.SHIV CHAND & ORS.(A. N. GROVER, J.)

October 24, 1967

Constitution {Scheduled Castes) Order 1950—Chamar and Mochi—ifsame caste.

Challenging the first respondent's election, the petitioner alleged thatrespondent No. 8 was a Chamat by caste and as such belonged to Sche-duled Castes within the meaning of paragraph 2 read with Part X of theSchedule to the Constitution (Scheduled Castes) Order, 1950, issuedunder Article 341 of the Constitution; that the respondent had filed adeclaration under s. 33(2) of the Act stating his caste to be Chamar; thatthe Returning Officer at first accepted the nomination paper of the res-pondent when the scrutiny was held but subsequently on an objectionraised by the first respondent ordered that the respondent No. 8 was nota Chamar; the proceedings were adjourned and after admitting evidencethe nomination was rejected on the ground that respondent No. 8 be-longed to the Mochi Caste. The Returning Officer was of the view thatthe castes Chamar and Mochi did not mean the same thing because inwhat he called the Punjab List, Mochi had been described as a backwardclass and Chamar as a Scheduled Caste. The petitioner maintained thatChamar and Mochi were not two separate castes and that the wordMochi was merely description of the profession of shoe-making. Dismiss-ing the petition,

HELD:

Respondent No. 8 had not been proved to be a Chamar by caste.The orders made by the Returning Officer appeared to indicate that

he had at first examined the nomination papers of Respondent No. 8 andwritten the word "accepted" but before he signed the Order, an objec-tion was raised that respondent No. 8 was a Mochi and did not belong tothe Scheduled Caste. On the face of it the order showed that he neversigned or announced the order "accepted". There was thus no questionof reviewing an order which had been made and announced.

Bhaiyalal v. Harikishan Singh, A.I.R. 1965 S.C. 1557: Basavalingappav. Mimkhinnappa, A.I.R. 1965 S.C. 1269; referred to.

Election Petition No. 14 of 1967.N. L. Dhingra, Advocate, for the petitioner.C L^ Lakhanpal, Advocate, with I. S. Vimal, Advocate for respon-

dent No. 1,M. R. Agnihotri, K. P. Bhandari & J. B., Bhandari, Advocates for

respondent No. 8.

m

2 2 2 I'ARAS RAM V. SHIV CHAND tVOL. XXXll

JUDGMENT

GROVER, J.—The petitioner and respondents 1 to 7 contested theelections held in February 1967 from the Lambi Assembly Constituency(Reserved Seat) in the District of Ferozepore. Respondent No. 1 secured11,982 votes and was declared to have been elected. It is wholly imneces-sary to set out in their entirety the pleas taken in the election petitionbecause ac the stage of arguments the controversy was confined to thenarrow question whether the nomination papers of respondent No. 8Kishan Lai were rejected by the Returning Officer at the time of scrutinyin accordance with law. Mr. Nand Lai Dhingra for the petitioner madea statement at the Bar that_ he did not propose to nress the allegationsrelating to corrupt practices which had been made in the petition.

According to the petitioner, respondent No. 8 Kishan Lai is a Hinduand is a Chamar by caste. As such he belongs to Scheduled Casteswithin the meaning of paragraph 3 read with Part X of the Schedule tothe Constitution (Scheduled Castes) Order, 1950 (lo be referred to asthe Order) issued under Article 341 of the Constitution. Kishan Lai res-pondent had filed a declaration under section 33(2) of the Representa-tion of the People Act, 1951 (hereinafter called the Act) stating his casteto be "Chamar" which is mentioned in Part X (Punjab) of the Scheduleto the Order where at item No. 9 the following castes are mentioned:—

"Chamar, Jatia Chamar, Rehgar, Raigar, Ramdasi or Ravidasi".It was alleged that the Returning Officer at first accepted the nominationpapers of respondent No. 8 when the scrutiny was held on 21st January,1967, but subsequently on an objection having been raised by respondentNo. 1 that the former was not a member of the Scheduled Castes theproceedings were adjourned for decision to 22nd January, 1967, onwhich date after admitting evidence the same were rejected on the groundthat respondent No. 8 belonged to Mochi caste. The petitioner maintainsthat Chamar and Mochi are not two separate castes and that the word"Mochi" is merely descriptive of the profession of shoe-making.

Although all the respondents were duly served, only the returnedcandidate, respondent No. 1, and Kishan Lai respondent No. 8 filedwritten statements and participated in the proceedings. According torespondent No. 1, Kishan Lai respondent No. 8 is a Hindu but he is nota Chamar by caste. It was denied that he belonged to the ScheduledCastes within the meaning of the Order. In Paragraph 4(i) (a) of thewritten statement, it was averred inter alia that after the promulgation ofthe Order in 1950 and the notification issued, respondent No. 8 andmembers of his family started changing their caste by describing them-selves as Mochis and Chamars. Actually they do not belong to either ofthese two castes. The said respondent was trying to take full advantageof the fact that he was doing business in leather goods and quite oftenpeople called such leather merchants as Mochis. In any event, so it waspleaded, respondent No. 8 was not a Chamar even if he could prove thatlie was a Mochi. It was denied that the Returning Officer had at firstaccepted the nomination papers and then proceeded to admit evidenceand give his decision rejecting the nomination papers. Kishan Lai res-pondent No. 8, in his written statement, supported the allegations con-tained in the petition. It was asserted by him that he was a Chamar bycaste and was doing the business of manufacturing and selling desi lea-

E.L.R.] PARAS RAM V. SHIV CHAND 2 23

ther shoes. Furthermore, he claimed that there was absolutely no differ-ence between a Chamar and a Mocni and that the distinction was whollyartificial.

The petitioner filed a replication in which the position taken up inthe petition was reiterated. It was reasserted that Mochi and Chamarconstituted one and the same caste.

In all five issues were framed out of which only the first four survivefor determination. These are:—

1. Is respondent No. 8 Kishan Lai a Hindu Chamar by castewhich is a Scheduled Caste within the meaning of Part X ofthe Schedule to the Constitution (Scheduled Castes) Order,1950?

2. Was the nomination paper of respondent. No. 8 Kishan Laiaccepted by the Returning Officer and if so, whether theReturning Officer had the power of reviewing his Order?

3. Has the nomination paper of respondent No. 8 Kishan Lai beenwrongly rejected? If so, is the election of the returnedcandidate void?

4. Is Chamar or Mochi one and the same caste and a SeheduledCaste within the meaning of Part X of the Schedule to theConstitution (Scheduled Castes) Order, 1950?

The second and the third issues can be conveniently disposed of first. Itis undisputable that if the nomination papers of respondent No. 8 wereillegally or wrongly rejected by the Returning Officer, the election of thereturned candidate would be liable to be set aside as void in view of theprovisions contained in section 100(1) (c) of the Act. The plea on thebasis of which issue- No. 2 was framed involved the question whether theReturning Officer, Shri G. D. Bhasin, Magistrate 1st Class, Fazilka, hadat first accepted the nomination papers of respondent No. 8 and thenrejected them by reviewing his previous order. Annexures "A" and "C",which have been filed with the petition, are admittedly the true copies ofthe orders made by the Returning Officer on 21st January 1967 and 22ndJanuary 1967 respectively. The order made on the first date runs asfollows:

"I have examined this Nomination Paper in accordance with section36 of the Representation of the People Act, 1951 and decideas follows:—

Accepted.

P.S. Before the Nomination Paper could be accepted and signedin token thereof, it was argued that Shri Kishan Lai is a Mochiwhich is not a Scheduled Caste. Adjourned for proof of adecision for 22-1-1967 at 2 P.M.

on 22nd January 1967 the contending parties produced certain documentsin the shane of School certificates as also birth certificates etc. TheRetunrng Officer was of the view that the castes Chamar and Mochi didnot mean the same thing because in what he calls the Punjab List Mochihad be^n described as a backward class and Chamar as a Scheduled Caste.After discussing the documentary evidence which had been placed before

2 2 4 PARAS RAM V. SHIV CHAND (VOL. XXXir

him, the Returning Officer held that Kishan Lai belonged to the MochrCaste and not to the Chamar Caste and, therefore, was not entitled tocontest from the Reserved constituency, Lambi.

Now, the petitioner did not examine the Returning Officer in evidencefor the purpose of substantiating his allegation that the nominationpapers of respondent No. 8 had at first been accepted and were subse-quently rejeced by way of review of the previous order. Shri G. D. Bhasinbad been summoned and was actually produced as P.W. 4 without oathfor production of the records relating to the elections from the LambiAssembly Constituency but, as stated before, he was not asked to testifiyon oath to the course of the proceedings relating to scrutiny on 21st and22nd January 1967. Krishan Lai respondent No. 8 was examined by thepetitioner as P.W. 8. He stated that that at the time of scrutiny of the nomi-nation papers the Returning Officer at first announced orders acceptingnomination. Then an objection was raised by respondent No. 1 uponwhich the Returning Officer adjourned the matter to the next. date. Afterexamining evidence led by the parties on the adjourned date he rejectedthe nomination papers. He, however, admitted in cross-examination thatwhen the nomination papers were being scrutinised an objection was raisedwhen he was writing the order. According to the petitioner who appearedas P.W. 11, the nomination papers of respondent No. 8 were accepted ^ndwhen the candidates were about to leave an objection was raised * byrespondent No. 1. Thereupon the Returning Officer adjourned the pro-ceedings. The kind of evidence which has been produced for the purposeof establishing that the Returning Qffieer had at first given a decision andhad announced the same accepting the nomination papers of respondentNo. 8 is of a very weak nature, apart from being interested. The ordersmade by the Returning Officer appear to indicate that he had at firstexamined the nomination papers of respondent No. 8 and written the word'Accepted" but before he signed the order an objection was raised thatKishan Lai was a Mochi and did not belong to the Scheduled Castes.Thereupon he adjourned the proceedings to 22nd January 1967 for proof,on the face of it the order shows that he never signed or announced theorder "Accepted" and that while he was writing the order it was arguedthat Kishan Lai was a Mochi and, therefore, he gave an opportunityto the parties to prove their rival contentions. There was no questionwhatsoever of reviewing an order which had been made and announced.Respondent No. 1 Shiv Chand, who appeared as R.W. 7, has clearly statedthat the Returning Officer had written the word "Accepted" on the nomina-tion papers of Kishan Lai but at that very time objections were pressed andthe Returning Officer adjourned the decision to the next date. In cross-examination he stated that the Returning Officer had not announced thathe had accepted the nomination papers of Kishan La! but he had writtenthe word "Accepted". This fact was- known to him because he was sittingnext to the Returning Officer. In.view of the above state of evidence,Mr. Nand Lai Dhingra for the petitioner quite properly and rightly didnot seriously press issue No. 2 which is decided against the petitioner.

Under, issues 1 and 4 which may be dealt with together, three questionswere canvassed:

(1) Whether Chamar and Mochi constitute one and the same casteand the word "Mochi" is merely descriptive of the professionof shoe-making?

E.L.R.] PARAS RAM V. SHIV CHAND 2 2 5

(2) Whether as a matter of fact respondent No. 8 Kishan Lai isa Chamar by Caste?

(3) If Kishan Lai is not Chamar by Caste and he is a Moehi,.whether he would still be a member of the Scheduled Casteswithin the meaning of part X of the Schedule to the order.

In the Gazetteer of the Ferozepore District 1888-89. in table No. IXshowing major castes and tribes the total population of Chamars is statedto be 13,501 out of whom only 74 were Muslims. The population ofMochis is given as 18,386 out of whom under the column of Males byReligion Hindus, the entry is Nil. In the Punjab District Gazetteers relat-ing to Ferozepore District, Volume XVI B, part B, published in the year1913, table 15 relating to tribes and castes gives the break-up of theChamar tribe. The District totals in 1911 showed that the total popula-tion of Chamars was 32,134 out of whom 24,718 were Hindus, 7,403,Sikhs and only 13, Muhammadans. The total population of Mochis wasshown as 22,884 out of whom Hindus were 1,133, Sikhs, 11 and Moha-medans, 21,740. In Volume XVII of the Census of India, 1931 (Pun-jab), part II, the total population of Hindu, Chamars in the province ofPunjab was shown as 3,66,739 males and 3,18,224 females. The totalpopulation of Mochi Hindus was 3081 males and 1519 females—MochiMuslims were 2,51,102 males and 2,09,914 females. In the Punjab Dis-trict Gazetteers, Volume XI, Part B, relating to Ferozepore District pub-lished in the year 1935 in table 15 at page LIII in 1921 the total popula-tion of Chamars was given as 39,447 consisting of 32,520 Hindus, 6,916Sikhs and 11 Muhammadans. Similarly, in that year the total populationof Mochis is shown to be 24,384 out of whom 1,084 were Hindus, 26Sikhs, 2,3274 were Muhammadans. In the Punjab District Gazetteers,Volume XXX-A, relating to Ferozepore District published in 1915, thefigures which are given are somewhat different at page 102. It is statedthere that the Chamars comprised 32,134 persons being 3 per cent of thetotal population. The break-up of the population of Chamars and Mochisas given there is as follows:—

Chamars.

Hindu..'. 24,718

Mohammad" ns 13

Wophis.

Hindu 2/13Sikh 334Mohammadans . , 2i,S i 3

It has further been stated—

"All the leather work is done by the Chamars or Mochis, and theyalso work as labourers in the fields for wages in money or inkind. But in this district many of the chamars are ordinarytenants, and have given up leather work for agriculture. Withthe Chuhras.and lulahas they supply the bulk of the cultivat-ing partners (siris) which are a feature of the agriculture ofthese parts. The Chamars also do the weaving of blanketsand coarse cotton cloth in the Hindu Villages, their place asweavers being taken in the Musalman Villages "by the Julahas.

2 2 6 PARAS RAM V. SHiV CKAND iVGi,. XXXII

Possibly all the tribes: Chamar, Julaha and Mochi, engagedin weaving coarse cloth and working in tanned leather,are ongmauy trie same race, or at all events closely connected,and peihaps of aboriginal descent. The chamars eat the fleshof cows, Dufiaioes, goats and sheep, all cudchewing animals,and woric in their learner, but tney will not eat the ilesh ofthe camei or horse or work in leather made from their hideswhich are left to the Chuhras; nor will they eat fish, lizard orpig. The Chamars are practically all Hindu, and have a casteof Brahmans of their own called Chamarwa or Gurra Brah-mans, wflo do not eat with Chamars and who wear the sacredthread, but are quite distinct from the ordinary high casteBrahmans."

In the glossary of the Tribes and Castes of the Punjab and North WestFrontier Province, Volume III, based on the Census Report for the Punjab,1883, by the late Sir Denzil lbbetson and the Census Report for thePunjab, 1892, by the Hon. E. D. Maclagan the caste o r the tribe "Mochi"is discussed from page 123 to 124:—

"(1) a blacksmith in the Valley below Chitral and in the Gilgit andIndus Valleys: see Chitrali; (2) in the rest of these provincesthe word Mochi is properly the name of an occupation, andsignifies the worker in tanned leather as distin-guished from the tanner. The Mochi not only makesleather articles, but he alone grains leather and gives it asurface colour or stain, as distinguished from a colour dyedthroughout. In the east of the Punjab the name is usuallyapplied only to the more skilled workmen of the towns. Inthe west, however, it is simply used to designate a MusalmanChamar; and the Mochi there is what the Chamar is in. theeast and belongs to the same caste, though his change of reli-gion improves, though only slightly, his social position.

* * * * ** * * * ** * * * *

Mr. Christie, indeed, said that so soon as a Chamar, whetherHindu or Musalman, abandons menial offices and confineshimself to working in leather, he rises in the social scale andassumes the more respectable name of Mochi.

* • • * ** * * * * • • .

In Bawal the Hindu Mochis claim to be of the Kachhwaha goti.e., they assert a Rajput origin, and despise the Chamars andKhatiks. Another got is Chauhhan. In Nabha the HinduMochis are said to affect Devi, Bhairon and other HuvJugods.

E.L.RJ PARAS RAM V. SHIV CHAND 2 27

Though most of them are Muhammadans, Hindu Mochis aiefound in the south-east of the Punjab where they make boxes,saddles etc., of learner, but not shoes, Muhammadan Mochishave no such prejudice."

The tribe or caste "Chamar" is discussed at page 147 in Volume II ofthe atoresaid Glossary. . . .

"The Chamar is the tanner and leather worker of NorthWestern India, and in the Western parts of the Punjab he iscalled Mochi wherever he is, a& he generally is, Musalman, thecaste being one and the same. The name Chamar is derivedfrom the Sanskrit charmakara or 'worker in hides'. But in theeast of the Punjab he is far more than a leather-worker. Heis the general coolie and field labourer of the Villages; anda Chamar, if asked his caste by an Englishman at any rate,will answer 'Coolie' as often as 'Chamar'. They do all thebegar, or such work as cutting grass, carrying wood and bundlesacting as watchmen and the like; and they piaster the houseswith mud when they need it. They take the hides of alldead cattle and the ilesh of all cloven-footed animals, that ofsuch as do not divide the hoof going to Chuhras. They makeand mend shoes, thongs for the cart, and whipsand other leather work; and above a)! they do animmense deal of hard work in the fields, each family supplyingeach cultivating association with the conlimr-.is labour of acertain number of hands."

]t may be mentioned that the figures which have been taken from theCensus Reports arc being used for the purpose of seeing the backgroundand the development of the population of the castes described as Chamarsand Mochis in the Ferozepore District in particular, and in Punjabin general, Mr. Nand Lai Dhingra has urged that under section 15 of theCensus Act, 1948 no reliance can be placed on any censtis reports.According to that section, no person shall have a right to inspect any book,register or record made by a Census Officer in the discharge of his dutyas such, or any Schedule delivered under section 10 nor can any entrytherein be admitted into evidence in any civil proceeding. In the presentcase there is no question of looking at any entry contained in any book,register, record or Schedule prepared by or delivered to a Census Officer.The section in my opinion, does not bar a reference to any historical orstatistical or similar information relating to tribes, castes or religions ofpersons inhabiting a particular area and it only bars inspection of anybook, register or record made by a Census officer in the discharge of hisduty as such. That must have reference only to the original books ordocuments which the Census officer himself prepa-ed while carrying outthe task of taking census in accordance with the provisions of the Act.

My conclusion on the first question is that although, as stated in theGazetteer of the Ferozepore District of 1915 the Chamars and Mochis,who were workers in tanned leather, were orismally of the same race orat all events closely connected, the Mochis developed into a distinct casteor sub-caste in the course of years. It may be that the occupation of

2 2 8 PARAS RAM V. SHIV CHAND [VOL. XXXU

shoe-maker is closely associated with the word "Mochis" but it is wellknown that certain castes and sub-castes have come into existence as aresult of following a particular profession or a vocation or occupation. Thefigures relating to the population of Chamars and Mochis in the Districtof Ferozepore, seem to indicate that the Chamars were preponderantlyHindus and there appears to be a good deal of substance in the statementcontained in the Gazetteer of 1915 that in Musalman Villages, the placeof Chamars as leather-workers had been taken by Mochis. At the sametime it is significant that there were Hindus classified under the heading"Mochis" in the Ferozepore District as also in the whole of Punjab accord-ing to the figures mentioned at page 8 (supra). Mr. Dhingra for the peti-tioner has not been, able to explain why from very early times Chamars andMochis were shown as distinct castes or groups. Reference may also bemade to the statement in the Glossary of the Tribes and Castes of thePunjab and North—West Frontier Province, Volume III (at, page 11)wherein it is stated that as soon ^s a Chamar, wfiet&er Hindu or Musal-man, abandons menial offices and confines himself to working in leather,he rises in the social scale and assumes the more respectable name ofMochi and that in various parts of Punjab Hindu Mochis averted a Rajputorigin. As regards Chamars, it is stated in :lic same Glossary that theyremove the hides of all dead cattle and take flesh of all clcvenfooted ani-mals and that they make and mend shoes, thongs for the car:, and whipsand other leather work, In the Glossary at page. 469 of the Census ofIndia, 1911, Volume XIV, relating to Punjab, part I, it is stated aboutMochis that th&y are both Hindus and Mohammedans, there being only195 Sikhs and that they had been returned all over the province, except-ing a few small states. In the east of the Punjab, the term was appliedto the more Skilled workmen of the towns. In the west, however, it wassimply used to designate a Mohatnmadan worker in leather, whether it bethe Skinner, the tanner, or the shoe-maker.

The oral evidence on the point may be discussed. After discussing4he detailed evidence, the judgement continued.

The general evidence of the witnesses produced by the parties withregard to Chamars and Mochis being separate castes is again conflictingbut I see no reason to ignore tljat two responsible officers have stated who'were admittedly Chamars and with regard to whom nothing nas r beenshown as to why they should have made a statement that the Mochis andChamars were distinct castes. I am referring to the evidence of MalkiatSingh RW 1 and D. D. Kashyap RW 3. At this stage reference may bemade to the manner in which evidence "was considered in Bhaiya Lai v.Harikishan Singh (A.I.R. 1965 S.C. 1557) in a similar matter. The con-troversy in that case Was whether the Dohar caste in the district of Sehorein Madhya Pradesh was different from the Chamar caste. RespondentNo. 1 who contended that the appellant was not a chamar and that theDohar caste was different from the Chamar caste examined 13 witnessesbelonging to the caste of the appellant. This is how their Lordships pro-ceeded to discuss the evidence—"The evidence shows that Chamars andMochis of Sehore district lived in mohallas different from the mohallas inwhich the Dohars lived. Amongst the witnesses examined by respondentNo. 1, the High Court has attached considerable significance to the evi-dence of Kishanlal, P.W. 4. He was the Secretary of the Dohar Snmajstarted by the appellant himself. The appellant was then the Sirpanch

flB.L.R.J PARAS RAM V. SIIIV CHAND 229

•of that Samaj. It is true that the Samaj did not function for long; but the-documents produced by respondent No. l to show the constitution of the-Samaj clearly indicate that the app*ellapt had taken a promiueut part inthat matter. Kishanlal's evidence is absolute]" clear and unambiguous.He has stated on oath that the Dohar and the Chamar castes are entirelydifferent. The Chamars, according to him, take off skins from dead ani-mals, prepare shoes and do leather work; the Dohar, said the witness, isnot the sub-caste of Chamar caste; there is no relationship of, inter-diningand inter-marriage between the two. He denied that the Dohars are calledMochis. Mr. Chatterjee has not been able to show any reason why the

-evidence of this witness should not have been believed by the High Court.The witness belongs to the same caste as the appellant and there is no'motive shown why he should take a false oatN in respect of a matterwhich to persons of his status has great significance. It is not likely thata person like Kishan JL al would make lalse statement about ms own caste."

The evidence led by the respondent coupled with the admissions con-tained in the statements of the petitioner's witnesses including the petitionerhimself establishes that the Chamars take off or remove skins from deadanimals, do leather tanning, make and mend shoes, and put the stitchingthread into their mouth whereas the Mochis only make new shoes and doleather work but do not do any of the other things. It would also appearJhat. t&P Mochis' do not inter-marry with the Chamars. As stated before.I am'generally impressed with the evidence of D. D. Kashyap, R.W. 3,Who belongs to the same caste, namely, Chamar, to which the petitioner•claims to belong, and Mr. Dhingra has not been able to show any reasonwhy this witness should have given false evidence. It appears that theHindu Mochis have developed into a higher caste or caste-group than thatof the Chamars particularly in the matter of social status. The illustration.given by D. D. Kashyap that just as Khatris consider themselves to belongto a higher caste than Aroras similarly Mochis regard their caste as higherthan that of the Chamars is quite apt. Moreover, as stated before. NandLai P.W. 6 stated that at the functions like marriages in his family panditsfrom Arya Samaj or Sanatan Dharam were called.

A reference to the order shows that almost in every other state withthe exception of Punjab and Haryana there is a separate mention of Mochis•even though the caste "Chamar" is mentioned. For instance, item 2 relat-ing' to the state of Andhra Pradesh is "Chamar, Mochi or Muchi". Item4, nowever relating to Bihar and Madras is "Chamar or Mochi", althoughthere is a separate classification given with reference to districts. As re-gards Rajasthan, item 16 runs thus:—

"Chamar, Bhambhi, Jatav, Jatia, Mochi, Raidass, Raigar orRam dasia".

In Gujrat, however, in the district of Danga arid Umborgaon Taluka ofSurat District, Mochi is shown .as a separate entity from Chamar. The-entries relating to Punjab have already been given and as resards Haryanaafter the reorganisation of the erstwhile state "of Punjab, they are the sameas Punjab and there is no mention of Mochi therein. It is unnecessaryto mention about all the other states except the Union Territories of Delhiand Himachal Pradesh. As regards the former, entry No. 10 is "Chamar

- • • • • M°chi, *** ***.» The position re-

2 3 0 PARAS RAM V. SHIV CHAND I.VOL. XXXII

lating to Himaehal Pradesh is interesting indeed. In the notification issued,it is stated:—

"Throughout the Union Territory except the territories specifiedin sub-section (1) of section 5 of the Punjab KeorganisationAct, 1966. 1* * * 14. Chamai, MoSm ><am-dasi, Ravidasi or Ramdasia "

Now, as regards the territories specified in sub-section (1) of section5 of the Punjab Reorganisation Act, 1966, entry 9 does not containMochi. These territories formed part of erstwhile state of Punjab beforethe enactment of the Punjab Reorganisation Act, 1966. The entries inthe order have been referred to by me for a two-fold purpose. The firstis to examine the rival contentions of the counsel based on them. Coun-sel for the petitioner has urged that where Mochi and Chaniar have beenspecified under the same heading it should be held that the same castebore different names. In Bhaiya Lot's case (A.I.R. 1965 S.C. 1557) ithas been stated at page 1560 that the order has taken good care to specifydifferent castes under the same heading where enquiry showed that thesame caste bore different names, or it had sub-castes which were entitledto be treated as Scheduled Castes for the purposes of the order. Particularmention was made by their Lordships of item 2, entry 3 in the district ofDatia which referred to Chamar, ***, Mochi, ***. Sin:;e there is nomention of Mochi under the same heading "Chamar" in the entry relatingto Punjab in the order, it is riot possible to accede to the contention thatit is the same caste bearing different names. On the contrary, it can wellbe said that so far as Punjab is concerned, Mochi was not considered tobe different name of the same caste, namely, the Chamar and, therefore,the entries in the order, can hardly be of much assistance in determiningwhether Mochi and Chamar are different names of the same caste. Theother purpose for which reference has been made to them relates to ques-tion No. 3 which may be conveniently disposed of at this stage. The pointfor consideration is whether a Mochi would be a member of the ScheduledCastes in Punjab within the meaning of part X of the Schedule to theorder, although that casta is not specifically mentioned there. InBhaiya Lai's case (supra) their Lordships have pointed out thatthe pica that the Dohar caste is a sub^caste of the Chamar caste cannotbe entertained in view of the order issued by the president under article341 of the Constitution. In order to determine whether or not a parti-cular caste is a Scheduled Caste within the meaning of Article 341 it hasbeen emphasised by their Lordships that one has to look at the publicnotification issued by the President in that behalf. Their Lordships pro-ceeded to say:—

"In the present case, the notificat:on refers to Chamar, Jatav orMochi, and so in dealing with the question in dispute betweenthe parties, the enquiry which the Election Tribunal can holdis whether or not the appellant is a Chamar, Jatav or Mochi.The plea that though the appellant is not a Chamar as such,he can claim the same status by reason of the fact that hebelongs to ti.i, Dohar caste which is a sub-caste of the Cbamarcaste, cannot be accepted. It appears to us that an enquiryof this kind would not be permissible having regard to theprovisions contained in Article 341".

E.L.R.] PARAS RAM V. SHIV CHAND 2 3 E

Their Lordships distinguished the decision in B. Sasavahngappa v. D.Munichinnappa (A.I.R. 1965 S.C. 1269) on the ground that there werespecial and unusual circumstances in that case which justified the High.Court in holding that Voddar caste was the same as the Bhovi castewithin the meaning of the order. The view expressed in Bhaiya Lai's casewould thus greatly stand in the way of the petitioner for establishing thatalthough Mochi is not included in the entry relating to Punjab in the order,Kishan Lai should still be deemed to have been a member of the ScheduledCastes within the meaning of the order. Counsel for the petitioner hastelied a great deal on the other decision in B. Sasavalingappa's case(supia;. In that case it was held that Yoddar caste of the Mysore Statebefore the States Reorganisation in 1956 was the same as the "Bhovi"caste—mentioned in the Constitution (Scheduled Castes) Order, 1950. Itwas, however, laid down that ordinarily it was not open to give evidencethat the Voddar caste was the same as the Bhovi caste specified in theorder because Voddar caste was not mentioned (after the Bhovi caste)but difficulty arose in the case of Mysore State as it was before the StatesReorganisation in 1956 from the fact that there was no caste known asBhovi caste at all although the order referred to such a caste. It was saidthat in such circumstances it must be accepted that there was some castewhich the President intended to include after consultation with the Raj-prannikh in the order and, therefore, the only course open to courts tC'find out which caste v/as meant by Bhovi was to take evidence in that,behnlf. I do not consider that the decision in this case can be of anyavail to the petitioner who in the absence of any special or peculiarcircumstances of the nature obtaining in that case could not even beallowed to give evidence or to show that for the purposes of the OrderMochi was the same caste as Chamar and that even if Kishan Lai respon-dent No. 8 was a Mochi, he belonged to the Scheduled Castes notified inthe Order.

Question No. 2 may now be decided. It has been asserted on behalfof the petitioner that respondent No. 8, Kishan Lai is a Chamar by caste.The evidence which has been led by the petitioner in support of this caseis of the following three kinds:—

(a) The acceptance of the nomination paper of Kishan Lai,Exhibit P. 2, which he filed as a member of the ScheduledCaste and which was accepted for the purpose of election tothe Municipal Committee, Abohar, in 1961;

(b) Entries from the school registers relating to the sons andseveral other relations of Kishan Lai, and

(c) Oral evidence relating to the caste of Kishan Lai.

{His Lordship discussed the oral and documentary evidence andconcluded.)

For the above reasons I am satisfied that Kishan Lai has not beeffiproved to be a Chamar by caste. The petition fails and it is dismissed!with costs. Only the contesting Respondent No. (1) shall be entitled tothe costs which are assessed at Rs. 712/55 including counsel's fees fixed!at Rs. 500.00.

Petition Dismissed.1 E.C.—20

IN THE HIGH COURT OF MADHYA PRADASH AT JNDORE

SHANTIBHAI

V.

MAHADEO AND ORS.

(H. R. KRISHNAN J.)

October 31, 1967

Constitution of India Art. 191(1)—Office of Profit—Inclusion in thepanel of lawyers for Railway Administration—Continuing obligationto watch cases—// office of profit—Continuance as professor aftersuperannuation—If still holder of office of profit.

The election of respondent No. 1 was challenged on the ground thathe was disqualified under Art. 191(1) (a) of the Constitution as he washolding one or more of three offices of profit viz-, (i) his being includedin the panel of lawyers prepared by the Central and Western RailwayAdministrations; (ii) hTis holding the post of the President member ofa tribunal constitvthe M.P. Town Improvement TrustsAct, 1960; and (Hi) his holding the office of Professor of Law in theMadhav College, Ujjain, on a regular salary of Rs. 250 p.m. Allowingthe election petition.

HELD:

(i) The respondent was the holder of an office of profit in the RailwayAdministration. The respondent, under the terms of his appointment,even when working in any particular case in which the railway was in-volved could not accept a brief against any railway administration andwas further charged all the time with the duty of watching the courtcause-lists and spotting if there were cases against the railway and takingnecessary steps. The test is not whether the appointment is made inaccordance with a contract or with a statutory provision, but whetherhaving been made it imposes continuing obligations on the holder inreturn for which he may reasonably be expecting to make some moneyprofit. To constitute office of profit all that is necessary is that the officeis capable of yielding a profit to the holder though at any particular timethere may be no actual income.

Govind Malaviya v. Murlimanohar, 8-E.L.R. 84; State of Rajasthanv. Madan Swamp, A.I.R. 1960 Raj. 138; Dr. Dearao Lashman v:Keshav Lakshman, 13 E.L.R. 334; referred to.

(ii) There was no evidence to show that the respondent had acceptedthe office of the President of the Tribunal constituted under the M.P. Town•Improvement Trust Act.

232

E.L.R.] SHANTIBHAI V. MAHADEO 233

(iii) The respondent was in government service actually working h,the Madhav College on deputation to the University during the periodof election and as such was holding an office of 'profit. What is necessaryto make an office of profit is the de jacto holding of the post whether ornot the appointment orders are in full accord with the rules. Agovernment servant who is continued in the appointment after the age ofsuperannuation without a formal written order of his employer and drawshis pay during the period cannot assert that he was not in governmentservice. It is not for him when faced by a third party to assert that hi*appointment was not regular. ,

State of Rajasthan v. Sripal Jain, A.I.R. 1963 S.C. 1323; State ofAssam v: Padma Ram, A.I.R. 1963 S.C. 473; L. N. Saksena v: State ofMP A.I.R. 1967 S.C. 1264; referred to.

Election Petition No. 40 of 1967.

Messrs Bachawat and Pawacha, for the applicant.

Messrs Chephekar and K. B. Saxena, for the opposite party.

KRISHNAN J.—This is a petition under Section 81 of the Representationof the People Act by an elector, who incidentally happens to be the husbandof respondent No. 2—one of the defeated candidates. It is in challengeof the election of respondent No. 1 Mahadeo Govind Joshi in the MadhyaPradesh Ujjain North Vidhan Sabha constituency No. 245 . In thepetition a large number of grounds have been alleged including appeal ft?religion and threat of divine displeasure; but at the final stages the "peti-tioner has restricted himself only to one heading which is numbered 1in the issues, concerning the alleged disqualification of respondent No. 1under Article 191 (i) (a) of the Constitution as he was holding thrseoffices of profit under either the State Government or the Union Govern-ment in the Western Railway Administration.

2. The petitioner's allegation is that, having held at the time of theelection three different offices of profit, one under the Union Governmentin the Western Railway Administration and two others under the MadhyaPradesh State Government, the respondent No. X was disqualified and tlieelection has to be declared void under Section 100(i)(a) of the Represen-tation of the People Act,—

"disqualified to be chosen to fill the seat under the constitution."

Each of these three alleged disqualifications is by itself sufficient tocall for an order declaring the respondent's election void; but it would beproper to examine each of them separately. It Jias to be noted that thereis the additional prayer that the respondent No. 2 Hansaben Patel securingthe second largest number of votes should be declared elected; but thepetitioner has not established the requirements either of Section 101 (a) or(b) so tint in effect the prayer for the avoidance of the election of respon-dent No 1 has alone to be considered.

234 SHANTIBHAI V. MAHADEO fVOL. XXXIt

3. In view of the narrowness of the field of controversy as it has shaped.we need only briefly summarize the very salient features of the election,There were actually eight candidates out of whom live polled so few votes,that they forfeited their deposits. The remaining three stood in thefollowing order:

(1) M. G. Joshi (successful candidate and contesting respondent)23,709 votes.

(2) Mrs. Hansaben Patel (Congress) 10,767 votes.

(3) Bansidhar Azad (Communist) 7,093 votes.

Though the respondent No. 2 has not filed her written statement thepetition is in effect one in her interest.

4. The allegations, that call for consideration have been incorporatedin the following issue:—

" 1 . (a) Was the respondent No. 1 holding one or more of thethree following offices of profit?

(i) his being included in the panel of lawyers prepared by theCentral and Western Railway Administrations.

(ii) lis holding the post of the president-member of a tribunalconstituted under Section 73 of the M. P. Town Improve-ment Trusts Act, 1960.

(iii) hk holding the office of Professor of law in the MadtiavCollege, Ujjain on a regular salary of 250 p.m.:

(b) If so, its effect?"

Cround No. (i).—Employment by the Railway:

5. Though the issue has mentioned Central Railway Administration asT ell, the documents produced relate only to the Western Railway Adminis-tration. But this does not make any material difference because theholding of an office of 'profit under any of the railway administrations isreally the holding of such office under the Union Government and as sucha disqualification for the membership either of the Union or of any StateLegislature. In February 1962 the Western Railway Administrationsddressed a letter offering, the respondent a place in "the panel of railwaypleaders for conducting suits filed by or against the Union of India repre-sented by the Western Railway in the Courts of Ujjain on the followingterms and conditions of lees". This is Exhibited at P / l . There are asmany as 16 headings most of which relate to fees but some of which havea farther effect. We are concerned with conditions in paragraphs 9 and1 3 : - *

"9. Acceptance of briefs against any Railway in any court will notbe allowed.

13. You will be expected to watch cases coming up for hearingagainst this Railway in the various courts at UJN nnd give-

-E.L.R.] SHANT1BHAI V. MAHADEO ' 235

timely intimation of the same to this office. If no instructionsregarding any particular cage are received "by you,you will be expected 10 appear m the court and obtainan adjournment to save the ex-parte proceedings againstthis Railway in the court. You will be paid Rs. 5for every such adjournment if you are not entrusted with theconduct of the suit later on."

£>hri Joshi accepted this offer in his letter dated 19-2-1962 (Lx. lJi2).

"In acknowledging your letter No, I have to thank you for keepingmy name in the panel of Railway pleaders. The informationabout the condition and terms of engagement was given to meand I had already given my acceptance."

Presumably he had written an earlier letter to the same effect; but hewas again confirming that h e had accepted the conditions including thoseIn paragraphs 9 and 13.

6. On behalf of the petitioner it is urged that the arrangement between,the administration and the respondent is not one for ad hoc briefing in indi-vidual cases without any continuing obligation on the part of the pleader,'but is what can be properly described as the office of a "standing counsel",

who has to appear in every case unless ordered otherwise, whether or notthere is a specific instruction to that effect. In that sense this is a case ofcontinuing obligation. As against it, the respondent has urged that this isa case of a lawyer discharging professional duties and offering legal assis-tance on casual occasions, and the mere inclusion in the panel is only amatter of preference and not creation of any continuing obligation. Infact on the argument of the respondent there is no office of the lawyer forthe Western Railway cases at Ujjain. Both parties have, tried to derivesupport for thejr contentions from caselaw.

7. The phrase "inclusion in the panel of railway pleaders" is by itselfnot of much significance, because this phrase may be used in more thanone sense. Broadly speaking, two kinds of arrangements are possible.There is the one which came up for consideration before the ElectionTribunal Allahabad in the case reported in Govind Malaviya v. MurliManohar, 8 ELR 84. It is only a decision by a tribunal and not;by a High Court or by the Supreme Court; but the factsof that case provide a clear instance of the "railway pleader" so called notbeing the holder of an office of profit. In that case the position was thatthe railway pleader was not bound by any obligation corresponding toParagraphs 9 and 13 in the present agreement. He was absolutely freetill he accepted the brief in any particular case; he could, before thatappear against the railway in any other case, and was not bound to attendthe courts and look up the lists to see if any case was coming up againstthe railway and to take appropriate action, namely, informing the adminis-tration onthe. one hand, and taking adjournments from the courts on theother. Tn the instant case, on the contrary, even when not working in anyparticular case in which the railway is involved this resnonchnt. as railwaypleader could not accept a brief against any railway admini tration and was•further charged all the time with the duty of watching the ourt-cause-lists,

2 3 ° SHANTIBHAI V. MAHADEO LVOL. XXXII

and spotting if there were cases against the railway, and taking the stepsI have already noted. This t0 my mind makes all the difference.

8. It is urged that usually a person rendering "professional services"ffiay not be the holder of an office of profit. This is certainly to make avery wide statement; because professional duties whether ot a doctor ora lawyer might be rendered either on a casual ad hoc basis or on whatmight be called a standing arrangement which imposes subsisting and con-tinuing obligations on the professional man. In the case reported inMate ot Rajasthan v. Madanswarup A1K I960' Kajasthan 138, it washeld that the contract between Government and the Government pleaderwas "purely professional". This may be so but has no bearing on ourpresent problem, the question being not whether it is a professional orany other kind of contract but whether it is an "office of profit". Anothercase that came up before the Bombay High Court in Dr. Deorao Lakshmanv. Keshav Lakshman, 13 ELR 334 is instructive. There a doctor wasunder an agreement to render p'rofessional assistance to the. insured employeeunder the Employees State Insurance Scrjeme. He was not getting anyretainer or.monthly pay, nor was he called upon to attend any office fromday to day; but any employee of one of the listed establishments in need ofmedical assistance could go to this doctor who was to give that assistanceand get fee on an agreed tariff. The appointment of course had beenmade by the Government. It was held in that case:—

"The word 'office' does not necessarily imply that it must have anexistence apart from the person who may hold it. The merefact that the post which .a. person holds will cease to exist assoon as he gives it up or other persons cannot be appointedto that post, is not a ground for holding that that person doesnot hold an 'office'."

In certain earlier rulings there are suggestions that an "office of profit"should exist independently of the holder whose disqualification is underscrutiny. This ruling restricts the application of that doctrine. In theinstant case we do not even have to go so far as the Bombay High Courthas done. After a\l the railway administration did want a kind of legalwatchdog in the courts at Ujjain. "Standing counsel" may be a high-sounding phrase to describe this; but in that humble sphere the respondentwas discharging precisely those functions. But even assuming that withoutthe respondents functioning in that capacity, the administration could havemade some other arrangement for watching over its cases in the Ujjaincourts, still there is an "office" and at the relevant time the respondentwas holding it.

9, A 'point is sought to be made on behalf of the respondent from thefact that no monev was paid as a retainer. Fees for different kinds ofprofessional assistance have been prescribed and in addition for the•.ne'e watching and the taking of adjournments a special fee of Rs. 5 perea=e has been provided. Of course, if later on this particular lawyerappears in those cases, the Rs. 5 fee is to merge into the larger fee hehas to set under other provisions. But the point to note is that a regularmonthlv or similar periodic payment of money is not a criterion for anoffice of profit. A11 that is necessary is that the office is cavable of yieldinga profit io the holder, though at any particulars point of time there may

E.L.K..1 SHANTIBHA1 V. MAHADEO 237

be no accuai income. As stated by the t>o;iibay H;gh C)urc in the abovecase—

' In order that an office may be an 'oiiice of pronV it is not necessarythat the holder of the office should actually make a profit outof it. It is enough if the office is capable of yielding a profit,or in other words, is one from which the person holding it

may reasonably be expected to make a profit out of it."

1.0. The respondent has urged that there is no parallel between this caseand the present one because the doctor appointed in the Bombay case wasfunctioning in accordance with a scheme made under statute. Thisis correct; but the test is not whether the appointment is made in accordancewith a contract or with a statutory provision, but whether having been made,it imposes continuing obligations on the holder in return for which he un-reasonably be expecting to make some money profit. By that test this iscertainly an office of profit. The same principles emerge out of the casereported in Moti Lai v. Raj Bahadur, 15 ELR 55 where the office concernedwas that of an Oath Commissioner. There again there wasno regular monthly 'pay but the holder derived income on arecognized tariff from oaths as he would usually administer; but therewas continuity of obligation and accordingly it was held to be an officeof profit.

11. The respondent has cited the case reported in State of Rajasthanv. Madanswarup (supra). There the question was whether a GovernmentAdvocate, that is, an advocate appointed by the State to conduct its criminalcases in High Court and still allowed civil practice, was the holder of a;"civil post", entitled to the protection of Article 3.11 of the Constitution.The High Court held that such a person was not one in the civil employ-ment of the State for the purposes of that article. But that is not thequestion which we are examining; we are not concerned with whether ornat in the event of a difference between the respondent as their standingcounsel in the Ujjain courts and the, Western Railway Administration, itwould have been possible for him to invoke Article 311. Here there isno difference between the employer and the employee. It is onlv a thirdparty which alleses. not that this lawyer is a servant of the Union Gov-ernment for the purposes of Article 311, but that he is holding an officeof profit as mentioned in Article 191. For that the tests have already beenindicated. T would, therefore, hold that in the instant case the lawver £!D-pomted under the terms and conditions in Ex. P/1 includinc? in particularParagraph 9 and 13 is the holder of an office of profit appointed in therailway adminstration bv the officers of the Union Government, As inchtt is a disqualification under Article 191: the acceptance, of his nomina-tion paper was improper and he is not entitled to hold the seat in theVidhan Sabha.

Ground No. (ii).—Appointment on the Tribunal:

12. The second office of profit that the respondent is said to have heldis that of the President of the tribunal constituted under Section 73 of theMadhya Pradesh Town Improvement Trusts Act, 1960. 'IVre is nn Im-

SHANT1BHA1 V. MAHADilO , IVOL.

provement Trust in the Ujjain city, and a provision has been made for theuisposai of claims by owners of property against it. A tribunal Had Deenconsututed on the usual pattern consisting of tnree members one of whomwas 10 be tne president, and the other two ordinary members with somespecial qualifications. Ine case of the petitioner is that the respondent iiadbeen appointed to the office of the president in October 19o6, and wasactually voiding that office during the election time in January and February,i967. The respondent's answer is that the whole thing had been a mistakeana the person appointed was not himself, that is, "M. Ci. Joshi! but one"JM. C. Joshi"; whether or not a person of that name existed, and furthereven if everybody understood by that name np other than the respondenthimself, still he had not given his consent and he had not even afterreceiving the order done anything to show that he had accepted theoffice.

13. The factual position is that the appointment was gazetted inOctober, 1966 by the notification brought as Ex. P/3. There is no clearpositive indication that this respondent has been consulted beforehand; butthe question for us is not whether he had. been consulted, but whether onthe publication of the, notification and his receipt of a copy, he acted ina manner as would indicate that he had accepted the post. It is to benoted that there is no regular office or staff or any such establishment forthe tribunal. There is also no monthly or periodic pay. Whenever adispute comes up' the Trust refers it to the tribunal whereupon the tribunalmeets, hears the parties and gives an award, the Trust itself making thearrangement for the office. There is payment on a daily basis for the dura-tion of the case. In these circumstances there is really nothing correspond-ing to the physical taking charge. What we have got from the respondenthimself is that when the order.was delivered at his house, he took it, anddid not inform anybody connected with the Trust, or as for that matter,the Government, that the order had come to, him by mistake and he wasnot "M. C. Joshi" and he was in any event unwilling to function, and hadin fact not been consulted beforehand. He just kept quiet. This disqua-lification was urged at the time of the, scrutiny of the nomination papersand after it became cautious. In March he wrote a letter to the Collector•who is the ex-officio Chairman of the Trust that he had not accepted theoffice. This is of course not of any consequence.

14. That there has been a mistake is obvious. At the same time it isnot urged at all that there was another advocate of Ujjain of the name"M. C. Joshi"; quite, on the contrary everybody took the "M. C. Joshi"•'ti the notification to be no other than M. G. Joshi Advocate-res'p'ondeihere. The deciding point for our consideration would be whether he himself understood it as his appointment, and not having declined or refuseo,it bv an appropriate Communication to Government or by the Chairmanof the Trust, should be deemed to have accepted the office. That hisnot refusing the order and keeping quiet was on a matter of apathy, as infact he did not feel any call to write to anybody in view of the mistake inthe name. Another view that he accented the office is equally 'olausibKHowever t1if s'lffic'encv of nronf for disqualification or corrupt praciicp i«tfiese cases is not one of a slight overbalance, but of preponderance anrireasonable c>.rtn;ntv as in n criminal case. Bv that standaH T fpRi tha*

i o / 1 d s i a H r i d e n e

T would accordingly hold that it h reasonably doubtful :f th

E.L.R.] SHANTlBHAi V. MAHADEO 239

respondent had really accepted the office, of the president of the tribunalin the circumstances stated above. This, therefore, is no disqualification.

Ground No. (Hi)—Appointment in the Madhav College: i

15. According to the petitioner the respondent was holding yet anotheroffice of profit under the Government of Madhya Pradesh, namely, that oithe Professor of Law in the Madhav College, Ujjain, on a regular salaryof Rs. 250.00 p.m. The entire sequence of events has been brought oilrecord and no stage is in controversy. What is in controversy is a point

- of interpretation, whether the respondent was still in Government servicebut on deputation to the V'ikram University, or whether at one or otherof the three stages he had notionally gone out of Government service andnotional become a several of the University. The facts are as follows:—

16. As long ago as 1950 when the Madhav College started its law• classes Shri Joshi—the respondent—was invited by the principal to come

and work as a lecturer. He did so and for some time his work was purely• on the basis of an arrangement between him and the principal. However,

in July, 1951 the principal wrote to the education department that ShriJoshi should be formally appointed. Ex. R/3 is the letter addressed bythe 'principal Shri Dala'ya to Shri M. G. Joshi dated 26th July, 1951. Later

> on Government, which was running the college, appointed the respondentby its letter dated 7th April, 1952 (Ex. R /4 ) .

"On one year's probation. . . . as part-time Professor of law atMadhav College Ujjain on a fixed salary of Rs. 250 p.m. witheffect from the date he resumed his duties in a temporary capa-city i.e. 1st August, 1951."

The letter itself is in the form of a sanction; but copies were commu-nicated both to Shri Joshi and to the principal and on that basis theformer continued working. There is no doubt that it was a part-time

-• employment without increment or pension or provident-funds benefits. Butthere is some uncertainty as to whether at the end of the one-year periodthe post had become "permanent". Actually the one-year period ended

• on the 1st August, 1952, that is, within four months of the appointmentorder, the appointment •being retrospective in effect; but on no occasionafter that date was any formal order issued confirming Shri Joshi in thepost of part-time professor. One view would be that the confirmation wasautomatic when he continued after the one year probation-period, and the

• other is that it continues to be "temporary" til] a formal order of confirma-tions sent. It is not necessary for our purpose to go any further into thisdiscussion. Whether it was a temporary an'o'ointment or a permanent one.it continued till July, 1967. without a break, and if it was a post heldunder Govermr*nt at the re1evanf time it is certainiv an office of nrofit.

17. Shri Joshi continued working all the time in t '^ Madhav CniW--h'it certft'n chanees were hap'p'enms in the management of that institution.

"Till Ma'ch 1959 the college was no' onlv n Govertrnen'-owned ins^tm^n

24° SHANT1BHAI V. AlAHADEO LVOL. XXXil

but one which was being managed day-to-day directly by the EducationDepartment. In the end of March, 1959, however, there were certainchanges in tilt management of that institution without the Governmentrelinquishing ownership or ultimate control. I he Vikram University hadbeen established ai that time and this being the premier institution at Ujjainit was considered proper that the control should be handed over to theuniversity. The ultimate purpose was that the institution itself should bewholly made over; but that was to happen after five years of universitycontrol with the Government's ownership continuing, and examination bythe Governor of the working of the system and his decision that a finalhanding over was found advisable. An agreement was entered into betweenthe Government and the university (Ex. P/8). According to it the univer-sily undertook to "own" the management of the college for a period of fiveyears. If at the end of that period the Governor was satisfied that themanagement had been p'roper and efficient he was to transfer the collegepermanently to the university. The Governor's decision was to be final.The working staff were placed on deputation under the university whilecontinuing to be Government servants with a lien on their permanentposts.

"15. The existing members of the staff and other servants of thesaid college shall be treated as being on deputation to theuniversity during its period of management and shall be deemedto have been deputed on the usual foreign service conditions,retaining their lien in the State Educational Service. Theuniversity shall be liable to make payment of salaries and otherallowances, except the deputation allowance, to the membersof the staff and other servants of the said college, in employmentat the date of its transfer."

The staff including Shri Joshi accepted this arrangement. In additionto this the university was competent to make its own appointments, sothat during the period of Government ownership and the universitymanagement, it was conceivable that there were, two types of members onthe staff-one coming from the Government service on deputation and theother full-time direct employees of the university; we are of courseconcerned with a professor who, having been in Government service onthe, 31st March, 1959, was placed on deputation with the university, andwhile drawing his pay in the Madhav College directly from the university,was having his lien on his Government post. The finances were of coursesupplied by the Government, at the first instance, Rs. 3,00,000 per annumwhich was later on increased to Rs. 6,00,000. The university was tomanage the college on this allotment which was budgetted every year andsupplement it, if" necessary, with its own income from the fees and thelike.

18. Thus between the years 1959 and 1964 the respondent wasundoubtedly a Government servant on deoutation with the university. Nodoubt, he has urged on completion of 55 years in July, 1961 he shouldbe deemed to have retired from Government service and as he was stillworking in the, Madhav College, aaain deemed to have been appointed bythe University. I shall come to it presently.

E.L.R.] SHANT1BHAI V. MAHADEO 241

i9 . By March, 1964, the Government was still not prepared to handover the college to the university on a permanent basis. Accordingly atelegram (Ex. P/7) was sent by Government to the Vice-Chancellor :

"h Pending Government decision on Sen Committee reportexisting arrangement regarding Madhav College, may continueon the same terms till thirtieth June, 1964."

The University Syndicate itself resolved towards the end of June thatfurther consideration of the terms of the final transfer may be deferred tillGovernment itself communicated its decision (R/10) . In the beginningd June Government wrote to the Registrar of the University that inprinciple it had decided to transfer the Madhav College parmanentry t 0 theVikram University; but the transfer deed was under preparation incorporat-ing some conditions and terms and when ready it would be sent to^theuniversity for its perusal and concurrence. That letter is worth quotingin full (Ex. R / 8 ) : .

"SUB.:—Permanent transfer of Madhav College, Ujjain to theUniversity.

I am directed t 0 refer to the D.O. letter of the Education SecretaryShri V. S. Krishnan bearing No. dated onthe above subject and to say that the State Government havetaken decision to transfer the Madhav College, Ujjain to theVikram University permanently with effect from 1st July,1964. A regular transfer deed will, however, have to be enteredupon by the parties concerned and the same is being draftedout, incorporating therein the terms and conditions of thetransfer. As soon as the draft transfer-deed is ready, a copyof the same will be supplied to the University for its perusaland concurrence."

Things have continued to this day exactly as they stood in the beginningof July, 1964, the transfer deed not having been yet prepared, concurrencenot having been obtained, and the actual transfer not having been effected.

20. Meanwhile Shri Joshi-respondent who was continuing on thearrangement made in March, 1959 reached the age of 55 in July, 1961.The position is that Government was at that time following the FundamentalRule 56 in its original form; Government servants would normallysuperannuate on attaining the age of 55, but Government might for reasons

- to be recorded continue them in service for any longer period it chose.Actually this limit was extended to 58 sometime later, and in 1966 and1967 which is the period we are concerned with, the superannuation limitwas 58. The university, however, had a slightly different rule; no teach-ing member on its staff could work after completing 60 'years whether hewr>s a direct employee of the university or one on deputation. This wassubject to a rider that, in the event of any such member completing 60 vearsin the middle of an academic year, he would not be retired immediatelyb?t would bi allowed to function till the end of that academic'year. Now»Vje respondent who was born on the 30th July, 1906 continued on

d^TJlatinn t;!l 1966 wi'hout either the Government or the university taking:Vrv notice. However, in July 1966 the university noted that he hadcompleted 60 years, but the academic year had started on the 1 st July, and

SHANTIBHAI V. MAHADEO LVOL. XXXJl

accordingly it permitted him to function for the whole academic year, itwas in course of this year that he contested this election. It is commonground that during the election period he was working as the law professorin the Madhav College teaching his subject and drawing his pay. Ulti-mately, after the end of that academic year in July, 1967, the universitydispensed with his services, and as he was on deputation informed thelending authority, namely, the Government, the fact and reason for dis-pensing with his services. This was of course after the election.

21. To complete the narration of facts it has to be noted that theGovernment itself chos© to reply to the university's letter in October, 1967(Ex. R / l l ) . The letter is dated 9th October, 1967, but was actuallyreceived by the Registrar on 16th October, 1967. An interesting detailis that the Registrar was under examination and cross-examination on the15th and respondent's counsel wanted him to come on the,16th. On the resumption of the cross-examination he was asked whetherhe had not received a letter from the Government about the services ofShri Joshi, and he accordingly produced the letter which he had receivedon the 16th morning at Ujjain before his coming to Indore. Anyway, theletter runs:

"SUB.—Services of Shri M. G. Joshi part-time professor of law,Madhav College, Ujjain.

As per rules a Government servant superannuates on completingthe age of 58 years. Accordingly Shri M. G. Joshi, part-timeprofessor of law ceases to be in Government service with effectfrom 30th June, 1964, A.N., the date on which he attained theage of superannuation, i.e. 58 years."

This letter is of no assistance to either party because we have to dealwith the question on the merits here, and the opinion of the secretary

- in the education department is altogether irrelevant to our purposes. It isindeed strange that this opinion should have been tendered in the mannexand circumstances set out above.

22. The case of the petitioner is that all the time even after 1964 therespondent was a Government servant on deputation with the university and

: accordingly he was holding an office of profit and was disqualified. Therespondent's answer is two-fold. In the written-statement he takes theposition which I have already summarized, viz., that on attaining the ageof 55 in 1961 or 58 in 1964 he must be deemed to have retired fromGovernment service. No doubt, he continued working and drawing thepay and therefore he must be deemed to have been freshly appointed bythe university in exercise of the powers that have been mentioned in theagreement, and as such treated as a servant of the university at the relevantperiod and accordingly not disqualified. A further ground urged duringargument, though it has not been taken in the written-statement is that theletter written by Government in July 1964 stating expressly that it hadbeen "decided" to hand over the college permanently, we should assumethat on that date, namely, the 1st July, 1964 the. transfer had been effec'ed.The absence of the formal deed of transfer and the concurrence of theuniversity to the conditions and terms in it do not mi':e n.rv d'fT re"-"?because they were onlv matters of detail.

E -L .R. ] SHANTIBHAI v. MAHADEO 243

23. The second argument caa be disposed of briefly. No doubt;

from the very beginning Government has in a sense "decided to makeover the Maahav College permanently to the university; but it was wait-ing for two things; firstly, to,see hpw the university managed the institu-tion during the period of management transfer, and again to formulate-the terms and conditions.for the acceptance of the university. The mostthat can be said is that by July, 1964 the Government was satisfied onthe first score, but on the second the Government itself had not yetmade up its mind. It was still formulating the terms and conditions andonly after this was done, and after they were accepted by the universitywould the permanent transfer take effect. It is Just as if someoody had.agreed to sell immovable property and the document was under prepara-tion. But as long as the document was not ready and both parties hadnot accepted its terms and conditions there would be no transfer in theeyes of law. Accordingly, I would without hesitation hold that theuniversity continued to manage, the Madhav College on the originalscheme, namely, that a provisional taking over of the management withthe ownership continuing in the Government, and the staff including therespondent functioning on deputation being Governmet servants all thetime.

£4...The -argument about notional retirethent has iseen presented withan amount of elaboration quite out of proportion to the simplicity ofthe problem. We are not concerned with the fine points of the proprietyand formal correctness of the respondent's appointment under Govern-ment. What is necessary tcx make an office of profit is the. de factoholding of the post whether or not the .appointment orders' are, iii fullaccord with the, rules. An officer retires on attaining the prescribed agewhjch was 55 years upfo one point of time and then became 58, thedifference being immaterial for our purpose. But whether itis to 55 or 58, it was open to Government to continuetlje officer in service. No doubt he rules provide that thereshould be a formal order to that effect; but if the Governmentdoes allow the servant to function after the age of superannuation withouta formal order it is not possible for third parties to question it. Leastof ay can the, servant of Government who is continued on the appoint-ment after the age of superannuation without a formal written order ofJijs employer and draws his pay during the period', turn round and assertthat he was not in Government service. He had certainly been inGovernment service discharging the duties of the office and drawing hispay, land it is not; for him when faced by third party to assert that hisappointment was not regular. No doubt the regularity or otherwise ofthe appointment and the compliance or non-compliance with the rule?would be; very much to the point when there is a controversy between theemployer and the servant. In. fact the case law set out on behalf of thei-espondent such as State of Rajasthan v. Sripdl Jain, AIR 1963 SupremeCourt 1323; State of Assam V. Padma Rm AIRi 1965 Supreme Court473: and /. N. Saksenav. %hp State of Mo&vfa Pradesh, AIR 1967Su'oieme Goujjt 1264, all fejate; to disputes between the Government andits servants iareeard to the terHi and validity of the appointed aftersuperannuation. Certainly in such a situation the dispute being betwee*the employer and the employee, it is open to the one to assert that it

SHANTIBHAI V. MAHADEO LVOL. XXX11

had not passed the appropriate orders and the employee's situation wasprecarious, and the latter to retort enter that all the orders were proper,or that the employer was estopped having persuaded the ernpiovee 10render his services and given him a tacit promise. In all such cases theCourt would have to consider whether there had been a retirement byoperation of the service rules, and whether any extension orders " hadbeen passed by Government; and if they had been, the term for whichthey would be effective. This is exactly the trend of trie"-rulings men-tioned; but it is unnecessary for our purpose to set them out at anylength. Here we do not have any controversy between the Governmentand the employee, but one between the employee and a third party whoalleges that having continued at least de facto in the post after IHe dateof superannuation the employee should be found to have held an officeof profit.

25. The second feature here is that at no point did the lendingauthority, namely, Government, report t,j> the university that the respon-dent had been retired. Similarly, there- is also no order by the universityappointing the respondent to the post_of the professor of law in theMadhav College. No doubt, brides taking work out of The staff ondeputation, it was open to the university to make its own appointments;but the real question is whether any such appointment had been actuallymade;; it is the common ground that no such order had been passed bythe university in connection with the respondent. Quite, on the contrary,the university had been throughout treating the respondent as being ondeputation and even when it dispensed with his services, took care toReport to Government which it could not possibly have done if he hadbeen its own employee. It is difficult to see how we can have twonotional processes—one by which the respondent should be deemed tohave gone out of Government service, and another by which he shouldsimultaneously be deemed to have, been appointed by the university. Iwould, therefore, conclude that the respondent was in Governmentservice actually working in the Madhav College on deputation to theuniversity during the period of election and as such he was holding anoffice of profit.

26. There is one aspect of this matter oTwhich a passing mention wasmade during the argument,—where, we have a corporation or autonomousbody like the university, wholly dependant upon the Government for itsfinances, whether it can be argued that even a full-time servant of thatinstitution would be holding an office of profit under the Government thatfinances it. A position similar to this arose in the case, reported in GuruGovind Basu v. Sankari Prasad Ghosal AIR 1964 Supreme Court, 254.There the person concerned was an auditor in the Durgapur Project Ltd.,or the Hindustan Steels Ltd.,—an autonomous corporation owned however,by the Government of India. It was held that the auditor was holdingan office of profit under the Union Government it s. however,unnecessary for us to go into that question. For one thing, the partieshave not seriously taken this position and for another, I have foundabove that the respondent was still in the service of Government andwas only on deputation to the university; as such that question does not

- arise. • *'*

fl.L.K. 1 SHANIIBHAI V. MAHADEO 245

27. Thus, out of the three offices of profit alleged by the petitioner therespondent No. 1 Mahadeo Govmd Joshi—successful candidate—washolding at least two, namely, of a counsel under the Western RailwayAdministration which is a department of the Union Government, and oia college professor under the Government of Madhya Pradesh. Accord-ingly he was disqualified to contest the eiection and his election is, there-fore, void under Section 100 of the Representation of the People Act.

28. I have already given reason why it is not possible to declare -respon-dent No. 2 Hansaben Patel duly elected to this seat. The petition isallowed and the respondent—Shri M. G. Joshfs election is declared void.It is further directed that the rspondent—Joshi shall pay the petitioner•his actual costs, and pleader's fee of Rs. 100 (one hundred). The peti-tioner for his part will be entitled to withdraw his deposit.

Petition Allowed.

Today this election petition has been allowed and the election ofrespondent No. 1—Mahadeo Govind J^shi to the Ujjain North VidhanSabha Constituency has been declared void. He has petitioned for astay of the operation of the order under Section 116-B of the Represen-tation of the People Act. In my opinion one month's time should bemore than sufficient to enable him to go to the Supreme Court with hisappeal. Accordingly it is ordered that the operation of this judgmentis stayed till the 1st December 1967 or the filing of his appeal in theSupreme Court—whichever is earlier. On the happening of either even—whichever is earlier, the stay will automatically terminate arid theiud»ment of this Court would take effect.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

BABU LAL

v.SHIV SHARMA AND ORS.

(V. R. NEWASKAR J.)August 29, 1967

andOctober 25, 1967

Election Petition—Petition dismissed for default Power of Court torestore petition for sufficient cause—Date fixed for consideringquestion regarding joinder of parties whether a date of hearing •Rule (v) , Chapter 2, Madhya'Pradesh High Court Manual—whetherapplicable—Power of Deputy Registrar to fix date.

After the General Election held in February, 1967, the petitioner filedan election petition challenging the first respondent's election to the LokSabha. The pe.ition was filed in the High Court at Jabalpur, but wasdirected to be heard by the High Court Bench at Indore. On 17th. August,1967 the Deputy Registrar fixed 25th August, 1967 for deter-mining the question as ;o the propriety of impleading res-pondents 2 to 7. On 25th August, 1967 no one appeared on behalfof .he petitioner and the Court fixed 29th August, 1967 to hear Counselfor the respondent on the question whether the election petition could bedismissed for default. On 29th August, 1967. the Court following thedecision of the Madhya Pradesh High Court in Sunderlal v. NandramdasA.T.R. 1958 M.P. 260, dismissed the petition in default The 'petitionerthereupon filed an application for restoration of the. petition Dismissingthe application;

HELD:(i) The power to dismiss an election petition in dtfault up-

held in Sunderlal's case implies a corresponding power in the Court torestore such a petition if sufficient cause is shown by the petitioner forhis absence. The inherent power being the residuary power has to beexercised on consideration of the evidence adduced on behalf of thepetitioner for his absence, together with the entire circumstances of thecase including the diligence shown by the petitioner or otherwise inprosecuting the petition.

(ii) In the present case the petitioner's contention that he had nonotice that his case had been transferred from JabaTp'ur to Indore Benchcould not, on the evidence, be accepted. The entire conduct of the, peti-tioner showed that he had shown no care or diligence in prosecutiin? hiselection netition. There was no sufficient cause shown by the, petitionerjorV.s absence either on 25th August.' 1967 or 29th August, 1967.

246

E.L.R.J BABULAL v. SHIV SHARMA 247

(iii) The contention that 25th August, 1967 was fixed merely foreffecting amendment as per earlier order, and under Chapter 2 Rule(xv) of the Madhya Pradesh High Court Manual this could have beendone in the office of the Deputy Registrar, could not be accepted. Rule(xv) had no application in the, present context, as that rule empowers theRegistrar and not the Deputy Registrar to require any petition, applica-tion etc. to be amended in accordance with the procedure and practiceof the Court. In the present case the Registrar was not there and eventhe Deputy Registrar did not require the petitioner, in the, exercise of hisown 'power, to make any amendment of a petition, etc.

(iv) Nor could the contention be accepted that 25th, August, 1967and 29th August, 1967 were not dates fixed for hearing of the petition.In every proceeding with reference to an election petition which is fixedfor hearing either under the order of the Court or under the direction ofthe Deputy Registrar who is authorised to do it, it is not necessary tomention what would be done at such date. It-is not correct to say thatif this is not done the absence of the party would be immaterial.

(v) It was also not correct to say that 25th August, 1967, had beenfixed not by the Court but by an incompetent person, namely the DeputyRegistrar. He was fully competent under the Rule to fix the date.

Sunderlal v. Nandramdas AIR 1958 M.P. 260; Vishwanath v. MalkhanSingh AIR 1964 Allahabad 181; Maung Ahmin v. Maung Saung, AIR1938 Rangoon 360; Eukam Chand v. Mani Shibrat Dass, AIR 1934Lahore 984; Basanti Basi v. General Manager M.P. S.R. Tr. Corporation,1965 M:P: Law Journal Short Note No. 58; Ram Nath v. Paul Singh1959 Punjab 257.

Election Petition No. 23 of 1967.

Miscellaneous Civil Case No. 1 of 1967(E.P.). (October 25, 1967)Shri Bhachawat and Y. I. Mehta for the applicant. Shri R. K. Vijayavargiyafor flie respondent.

NEWASKAR J.—This is an application for restorationi of an election peti-tion which was dismissed for default for failure of the petitioner to appear ontwo successive dates of hearing namely 25th August, 1967 and 29thAugust, 1967. The order for dismissal was passed on 29th August, 1967after hearing arguments addressed to me on behalf of the respondent. Ihad my doubts about the propriety of dismissing an election petition fordefault. Therefore on 25th August, 1967 Mr. Vijayvargiya counsel for therespondent was told to be ready on 29th August, 1967 to argue the pointas to whether such a petition can be dismissed for default. On 29th August,1967 Mr. Vijayavargiya argued that point and relied upon the decision ofthe Division Bench of this Court reported in A.I.R. 1958 Madhya Pradesh260 Sunderlal v. Nandramdas, which took the view that the election Tri-bunal dealing with the election petition under the Representation of thePeople Act, 1951, has inherent t>ower to dismiss such a petition for default-I assumed therefore that the High Court too like wise has such power onthe reasoning in that case. Since there is such a power to dismiss anelection petition for default as held in that case, a corresponding power to

1 E.C.—17

248 BABULAL V. SHIV SHARMA [VOL. XXXII

restore such a petition', if sufficient, is shown, by the petitioner for his absenceshould be taken to Vest in tils Court. The inherent power, being theresiduary power, has to be exercised Oft consideration of the evidenceadduced on behalf of the petitioner for his absence together with the entirecircumstances of the case including the diligence shown by the petitioneror otherwise in prosecuting the petition.

The petitioner in this petition for restoration alleged that he had filedthis election petition in the HlgfrCourt at Jabalpur which was directed tobe heard in the High Court Benclr at Indore but that he had received nointimation about suchtrarisTer from the High Court at Jabalpur and thatthe petitioner consequently ha3Tro knowledge about any dates fixed in thiscase. According to the petitioner he had appointed Mr. Paonikar as hiscounsel to conduct"ffifs election~petitldh. Mr. Paonikar returned the papersof the case to the petitioner and he tried to contact him but could not seehim personally. He then went to Indore, engaged Mr. Mehta as his counseland inspected the record of the case in the High Court at Indore. He thencame to know that the petition had been dismissed for default on 29thAugust, 1967. The petitioner says that he had no knowledge about thedate 29th August, 1967 as the date in the case nor of any date of hearingfixed at Indore. He therefore did not appear on that day. Mr. Paonikaralso did not appear as he had returned the papers to the petitioner earlier.The petitioner sought restoration firstly on the ground that the petition hadnot been fixed for hearing on 29th August, 1967 and further that at anyrate there was sufficient cauls© for his absence on 29th August, 1967 ashe had no knowledge about the case being heard by the High Court atIndore. An affidavit in support of these allegations wa's filed by the peti-tioner.

The respondent opposed the petition denying that the petitioner hadno notice about the petition beteg heard by the High Court Bench at Indore.The petitioner's counsel Mr. Paonikar had appeared at Indore on severaldates of hearing arid consequently it could not be contended by the Peti-tioner that he had no notice about the hearing of the case at Indore.Neither the petitioner nor his counsel Mr. Pepnikar appeared on an earlierdate i.e. 25th August, 1967 as well when the CSurTneard argument on thequestion of propriety of joining respondents No. 2 to 7 when these res-pondents had no concern with the parliamentary constituency of Vidisha.

As to the contention that 29th August, IWI was not the date fixed forhearing it is said by the respondent that every date fixed in the electionpetition is a date fixed for hearing arid it was so mentioned in the cause-listof that date. It is also contended by the respondent that the petitioner tookno interest in the progress of the case throughout and appeared to be fight-ing some one else's battle. Existence of sufficient cause for the absenceof the petitioner both on 25fh August, 1967 and 29th August, 1967 wasdenied.

As to the competency of a petition for restoration of an election petitiondismissed for defuaTt it is already'held above that such a petition is com-petent.

First question to be considered in view of the submissions is whether.there was sufficient cause for the absence of the petitioner on 25th August,1967 and 29th Augut, 1967 ?

E.L.R.] BABULAL V. SHIV SHARMA 249

As to this the petitioner's contention is thai he had presented the petitioninjhe High Court at Jabalpur and had engaged Mr. Paonikar as his counsel.He l a d received no intimation either" from the High Court at Jabalpur orfrom Mr. Paonikar about the order of the High Court to the effect that thepetition would be heard at Indore. He had therefore no knowledge eitherof the dates of hearing fixed at Indore or what took place on those dates.

In my opinion this contention of the petitioner is without substance.Mr. Paonikar did appear for the petitioner on 20th April, 1967 when thecase was first put up for hearing in the High Court at Jabalpur whichpassed the order that the petition would thereafter be heard in the HighCourt Bench at Indore. Notice to the counsel is notice to the party. Thepetitioner, therefore, has to be assumed to have notice of the fact that thepetition would be heard in the High Court at Indore.

After the case was taken up for hearing at Indore an amendmentpetition was filed on behalf of the petitioner, which was heard on 17th July,1967, Mr. Paonikar appeared for the petitioner. On the next date i.e. 27thJuly, 1967 written statement to the main election petition was filed onbehalf of the respondent No. 1. The case then *ras fixed for 3rd August,1967, on which date the petition for amendment filed on behalf of the peti-tioner was allowed and the petitioner was directed to make necessaryamendments as per order of the Court allowing the same onor before 8th August, 1967. On this date i.e., on 8th August, 1967Mr. Paonikar was present. There was no compliance with the directionof the Court to make the amendment. It was ordered on that date thatargument, would be heard on 17th August, 1967 upon thequestion whether joinder of respondent No. 2 to 7 was justified. Hewas further required to comply with the earlier order. Arguments werethen heard on 25th August, 1967 as the Judge was on leave on 17th August,1967 and the case was directed to be adjourned to 25th August 1967tf58er The orders of the Deputy Registrar dated 17th August 1967. Onthat date neither Mr. Paonikar nor the petitioner were present. Argu-ments on behalf of the respondents were heard and order was dictatedon Board holding that joinder of respondents No. 2 to 7 was improperand that those respondents should be struck off the record. The casewas fixed for carrying out necessary amendments as per this and earlierorder. I had my doubts as to whether an election petition could bedismissed for default. Therefore the counsel for the respondent was toldon 25th August 1967 to be ready with that question on 29th August 1967.On this date also neither the petitioner nor his counsel were present.Arguments of the counsel for the "respondents were heard who reliedupon the Division Bench decision of this Court reported in A.I.R. 1958Madhya Pradesh 260 (supra) that such a petition could be dismissed fordefault. This Court considered the question and passed an order dis-missing the petition for default.

It is thus plain from these proceedings that the counsel who heldVakalatnama signed by the petitioner did participate in the proceed-ings at Indore upto 8thj^ugust 1967. The petitioner therefore cannotcontend that he had no nbtice~6fTne case being heard in the High CourtBench at Indore. According to the statement of the petitioner in Courtas also according to his affidavit he came to know that the hearing of?his election petition was going on at Indore when Mr. Paonikar returnedkas papers under a registered envelope either by 17th or 19th, of August,,J967. He then went to Bhopal about 4 or 5 days Jater to see Mf,

35° BABULAL V. SHTV SHARMA [VOL. XXXI8

Paonikar who used to stay in the Circuit-house at Bhopal. He did notmeet him there. So he returned home and after a fortnight went toIndore to enquire about the case. According to him right from 10th or11th of April 1967 when he had gone to Jabalpur to file the electionpetition upto the time he received the registered envelope on the 17th or19th August 1967 he had^no occasion to contact Mr. Paonikar. Sub-sequent to the last mentioned^dateUe had not seen him. He had written;two letters to Mr. Paonikar in the month of June 1967 with an intervalof a fortnight on his address at Magpur but those letters remained un-replied. He thereupon felt anxious about the_x;ase. He suggested thatMr. Paonikar had agreed to settle the account of his fees at any timehe would meet the petitioner. The petitioner admitted that even onreceipt of the envelope containing the file of his case he did not feel itnecessary to see Mr. Paonikar, settle his fees and secure his presencein the case. It is thus plain that the petitioneT did not care about thecase at all after submitting his election petition at Jabalpur until he cameto Indore subsequent to the dismissal of the petition and saw Mr. Mehtabefore 15th September 1967 by which date the petition for restorationwas submitted. The entire conduct of the petitioner shows that he hadshown no care or diligence in prosecuting his election petition. Rightfrom the date when he submitted his election petition he had hardly anyreal contact with the counsel he is supposed to have engaged. He meetsMr. Paonikar, a lawyer of Nagpur, at Jabalpur. According to him heengaged him on daily fees. In such a case^it is highly improbable thathe would have no contact at all with Mr. Paonikar during the entirecourse of hearing of the case at Indore or even later on until the time hesubmitted a petition for restoration. His conduct reveals atleast wantof care and diligence, if not something else as suggested by the counselfor the opponent namely that sofneTjody else" was really fighting throughhim. According to him when two of his letters sent by Jrim on his (Mr.Paonikar's) Nagpur address remained unreplied he felt anxious abouthis petition. It is curious a3d~n3f easily believeable that even then bedid not consider it necessary to go to Nagpur to see Mr. Paonikar whosehome-address he knew. He also did not take particular care to send hisfees, which according to him, were fixed on daily basis. Further whenPaonikar sent back his papers in a registered envelope he tried to see himat the Circuit House at Bhopal and when he did not meeif himthere he returned home and remained there for about a fortnight. Thisconfirms the view taken by me earlier that the petitioner's conductthroughout showed want of care and diligence. When the case was fixedfirst on 8th August 1967 Mr. Paonikar. counsel engaged by the peti-tioner, was present and in his presence the case was fixed for hearingon 17th August 1967 and then on 25th August^l967. Of those dates;the petitioner's counsel will be deemed to Tiave notice of the hearing.The petitioner consequently "wuT be deemed to have notice. It is noteasy to accept the petitioner's statement that although Mr. Paonikarreturned his papers without any "covering letter yet he beBeved that he-would attend his case. I am, therefore, of the view that these was no-sufficient cause shown by the petitioner for his absence either on 25thiAugust 1967 or 29th August 1967.

The second point raisedl on behalf of the petitioner is that neither25th August 1967 nor 29th August 1967 was a date fixed for hearing.It was a date merely for effecting amendment as per earlier order and

6.L.R.] BABULAL V. SHIV SHARMA 251

under Chapter 2 Rule (xv) of the Madbya Pradesh High Court Manualthis could have been done in the office of the Deputy Registrar.

In the first place it is not correct to say that the case was not fixedfor hearing on 25th August, 1967 and 29th August, 1967. In the secondplace Rule (xv) has no application in the present context as firstly thatRule empowers the Registrar and not the Deputy Registrar to require anypetition, application etc., to be amended in accordance with the procedureand practice of the Court. In the present "case the Registrar was notthere and even the Deputy Registrar did not require the petitioner inexercise of his own power to make any amendment of a petition etc.

The third contention is that the case was not fixed for hearing. Onlything that was to be done was to make amendment. This, as alreadyobserved, is not correct. If either Mr. Paonikar or the petitioner hadbeen present they would have been heard and further orders in the pro-ceedings would have been passed. It is not correct to say that no hearingwas to take place. In every proceeding with reference to an electionpetition which is fixed for hearing either under the order of the Court orunder the direction of the Deputy Registrar, who is authorised to do so,it is not necessary to mention what jyould be done on such a date. It isnot correct to say that if this is not^mentioned absence of the party wouldbe immaterial. He need not assume that nothing further would be done.On the other hand he must assume that the Election Petition, which bythe law is required to be tried expeditiously, would be proceeded withfurther if what is required to be done by a party is complied with. It isconsequently not correct to say that the case was not intended to be pro-ceeded with further but had been fixed merely for ministerial purpose. Itis also not correct to say that 25th August, 1967 was fixed not by theCourt but by an incompetent person namely the Deputy Registrar. Heis fully competent under the Rules to fix the cases. The decisions inA.I.R. 1938 Rangoon 360 Maung Ahmin v. Maung Saung, A.I.R. 1934Lahore 984 Hukam Chand v. Mani Shihrat Dass, 1965 Madhya PradeshLaw Journal Short Note No. 58 Ba^anti Bai v. General Manager M.P.S. R. Tr. Corporation, and 1959 Punjab 257 Ram Nath V. Paul Sing,upon which the petitioner relies have no application. As regards A.I.R.1938 Rangoon 360 (Supra) it is held there that if the case is fixed merelyfor paying process for the witnesses to be summoned or for filing list ofwitnesses ought not to be dismissed for default.

In this case the case was being taken from time to time on the datefixed for trial of the Election petition with a view to take further proceed-ings. Moreover in this case the petitioner had chosen not to appear atall on any earlier date of hearing. Counsel must also have returnedpapers to the petitioner because of the petitioner's neglect.

In the Lahore case A.I.R. 1934 Lahore 984 (supra) the case wasfixed for hearing by a clerk who had no right to do so. Such is not thecase here.

In A.I.R. 1959 Punjab 257 (supra) it is held that where an adjourn-ment was obtained for amending an election petition and the Court per-mitted the amendment on payment of costs failure to amend or to paycosts did not justify the order dismissing the petition under Order 17Rule 3 C.P.C.

2 5 2 BABULAL V. SKIV SHARMA [VOL. XXXII

I am, therefore, of the view that the petitioner had full knowledge ofthe petition having been fixed for hearing on 25th August 1967 and 29thAugust 1967. He remained absent. His counsel too was absent. Thecase consequently cannot be restored pursuant to our power under Section151 C.P.C. as there was 5b sufficient cause for his absence on thosedates.

The petition for restoration of the Election Petition is consequentlyuntenable. It is dismissed with costs. Counsel's fee shall be fixed atRs. 50/ •.

Petition Dismissed.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABADVASIREDDY JAGANNATHAM NAIDU

V.

VANGAPANDU NARAYANA *AEPALA NAJDU & ANOTHER

(KUMARAVYA, JT.)

October 31, 1967Representation of the People Acf, 1951, SS. 77, 80, 804, 81, 100(1)(6),

100(1) (d) (iv), (in), 123(1) (/I) (&), 123(5), (6)—Conduct ofElections Rules, 1961—^-Allegations of tampering with ballot boxes—Requirements of law before opening the boxes for counting—corruptpractices—onus of prOof~-~Retum of election expenses—Irregularityin maintaining election accounts—whether contravention of Section123(6)—Election return—ingredients of.

The Petitioner, a voter in the constituency, challenged the election ofthe First Respondent to the State Assembly alleging inter alia that theballot boxes were not 'properly secured and sealed, jhat there was tam-pering with ballot boxes, improper reception of yptes, impersonation ofvoters in favour of the Firsf Respondent and that several votes cast jnfavour of the Second Respondent were improperly refused or rejected.The Petitioner further alleged that the first Respondent fiojptakted corrujptpractices and that his return of election expenses did not reflect thetrue state of expenditure. The Petitioner also urged for a recount ofballot papers and for the Second Respondent to be declared as dulyelected.

HELD: Dismissing the Petition.

On the evidence, the election of the First Respondent must be upheldas valid and the petition dismissed,

(i) Under the provisions of the Act and the Rules and directionsissued by the Election Commission it was the duty both of the partiesand the Returning Officer, before any ballot box was opened for counting,to notice with scrupulous care fha.t there were no external traces raisingsuspicion that the contends of tile ballot boxes had been meddled with.If any candidate or his counting agent raises any objection in respect ofthe outer seals, that they are either damaged or lost, if the inner seal isfound intact, the objection cannot prevail and the counting shall beproceeded with. Any discrepancy between the earliest information of thethe Returning Officer to the Collector as lo the number of votes polledand the later information given on the basis of actual counting, cannotraise any inference of tampering of ballot boxes.

(ii) There is always a presumption that the rules have been dulyfollowed in regard to counting of vofes by the Returning Officer, unlessparticular instanes of non-compliance are specifically pointed out If the

2 5 4 V. J . NAIDU V. V. N. NAIDU IVOL. XXXII

petitioner fails to give any material facts or details with regard to thealleged improper rejection or acceptance of votes by the Returning Officer,merely on the basis of vague allegations, the petitioner is not entitled toa recount.

(iii) Evidence in support of corrupt practice of bribery must ofnecessity satisfy that test which is applied to the proof of criminal charges.In the case of evidence to prove a charge of bribery by a witness whois himself involved in the offence, his position is in no way better thanthat of an accomplice; unless there is corroboration, it is difficult to accepthis testimony. Proof of bribery to unseat a candidate must be, clear andcogent, and should admit of no reasonable doubt. Such proof cannot beafforded by the tainted testimony of a witness. The onus lies heavilyon the petitioner who brings the charge of 'bribery to establish it by clearand cogent evidence beyond all reasonable daubt. This onus nevershifts. The fact that certain witnesses were named by the Respondent butwere not examined, cannot reduce the burden of the. Petitioner to thecharge.

Londonderry case, (1869) IO'M & H. 274 (278); AhmedmiyaSherianiya v. Chippq Ibrahim NuTatf, (1959). 17 E.L.R. 218; D. Murali-dhar Reddy v: Paga Pulla Reddy, (1964) 2 An. W.R. 242: A.I.R. 1964A.P. 530; Jayalakshmi Devamma v. Janardhan Reddy, 17, E.L.R. 302;Chadalavada Subba Rao v. Kasu Brahmananda Reddy, (1966) 2 An.W.R. 401, Harish Chandra Bajpai v. Triloki Singh, 12 E.L.R. 461,referred to.

(iv) It is manifest that a corrupt practice within the meaning ofSection 123(6) consists in the act of incurring or authorising the expen-diture in contravention of Sec. 77. The act of maintenance of accountsor keeping full particulars thereof, is certainly an act distinct from theact of incurring or authorising expenditure, and hence is not within theambit of sub-clause (6) of Section 123 and it does not therefore constitutea corrupt practice within the meaning of the Representation of the PeopleAct.

In computing the table of expenditure, free services given to a candi-date by others cannot be included. Notional estimate of the expenses for1

finding out whether the total expenditure had exceeded the maximumlimit prescribed is not permissible in law. A candidate is not bound toaccount for the cost of the jeep or its reasonable hire or repairs nor is hebound to account for the salary and batta paid to the driver, when hedid not incur that expense at all and when it is clear that it was gratutiousoffer of both the driver and the jeep. In the circumstances the questionof damages or depreciation cannot arise so that it may be urged that adefinite amount ought to have been included in the return of electionexpenses.

Ghavar AV Khan V. Keshav Gunta, A.I.R. 1959 All. 264: Shenvat<?moh V JJnrish Chandra. A T/R. 19SR RawstTian 324: C. R. NaranmhanV M G Ntfpsa Chpttinr. ATR. 1Q<>9 Mad: 514; Muthiah Chettiar V:Ga«e.«i« A I R I 9 6 0 Mad. 85; Vasantha Pai V . SHmvasem. A.T.P.;

-E.L.R.] V. J . NA1DU V. V. N NAIDU 255

1962 Mad. 239; Rananjaya Singh V. Baijnath Singh, A.I.R. 1954 S. C :749, referred to:

Election Petition No. 12 of 1967.T. Anantha Babu and N. V. V. Krishna Rao for the Petitioner.

JRamachandra Rao, A. Venkatarami Reddi and E. Manohar for the FirstRespondent.

JUDGMENTKUMARAYYA J.—The petitioner Vasireddy Jagandham Naidu, calls in

question the election of Sri Vangapandu Narayana Appala Naidu (FirstRespondent) and seeks for a declaration that his election from Pedama-napuram Assembly Constituency is void and a further declaration, which,is requested, may be made accord with the rules. An officer retireson attaining the prescribed age which was 55 years upto one point of timeand then became 58, the difference being immaterial for our purpose.But whether is to 55 or 58, ft questions the election of SriVangapandu Narayana Appala Naidu' (1st Respondent and seeksfor a declaration that his election from Pedamanapuram AssemblyConstituency is void and a further declaration, which it is requested, maybe made after recount of votes, if it be so deemed necessary that his brotherSri Vasireddi Krishnamurthi Naidu 2nd Respondent) is the duly electedcandidate.

The petitioner is a voter in Pedamanapuram Assembly Constituency.In the recent general elections held in February, 1967, for return of a-candidate to the Andhra Pradesh Assembly from that Constituency, therespondents happen to be the only two contesting candidates. The contestwas sufficiently keen. The 2nd respondent was the Congress nomineehaving 'bullocks with yoke' as his election symbol. The 1st respondentwas an independent candidate with 'flower' as his symbol. Of the totalvotes polled in that Constituency, which were 57, 924 in all, as manyas 27,725 were polled by the 1st respondent, and 26,668 by the 2ndrespondent. The gap between the two thus was of 1057 votes. At thetime of counting as many as 3531 votes were rejected as invalid on oneground or the other. The 1st respondent having secured a large numberof votes, was declared elected on 23rd February, 1967. The unsuccessfulcandidate did not choose t0 file an election petition. Instead, his brother,as a voter from the Constituency, has filed the present petition.

The grounds on which he sought for the above relief? are manifoldcoming under Section 100(1)(b) read with Sec. 123(1) (A) (b), 123(5)and (6) and Sec. 100(1) (d) (iii) and (iv), of the Representation of thePeople Act, 1951. Of course, not all the grounds raised are sought to"be established by the petitioner. As the issues framed cover all thegrounds, I need set out all the material facts which the petitioner hasrelied on in his petition for the reliefs claimed. One of the chargesr>rou£rht by the petitioner is that there has been non-corrroliance with theprovisions of the Reoresentatton of Peoole Art and the rules and ordersmade thereunder, which has materially affected the result of the electionbrin^ns the case within the amWf of Section 100(1)(d) (iv) and (w) ofthe 'Representation of the People Act.

Tt is sa'd that immediately afret the T>o11 on 1Rth Fehniarv. 10«7 theboxes were stored in a godowrt in trte premises of the Taiulr Office,

V. J . NA1DU V. V. N. NAIDU [VOL. XXXU

Salur. In the same godown, though in another room, ballot boxes relat-ing to Salur Assembly Constituency were kept with seals on all the doors.The yotjes relating to Sjalur Constituency were counted on 22nd Fbruary,1967. On the next day, when the mam door was opened, it was foundthat the door leading to the room in which the ballot boxes relating toPedamanapuram Constituency were kept was open. It was discoveredfurther that the seals on some of the boxes were not in order. On onebox there was no seal bearing the signature of the Presiding Officer or theagents. This, indeed, was a grave matter suggesting that not only duecare was not bestowed on so important a matter, but also the rulesi pro-viding for the safe custody of the ballot boxes and papers were substan-tially contravened giving foom and oeeasion fer tampering. This omis-sion, whether deliberate or accidental had, according to the petitioner, itsfar-reaching effect for what transpired thereafter makes the petitionerbelieve that the ballot papers were tampered with. The petitioner saysthat whereas immediately after the polling the Returning Officer gave a tele-gram to the Collector stating that 65 per cent votes were polled, which mustmean only 51,402 votes, and the petitioner himself was told by the sameReturning Officer on the night of 22nd February, 1967, that about 50,000votes had been polled, the actual count of Votes showed a poll of 57,924.Thus there is a huge discrepancy of about 6,500 votes, which, it issuggested having regard to the condition of the ballot boxes and llhe doorleading to the room, must be the result of tampering. The result ofelection, it is contended, has, therefore, been materially affected.

The petitioner further contends that there has been improper receptionof a considerable number of votes;; that several dead persons in variousvillages were impersonated; and that the 1st respondent caused alsopersons to impersonate Kanumuri Satyanarayan Raju, Kanumuri KrishnaThimma Raju and Kanumuri Appala Raju of Vangara Village andexercise their franchise even though they were actually at other placeson the day of polling. It is also alleged that several votes cast for the2nd respondent were improperly refused or rejected. The petitioneravers that if all the votes cast were properly scrutinised and the invalidand improperly procured votes were excluded, the 2nd respondent wouldbe found to have polledi the! majority of votes. He, therefore, requeststhat recount be ordered in the interests of justice and the 2nd respondentbe declared elected as a result.

That apart, his fu/ther contention is that but for the votes obtainedby the returned candidate by corrupt practices, the 2nd respondent wouldhave secured the majority of valid votes. These corrupt practices comingunder Section 123(1)(A)(b), Section 123(5) and (6), have been setout in Paras 8 to 10 of the petition, which need not be elaborately statedhere. Suffice it to say for the present that according to the petitioner, asalleged in Para 8, the 1st Respondent and his polling agents and otherswith his knowledge, consent and active connivance, gave bribes to as manyas 896 voters named in Annexure I and procured votes from them; thatthe 1st respondent, as alleged in Para 9, got the voters conveyed free ofcharge to the, various polling booths m the vehicles as detailed in annexureII; and that what is more, he had contravened the provisions of Sec. 77of the Representation of the People Act and filed a return of election ex-penses whkh docs not reflect the true state of expenditure incuited, for

fi-L.R.J V. J . NAIDU V. V,. N NAIDU 2$-p

as per the details given in sub-paras (a) to (k) of para 10 of thepetition, the expenses incurred by the 1st Respondent far exceeded theprescribed maximum limit and thus he was guilty of a corrupt practiceenvisaged by Sec. 123(6) of the Representation of the People Act.

lhe 1st Respondent denied all allegations, whether of non-compliancewith the provisions of the Representation of the People Act, rules or orders-made thereunder, or of corrupt practices imputed to him or to his agents.His contention is that on 23rd February, 1967, the outer doors of theroom, where the ballot boxes were secured, were found locked and sealed,and the door inside leading to the room in which the ballot boxes relating,to Pedamanapuram Constituency were kept, was locked but not sealed.It was not sealed as it had a catch on the inner side and the other outerdoor was locked and sealed. When the Returning Officer explained theposition, the parties were satisfied and counting was proceeded withwithout the least objection. The. respondent contends that it is not truethat the door was open. It is not also true that the seals of any of theboxes were not in order. Only in relation to one box the outer seal was.missing but the inner seal with the paper bearing the signature of thePresiding Officer was found correct and both the parties were then satisfiedand asked that the ballot papers might be counted. No objection wasraised alleging tampering at any stage. It is further denied that therewas any impersonation or any irregularities committed in the counting ofvotes so that the petitioner may ctefen recount. No recount was claimed•before the declaration of result, nor are there any justifiable grounds forrecount. He denied further all the allegations of corrupt practice. Hecontended that most of the allegations made in this behalf in the petitionare grossly vague and that they should be ignored and struck off on thatvery basis. He further raised a technical objection with regard to theverification of the petition etc:

The 2nd Respondent remained ex,-j>arte.

On the pleading, the following issues were settled:

1. Whether there has been non-compliance •with the provisions ofS. 83(c) of the Representation of die People Act, 1951, as alleged iaPara 2 of the written statement and the petition is therefore liable to bedismissed?

2. Whether the ballot boxes of Padamanapuram Constituency weretampered with as alleged bv the petitioner in Para 5 of the petition. If so,whether the election is liable to be set aside under Sec. 100(1) (d) (iv)?

3. Whether there were irregularities or illegalities committed in thecounting of votes and certain votes were improperly received or refusedand the eWion therefore is liable to be set aside under Section 100(1) (d)(ill)?

4. Whether the 1st respondent caused persons to impersonate•Katnimuri Satyanaravana Raju, Kaattsrari Krishna Thimma Raju an#KaniiTmri Appala Rani?

5. Whether several dead persons were impersonated as alleged io-6 of the petition?

V. J . NAIDU V. V. N. NAJDU {.VOL. XXXH

6. Whether in the facts and circumstances of the case the petitioner isentitled to an order of recounting of votes?

7. Whether the 1st Respondent and with his knowledge, consent andactive connivance, his polling agents and others, bribed the voters induc-ing them to vote for the 1st respondent as detailed in Para 8, read withschedule I?

8. Whether the 1st respondent has committed any corrupt practice ofcarrying voters free of charge to the, polling booths as alleged in paragraph9 of the petition, read with Schedule II?

9. Whether but for the votes obtained by the 1st respondent by corruptpractice, the 2nd respondent could have obtained majority of valid votes?

10. Whether the statement of accounts of election expenditure filedby the 1st respondent is not a true and correct account and whether hehad incurred expenditure in contravention of S. 77 of the Representationof the People Act as alleged by the petitioner in paragraph 10 of theElection Petition?

11. Whether the averments in clauses (a), (b), (c), (d), (e), (f),(g)» (h), (i), (j), and (k) of paragraph 10 of the election petition aretrue? If so, whether the election is liable to be set aside for violation ofSec. 77?

12. Whether the result of the, election, for any of the reasons men-tioned in Paragraphs 5 to 10 of the election petition, is materiallyaffected and the election of the 1st respondent is liable to be set aside OHthat account?

13. Whether the 2nd Respondent is entitled to declaration that he isduly elected in the Election?

Issues No. 2 and 3 relate to the alleged defaults on the part of theelection staff. Issue No. 1 relates to the defect in verification by thepetitioner. Issues 4, 5, 7, 8, 10 and part of 11, pertain to the corruptpractices alleged against the 1st respondent, and the remaining issues aremerely consequential. The defect referred to in Issue,(1)'being a curableirregularity by its very nature that has been removed by an amendmentallowed at the instance of the 1st respondent and hence, that issue nolonger arises for consideration. As regards the other issues, it is plainthat in his affidavit he did not say that he had personal knowledge. Theonly the testimony of 26 witnesses in all has been actually brought onrecord, no attempt has been made to substantiate some of those issues.This has been conceded at the time of argument by Mr. Ananta Babu,learned counsel for the petitioner. He has admitted that there is totallack of evidence with regard to issue (4) and the proof of issues 5 and8 was made to depend upon the uncorroborated testimony of the peti-tioner as P.W. 21. He also admitted that the evidence in relation toissue (5) is based on heresay and in no; sense of the term on personalknowledge. Even with regard to issue No. 8 his personal knowledge issaid to be confined to one station where he says the 1st respondent con-

£ -L -R - l V. J . NAIDU V. V. N NAIDU 2 5 9

veyed voters from Komatipalli to Maradam village in. the tractor belong-ing to T. V. Jaganadha Raju abas Buchi Raju, President of Datti RajeruViUage. R.W. 21 as against this says that he does not own any tractorthat his cousin owns one and that tractor belonging to his cousin T. V.Jaganadha Raju has no trailer, that it was not given to the 1st respondentnor could it be possibly given to him as it was out of order for that lastone year and its stoppage report was accepted by the Regional TransportOfficer and payment of tax thereon was exempted. While the petitioneron oa^h has said that he saw the voters being taken by the Election agentin a vehicle (i.e.) a tractor with a trailer, he cannot give out the namesof the voters, nor the number of such voters. He" admits in his evidencethat in his affidavit he did not sav that he had personal knowledge. The1st respondent and his election agent as R.W. 1 and R.W. 21 have cate-gorically denied that on the polling day any voters were carried in anyvehicle by them. Thus the uncorroborated testimony of the petitioner inthat behalf stands fully rebutted by the said witness. Issue No. (8) thusstands disproved. Issue No. 4, 5 and 8 being thus held against thepetitioner, the only issues which survive for consideration are issues, 2,3, 6, 7 and 9 to 13. Issues 7 and 9 go together so also issues 10 and11, and issues 12 and 13 are merely consequential.

First I take up issues 2 and 3, which may not detain me long. Thereis paucity of evidence in relation to these issues, and here again thepetitioner has to depend largely on his own testimony. Issue No. 2 isconcerned with non-compliance with rules or orders under the Represen-tation of the People Act which it is said has materially affected the, resultof the election. The question is: was there any contravention of therules or orders relating to safe custody of the ballot boxes which has given,occasion to and has resulted in tampering with the ballot papers?Section 58 in Chapter IV of the Representation of the People Act saysthat if at any election any ballot box is accidentally or intentionally des-troyed or lost or is damaged or tampered with to such an extent that theresult of the poll at that polling station or place cannot be ascertained,the Returning Officer shall forthwith report the matter to the ElectionCommission and the Election Commission shall thereupon after takingall material circumstances into account, act in the manner provided insub-clause (2) into account, act in the manner provided in sub-clause(2) of Sec. 58 (/.«.), it may, if necessary, declare the poll at that pollingstation void and forthwith fix date and place of fresh poll or give otherdirections. Section 64 in Chapter V also makes a 'provision to the likeeffect in this regard. Rule 55 of the Conduct of Election Rules, 1961,.further says that before any ballot box is opened at a counting table the-counting agents present at that table shall be allowed to inspect the paperseal or such other seal as might have been affixed thereon and satisfy them-selves that it is intact. It also says that the Returning Officer shall1

satisfy himself that none of the ballot boxes has in fact been tampered'with. It is thus the duty both of the parties and the Returning Officerto notice with scrupulous care that there are no traces raisins; suspicionthat the contents of the boxes have been meddled with. If the Return-ing Officer is satisfied that any of the ballot boxes has in fact been tam-ptered with, he shall not count the ballot papers contained in tha* boxand snail follow the procedure laid down in Section 58 in respect of that

V. J . NAIDU v. V. N. NAIPU LvOi,. &XX1I

polling station, so that the .fciecuon Commission having regard to all thematerial circumstances, may decide as to the necessity of a fresh poll orotherwise, or give suitable directions. While the statute thus attachessignificance to tiie external signs, it also casts duty on the ReturningOfficer to toe satisfied about tampering, and the nature and extentthereof. The reason is obvious. It is possible that the external seals bedisturbed, damaged ox even lost in transit owing to various circumstances,• viz., poor conditions of roads, the unsatisfactory means of conveyance,or lack of adequate care in handling the boxes at either station or similarother grounds. This may in effect be of little consequence. What the-statute stresses on is the satisfaction as to actual tampering its seriousnature and wide extent. Both sections 58 and 64-A of the Representa-tion of the People Act refer, therefore, to the fact that damage and tam-pering should be of such an extent that the result of the poll at thatpolling station cannot be ascertained. The Returning Officer in thatevent alone is charged with duty to report to the Election Commission.The meaning of these provisions is sought to be brought home to theReturning Officer by means of directions as well in the, 'Handbook forReturning Officers' prepared by the Election Commission for theirguidance for General Elections of 1967. In Chapter VII, Para (5)therein, it is stated that the Election Commission is competent to declarethe poll at a polling station to void after considering the materialcircumstances on the. report of the Returning Officer made in accordancewith Sec. 58(1) of the Representation of the People Act. To ensurethat due care is invariably taken by the staff Circular No. (1) of theGovernment of Andhra Pradesh (Election Department) in Para VI(1)tcj has provided that the polling staff should be given adequate traininginter alia oil points of checking a ballot box; probable defects and theremedy therefore so as to allow no scope for tampering, insertion into,

•or extraction of ballot papers f< m the ballot box without leaving obvioussigns of tampering. With all these precautions sometimes seals of theballot boxes may be disturbed or damaged or lost during transit or other-wise. Therefore the Rules have provided that thfe parties must see andthe Returning Officer must be satisfied that these external signs do notraise any inference of substantial tampering.

What exactly is the situation in the present case? What all isalleged in the petition is that on 23rd February, 1967 when the maindoor was opened, it was found that the door leading to the room inwhich the ballot boxes in question were kept, was open. It may benoticed this did not conjure u'p1 any misgiving for the second respondent.Neither he nor the petitioner had invited the attention of the Returning

•Officer in this regard. Nor did they then raise the protest on seeing the•condition of the seals on the boxes. Nevertheless, it is now alleged that

the seals on some of the boxes were not in order and on one box therewas no seal at all bearing the signature of the Presiding Officer. If thiswas true, there is no reason why the petitioner as the counting agent andthe 2nd respondent as the candidate himself, did not invite the attentionof the Returning Officer, or raise an objection. The petitioner saysthat the election agent of the 1st respondent had pointed out the defectby means of formal application. Be that what it may, if the petitionerdr the 2nd respondent had reallv entertained anv doubt of tamnerine;-they would not then have maintained silence. According to the peti-

-E.L.R.J V. J . NA1DU V..V. N NA1DU 261

tioiier'is narrative he 'seems to hav,e entertained doubt only subse-quently by reason of what according to Mm nad transpired later.His case is that whereas according to the information given earlier,immediately after the poll was over, the total votes could be only 50,000or 51,402, on actual counting they were found to be 5J,924. This dis-crepancy according to him must be, the consequence of tampering withthe boxes and, insertion of fresh papers therein. This assertion of thepetitioner does not appear to be well-founded, nor the circumstancesrelied on by him are substantiated. In fact, there is considerable disparitybetween the case, pleaded and that sought to be proved by him. Ifinference of tampering has to be drawn at all, that could be done onlyon a clear or sufficient context created by the circumstances. There areseveral infirmities in the case set up by the petitioner. To start with,the case of the petitioner in the petition as to the exact place where theboxes were kept does not accord with what he said on oath. Whereasin the petition he has said that ballot boxes of the two constituencieswere kept in two sep'arate rooms in the godown, in his examination inchief he says that all the boxes were kept in the, godown which has onlyone room. Whereas his version in the petition makes one believe that hewas present at the time when the boxes Were kept and the doors werelocked and sealed, he in cross-examination admits that he was notpresent at the time when the boxes wefe kept. He further admits thathe was not aware where the boxes of Salur Constituency were kept. Headmits in fact in his cross-examination the disparity between the versionin the petition and his statement on oath. It further appears from hiscross-examination that he saw the boxes only on the 23rd and not before.However, in his examination-in-chief, he says that on 22nd he foundthat gddown was opened to take out the boxes of Salur Constituency.His only complaint with regard to that is that no intimation was givento the 2nd Respondent, so that he might be present on the 22nd toverify the seals after the counting of Staliir Constituency was over. Themain circumstance which first excited suspicion according to the versionin the petition is that the door was found Open. This has been catego-rically denied by the 1st respondent. It is significant to note that incross-examination the 'petitioner has said that he does not even rememberwhether there was a door between the room and the hall. This putsan end to the ground of his suspicion. Then again as regards the state-ment relating to absence of seal on the boxes also his testimony seemsto suffer from lack of adequate knowledge or clase observation. Hecould not say which box was found tampered with. Though in the peti-tion it is not stated that the boxes of which village were found withoutseal, he says on oath that the box of Uddavolu did not contain seal. Ifhe was so definite, there was no reason why he did not mention the nameof the village in the petition itself. He says that he had even raisedobjection before the Returning Officer. But admittedly he did not put itin writing. When the counting agent of the 1st respondent took objectiononly in writing, it is but natural to expect that the petitioner as the countingagent would similarly prefer a written objection. Absence of writing makeshis contention improbable and unacceptable. He sa'ys there was only oneseal to the ballot boxes and that was the inner'seal; and that Uddavolu boxdid not contain even that seal. When it was put to him that there Would%t outer and inner seals to each box, he said that he did not think that

2 6 3 V. J . NAIDU V. V. N. NAIDU [VOL. XXXB

there would be two seals to the boxes. This statement is not consistentwith the rules which stress on both outer and inner seals. The respondentin his counter has said that the outer door of the. godown was locked andsealed. Only the door inside the godown leading to the room in whichthe ballot boxes in question were found was not sealed. It was not sealedas it had a catch in the inner side. The door was not open. He furtherstated that the seals of all boxes were, intac and only the outer seal of one-box was missing but the inner seal and the paper bearing the. signatureof the Presiding Officer were there and both the parties were satisfied thatthere was no tampering and had asked the Returning Officer that the ballotpa'pers might be counted.

Of course, the 1st respondent did not on oath throw much light onthis aspect of the case. Even his election agent (R.W. 21) had come tothe hall aftex the counting was started. He was not'present at the time when the objection was raised by thecounting agent of the 1st respondent. B. S. Narayana Rajutold him that he had raised objection that the inner latch of one of the-doors of the room in which the ballot boxes were kept was not bolted; thatthe Returning Officer then explained to both parties that there was noscope for tampering on that account and that on both the, parties agreeingwith him, the counting began. R.W. 21 further says that B. S. NarayanaRaju had also raised objection that the outer seal on one box of Uddavolevillage was broken. Thereupon the Returning Officer explained that therewas no loss because the inner seal was intact. Then both the parties weresatisfied and the counting was continued. He further says that the outerseal of the box was broken during the transit, that the Returning Officershowed the inner seal to the agent of both sides and after the. partiesagreed, the counting was continued. He further says that but for this, noother objection was raised on behalf of any of the 'parties and that thepetitioner did not raise any objection in relation to the se'als of the ballotboxes nor the agents of the 2nd respondent did so.

Thus it would appear that all that could be said was that it was a,case of one of the inner doors being not bolted from inside. That isalso what appears from Ex. P. 17, the application of B. S. NarayanaRaju. When the outer doors were found duly sealed, the mere factthat one of the inner doors was open even if it be true, does not warrantany inference that there was wrongful entry into that room or that theboxes were meddled with. In fact, no signs of interference have been:established by the material on record. All that has been said is that'the seal of one of the boxes, i.e. the box of Uddavole village, was missing.It was the outer seal that was missing. According to the 1st respondent,,the inner seal was intact and there was no evidence to suggest that thepapers inside have been tampered, with. In fact, the explanation of theReturning Officer satisfied both the parties as a result of which thecounting was proceeded with.

The instructions contained in the Handbook for Returning Officer,,issued by the Election Commission in connection with the General"Elections, 1967 in Chapter Vin, Para 14, lay stress on the inner seal"being kept intact. It is made clear that even though the outer seal may

E.L.R.J V. J . NA1DU V. V. N NA1DU 2 6 3

be uemaged, if the inner seal is intact mere can possibly be no interferencewith the contents of trie ballot box ami me Daiioi oox cannot be said tobe tampered with. On thac basis the clear mscrucuons given are that itany candidate or his counano agent raised any objection in respect oithe outer seals, that they are either damaged or lost, if the inner seal isfound intact, tne objection cannot prevail and the counting shall beproceeded with.

Much capital has been made of the fact that there is a discrepancyof more than 6,000 ballot papers as between the earliest information ofthe Returning Officer to the Collector and the later information givenon the basis of actual counting. Ex. P. 19 is the telegram that was senton 18th February, 1967 wherein the Returning Officer stated that 65 percent votes had been polled. It also appears from the letter that theCollector, Srikakulam, later intimated the Chief Electoral Officer thatthe Returning Officer in his subsequent report furnished the percentageof poll as 74. The discrepancy of about 10 per cent so found has beenaccounted for by stating that what was reported on 18th February, 1967was only approximate basing on the calculations of Polling Officers andAssistant Polling Officer on election duty then and it could not be takeninto account as valid, and that the exact 'percentage was 74 per centwhich was found after actual counting. In this state of record, the origi-nal estimate cannot raise an inference of tampering.

From the above discussion it is clear that the petitioner has failedto establish that ballot boxes of Padamanapuram Constituency weretampered with as alleged in para 5 of the petition. Issue No. 2 is,therefore, decided against him.

Now, coming to issue No. 3, the case of the petitioner is that therehas been improper reception of a considerable number of votes and thatseveral votes, which were cast for the 2nd respondent, were, unjustly orcapriciously invalidated. This has been categorically denied by the 1strespondent who stated in his counter that the votes were properly scru-tinised and no votes were improperly received or refused or rejected.The petitioner stated on oath that some votes were improperly receivedfor the 1st respondent and some valid votes were rejected for the 2ndrespondent and he orally raised objections in relation to the same, andthat some of these objections were allowed and some were disallowed.The 1st respondent was not present at the time when the counting wasdone. His election Agent R.W. 21, who was present at the time, stated•hat the Returning Officer showed every vote before he invalidated it toboth the parties and that no objections were, raised when h e decided thatsome votes were invalid. This is all the material for and against thecontention.

The grounds on which a ballot paper may be rejected are elaboratelyset out in Rule 56 of the conduct of Elections Rules, 196! c -> Clons-(3) provides that before rejecting any ballot p'aper under Sub-rule (2 ) ,the Returning Officer shall allow each counting agent present a reasonableopportuni'y to inspect the ballot paper but shall not allow him to handleit. Sub-clause (4) says tV-1- 'he Returning Officer shall endorse on1 E.C.—18

2 6 4 V. J . NAIDU V. V. N. NAIPU [VOL, XXXfl

every ballot paper which he rejects the letter -tC and the grounds oirejection in abbreviated form either in his own hand or by means of arubber stamp and shall initial such endorsement. It is also provided insub-clause, (7) that after the counting of all ballot papers contained inall the ballot boxes used at a polling station has been completed, theReturning Officer shall make the entries in a result sheet in Form 20and announce the particulars.

It is not disputed that these rules have been duly followed. Apartfrom the vague allegation that valid votes of the 2nd respondent werecapriciously or improperly rejec.cd and invalid votes have been impro-perly received for the 1st respondent, there is nothing to substantiate such astatement. There is always a presumption that the rules have, beenduly followed unless particular instances of non-compliance are specifi-cally pointed out. The petitioner failed to give any material facts ordetails with regard to the alleged contravention of rules, and of improperrejection or acceptance of votes, alleged by him. If what he says iscorrect, that some votes were improperly or capriciously rejected andsome were accepted to the prejudice of the 2nd respondent, there wasnothing to prevent the 2nd respondent or in his absence the petitioner,who is his counting agent, to a'plply to the Returning Officer for arecount of the votes, as provided in Rule 63(2) for, on such applica-tion, the Returnina Officer is bound to decide the matter and givereasons for his decisions in writing. The Handbook for ReturningOfficers refers to this obligation in detail in para 20 of Chapter VIII.

It is thus clear that the petitioner, apart from the vague, allegationmade in the petition, has not even stated the material facts or giveninstances on the basis of which he says that there was improper refusal orreception of valid votes. His assertion on oath that his objections wereoverruled orally cannot be true in view of the specific provision in Rule56(3) and (4) . His allegation is not quite in keeping with his conductin not asking for a recount when he could under the statute apply for thesame on the ground that proper counting was not done. In thesecircumstances, issue No. 3, should be decided against the petitioner.It is decided accordingly.

It follows that issue No. 6 also should be decided against him. Eventhough the petitioner might not have applied for recounting of votes tothe Returning Officer, recounting nevertheless can be ordered if thepetition contains an adequate statement of material facts which primafacie make out a case for recounting and the interests of justice requirethe same. A vague general statement that some votes were either im-properly received or refused, without reference to any material facts orproof thereof, cannot entitle the petitioner to a direction in his favourfor a recount. Issue No. 6, therefore, decided against the petitioner.

We now come to issues 7 and 9. Issue No. 7 is based on the state-ment in para 8 of the petition, wherein a charge of bribery has beenbrought against the 1st respondent. It is stated that the 1st respondent,his polling agents and others, with his knowledge and active connivanceand consent, have given bribes to voters and thereby persuaded themto vote for the 1st respondent. The details of the bribes have been setout in Annexure I tD the petition, which gives the names of persons to

.li.L.K.j V. J . NAIDU V. V. N. NAIDU 26j

wnuiii bribes were given, their numbcis in uie voters' lists, the villageslo whicn they belong, the concerned polling booths, and the approximatetime and date when tne bribes were given, the persons who gave the sameand aiso the amounts given as bribes. It is significant that as many as896 names from 26 villages have been given in Annexure I with allthese details, but only two of these persons, viz., P.W. 10 (at SerialNo. 250) and P.W. 15 (at Serial No. 817 in the Annexure I) have beenexamined by the petitioner. P.W. 10 is from Nmalam and P.W. 15is from Bedebalasa.

Then again of the several persons alleged to have bribed the votersin the above 26 villages, only six persons have been called as wknessesfor the petitioner. They are P.W. 5 from Velagavalasa, P.Ws. 6 and7 from Koduru, P.W. 8 from Pedamedapalli, P.W. 13 from Puligummi,and P.W. 16 from Badangi. The voters of those villages are the personsnamed at S. Nos. 734—764, (670—772), (342 to 362), (145 to 157)and 414 to 621 respectively. The 1st respondent is alleged to havebribed the voters (Serial Nos. 1 to 72) at Koonyaalasa and SerialNos. 73 to 93 of jannivalasa wholly by himself, and voters at S. Nos. 94to 144 of Madhavarangarayapuram, S. Nos. 342 to 362 of Pedameda-palli, at S. Nos. 363 to 621, at Badangi (S. Nos. 622 to 626), ofArsavalaga, at (S. Nos. 627 to 654) of Kagam, at (S. Nos. 655 to 669)of Pappalalingalavalasa, a: (S. Nas. 734 to 764) of Velagavalasa al(S. Nos. 765 to 810) of Panukuvalasa, and at" (S. Nos. 807 to 854) otVeerasagaram through his various agents. Of the several persons thusnanied as having bribed the voters only six already referred to above havebeen examined by the petitioner. Some others have been examined byth.~ Respondent. They are: Vadapalli Pattabhirama Swami, (R.W. 6),Vuttaravilli, Allu Sanyasi App'ala Naidu (R.W. 20) of Gobhyam, T.Jagannadha Raju, named in relation to Pappalalingalavalasa and exa-mined as R.W. 21; Mandala Apoala Naidu. named in relation to Velaga-valasa and examined as R.W. 12; and Macha Swami Naidu (R.W. 8tnamed in relation to Badangi and Pudivalasa. The other persons namedin relation to various other villages have not been examined by any of theparties.

Ii is now to be seen whether the petitioner has established his casethat so far as 26 villages are concerned the election was neither purenor free but was permeated bv bribery on a large scale.

It is bat fundamental that elections should take place in an atmos-phere conducive to the free exercise ;of choice by the electorate whichshould be moved and influenced only by the worth of the candidate andthe merits of the programme of the party to which he belongs ratherthan by the unfair aid of his wealth or other influences. That is thereason why the election law has by express provisions sought to curbdown and allow no scope for the undue and corrupt influences whichinterfere, with the purity of election and freedom of choice of the elec-torate. Bribery, treating, putting undue and improper pressure are allcorrupt practices. Sec. 123 of the Representation of the People Act,which refers to corrupt practices, has denned the term 'bribery'. Sec.100 has made it clear that the Commission of a corrupt practice bv areturned candidate or his agent or by any other person with theconnivance of a returned candidate or his agent, by itself is sufficient to

266 V. J . NAIDU V. V. N. NA1DU VOL. XXXII

render the election of the candidate void, 'i he petitioner has allegedseveral corrupt practices ox bribery against the 1st respondent. So thenit JS plain that if he establishes a singie instance ot bribery that would: "'aiidate the election of the 1st respondent. It must also be borne ininvinvalidate the election of the 1st respondent. It must also be borne inmind ihat bribery being by its nature a criminal charge, should be estab-lished by clear and unequivocal proof. It should be proved beyond allreasonable doubt. Suspicion, however strong, cannot take place ofproof. As observed in the LONDON DERRY CASE.!1)

"The charge of bribery, whether by a candidate o r his agent, isone which should be established by clear and satisfactoryevidence. The. consequences resulting from such a chargebeing established are very serious, in the first place iiavoids the, election In the next place, the 43rd and45th sections of the Parliamentary Elections Act, 1868,impose further and severe penalties for the, offence, whethercommitted by the candidale or by his agent. Mere sus-picion, therefore, will not be sufficien: to establish a chargeof bribery, and a judge in discharging the duty imposed uponhim by the statute acting in the double capacity af judge andjuror," should not bold that charge established upon evidencewhich, in his o'oinion, would mt be sufficient o warrant ajury in finding the charge proved."

i

The law in India also requires the same standard of proof of thecharge of bribery. In AHMEDMIYA SHERUMIYA v. CHH/PFAIBRAHIM NURAJI (2) the Bombay High Court observed that Sec. 123of the Representation of the People Act must be stricly canstrued infavour of the person against whom the, charge is preferred and cha-cesof corrupt practice must be strictly proved, and if there is any reasonabledoubt, the benefit of that doubt must be given to the person againstwhom the charge is preferred,

To similar effect is the observation of this Court in D. MURALIDHA RREDDY v. PAGA PULLA REDDY ( s) JAYALAKSHMI DEVAMMAv. JANARDHAN REDDY (4) and CHA DA LA VA DA SUBBA RAOv. KASU BRAHMANANDA REDDY ( 5 ) . The Supreme Court inHARISH CHANDRA BAJPAI v. TRILOKI SINGH (fi) has said thatcharges of corrupt practices are quasi-criminal in character and t^eallegations relating there.'o must be sufficiently clear and precise to brinehome the charses to the candidate.

Thus all the above decisions make it abundantly clear that theevidence in support ,of corrupt practice of bribery must of necessity satisfy

(1) (1869) O' M and H 274 at 27S(2) (1959) 17 ELR 218(3) (1964) 2 An WR 242 & AIR 1964 AP 530(4) 17 ELR 2(5) (1966) 2 An WR 401(6) 12 ELR 461

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that test which is applied to the proof of criminal charges. It must beclear and unequivocal and must establish the charge beyond reasonabledoubt not only because the election of a returned candidate cannot belightly set aside without clear and cogent evidence with regard to thealleged flagrant violation of the provisions of the lav/ but also because thecharge in this nature partakes o*' a criminal offence and entails seriousconsequences. The being the te?t, 1 have to see whether the said test hasbeen satisfied in this particular case.

In support of the petitioner's case, in addition to the staiemeru ofthe petitioner (P.W.21) P.Ws. 5, 6, 7, 8, 10, 13, 15 and 16 have beenexamined. The petitioner has, no doubt, entered various details, inAnnexure i, but he admits that he has no personal knowledge of theseinstances. His evidence is based wholly on the information that hereceived. Who were the various informants is not clear from hisevidence.

i\W. 5 is a resident of Velagavalasa and had acted as polling -gemtor the 1st respondent. The petitioner, in the Annexure 1 at serial.Mo. 734, has shown that on 17th February, 1967 between 6 and 8 P.M.the 1st respondent through his agents, P.W. 5, R.W. 6 and R.W. 12,distributed Rs. 150 among 30 voters at the rate of Rs. 5 to each voter.As against the name of P.W. 5, which appears at serial No. 762, he hasmentioned that he was paid Rs. 200 on 15th February, 1967. Whattranspires from the statement of P.W. 5 is that three days prior to theelection, on 15th February, 1967, a meeting was held. After the meet-ing the 1st respondent paid him Rs. 200, out of which by the 17thFebruary he had spent Rs. 50 and the balance of Rs. 150 was distri-buted among 30 persons at the rate of Rs. 5 per voter for canvassingand for giving votes to the 1st respondent. P.W. 5 tries to give thenames of all these persons. But of these, the names of RakumandaGangayya, Arubilli Papi Nandu, Sabalaparapu Appalaswami, ArtakotluRamulu, Chukka Appalaswami and Rakmanda Gandhi do not find aplace in the concerned part of the annexure from serial Nos. 734 to 764.According to him, for the meeting on the 15th, the 1st respondent alongwith R.W. 6, R.W. 12 and Budhi Raju had come, there and paidRs. 200 to him in the presence of China Appala Naidu, the President ofthe Panchayat Board. On the 17th, for purposes of distribution he(P.W. 5) went into the street, stood in front of Pilla Bangaraiah's house,sent word to voters through Meesala Appanna and all the 30 personscame one after the other to him. He paid Rs. 5 to each of them andIbid them that they should not go to work on the next day but help himby giving votes to the 1st respondent. Curiously enough, even on thatoccasion, the 1st respondent and R.W. 12 happened to come to that place.If they had come by design, there was no need for the 1st respondentpaving money on the 15th itself for purchase of votes. When he wasactually present at the placg there seems to be no reason why themoney was not paid at his hands. Was it due to implicit confidencereposed in him that P.W. 5 was allowed to pay the money himself onbehalf of the 1st respondent? Did he ever OCCUDY such position ofextreme trust before? If that be so, it is ironv of fate that he who hadbeen so implicitly relied on to him the 1st respondent should now be inthe opposite camp and depose about his own commission of the corrupt

2 6 8 V. J . NAIDU V. V. N. NAIDU [VOL. XXXIC

practice and also various other matters which are unfavourable for thecandidate for whom he had pleged himself to work. It is significant tonote that he at one place in his cross examination has said that he spentRs. 200 for pasting wall oosters and for vanvassing and for .otherexpenses. He does r.oi say there that any part oi this j^ni was spent onpurchase of votes. His statement may still be consistent with the otherparts of his statement if the word canvassing is taken to include thepurchase of votes. Be that what it may, according to him, ChepanaAppala Naidu, the President, was present at the time of distribution aswed but he is not called as a witness It is surprising how this case ofcorruption was brought to the knowledge of the petitioner when P.W. 5says that he did not state the names of the persons to anybody after theelection till the date of his evidence. The petitioner has not explainedhow he came to know this. In this state of record the proof of theincident has been made to rest solely on the testimony of P.W.5.Besrjg himself involved in the offence, his position is in no way betterthan that of an accomplice. Unless there is corroboration, it is difficultto accept his testimony. The evidence required in support may either beoral or circumstantial. But it is plain that there is no oral evidence worththe name in support and the known circumstances of the case do notsupport him. The petitioner has stated in the annexure that the respon-dent through P.W. 5, R.W. 6 end R.W 12. had bribed the voters in thatvillage. But according to P.W. 5 it was he who <ia<i fnl'<*d ihc votersthrough Meesala Appana and paid the money in the street in front oftiie house of Pilla Bangaraiah. Meesala Appana and Pilla Bangaraiahhave not been examined. Even with regard to the person whom he hadpaid the money, his version does not accord with the annexure. I havealready shown that at least some of the names do not bear mention in theannexure. All these circumstances cannot be lost sight of while assessinghis evidence and judging how far it accords with the probabilities. Wasit probable that R. 1 would have given him the money to be paid to thevoters when he himself had to come to that ^ilhuv **'••• ! ! i- uuy oJ!payment and the payment was to be made in his presence? Even if it beasiumed that he came there with others only accidentally not by previousappointment, could he have iefrained from actual participation in thematter? The 1st respondent as R.W. 1, has categorically denied thathe had come to th? village in connecti.ru with the meeting or convenedany meeting, paid money to P.W. 5, or that he had paid a sum of Rs. 200to P.W. 5 or that he had gone again on 17th to Velagavalasa or themonsy was paid to the voters in his presence or at his instance. R.W. 21T. Jagananath Raju alias Buchi Raju, President Datta Rajem Pancayathas not supported P.W. 5, R.W. 6 who has been named by him hasdenied that any meeting was called or any money was paid to P.W. 5in his presence. There is no reason to disbelieve him. The pefi=;o"erreferred to his name in the annexure as the person through whom alsovoters were bribed there. This is not corroborated by P.W. 5 and nosugestion to that effect is made in his cross-examination AH that b-isbeen said asainst him (R.W. 6) is that he took the fertilizer loan fromthe District Marketing Society, but sold the fertilizer and did not pay offth» loan. The other circumstances against him is that he alon?. withother had worked for P. 1. These circumstfnees do not discredit histestimony. Then tfrre is the testimony of R.W. 10 who belongs to Vela-gavalasa. According to him P.W. 5 did not canvass for the 1st respondent.

E.L.R.] V. J . NAIDU V. V. N NAIDU 269

Chepena Jajanadha Naidu was the only person who canvassed on behalfof the 1st respondent.

R.W. 12 also has categorically denied that there was a meeting heldon the 15th at Velagavalasa, that ne had gone over there, or that P.W. 5,was paid Rs. 200, or that again he had gone on 17th to Velgavalasa.He says he does not know P.W. 5 and that he never visited any village inconnection with elections. The witness is the village munsiff of Uttaravilli.As a rule, he should not absent himself from his village withoutdue permission, normally it cannot be 'presumed that he mighthave left his headquarters and toured the village without permis-sion. Of course, this witness does not seem to have a clean record. Hewas involved in criminal litigation, was fined though finally acquittedHe was suspended on charge of embezzlement for a period of two years,and is alleged to have committed various irregularities in the dischargeof his duties. He and his father have worked for R.I. Owing to thesevarious features of his testimony much reliance may not be placed in thisbehalf on his statement. But the fact remains that unless P.W. 5's state-ment is corroborated, it cannot be acted upon specially when it is notconsistent with the ordinary course of human conduct.

As observed by this Court in C. SUBBA RAO v. K. BRAHMAN ADAREDDY (1966-2An. W.R. 401) any person directly or indirectly con-cerned with the offence of bribery or is a privy thereto comes within thecategory of accomplices. Such a person may of course be a competentwitness in law, but Section 114 of the Evidence, Act in its illustration laysdown a rule of caution and prudence for acting upon such evidence. Asobserved in RAMESWAR son of KALYAN SINGH v. STATE OFRAJASTHAN (A.I.R. 1952 S.C. 54) in acting upon evidence of thekind and basing conviction thereon, the necessity of corroboration as amatter of prudence except where the circumsiances make it safe to dispensewith it must be present to the mind of the judge. In election matters aswell this rule of caulion must necessarily be, borne in mind while holdingthe charge of bribery proved. Judged thus, it is impossible to holdon the testimony of P?W. 5 itself that the charge of bribery stands subs-tantiated. Apart from the faci that P.W. 5's testimony does not findcorroboration from the evidence led in on behalf of the petitioner, thetesri-nony of R.W. 1, R.W. 6, R.W: 10 and R:W: 12effectively rebu's it. That he was a Polling agent of the 1strespondent is not a circumstance strong enough to lend assurance to histestimony which evidently is neither consistent with the case of the peti-tioner in the annexure, nor with itself, nor is it jn conformity with theordinary course of events or human conduct, as discussed above.

'TTius it mav be seen that of the 26 villages where bribery is said tohave been committed, the petitioner has sought t0 adduce evidence onlyin relation to 6 villages.x The evidence adduced is too weak and uiscre-p'r.r<t to establish the charge of bribery. The enquiry into the charge ofhriivrv in an rat ion riroceedine is auasi-criminal in nature. The onuslies heavily on the petitioner who brings the charge. He is to establishit by clear and cogent evidence proving the charge beyond all reasonable

2 7 ° V. J . NA1DU V. V. N. NA1DU i\OL. XXXII

doubt. This onus never shifts nor the circumstance that certain witnesseswere named by the respondent but have not been examined, can reduce theburden of the petitioner of proving the charge. The evidence adduced istoo week to establish the charge- Issue No. (7) is, therefore, heldagainst the petitioner. As a consequence of findings on issue (7) and(8), Issue No. (9) also must be held against him.

There remain issues 10 and 11. These issues deal with the corruptpractice contemplated by S. 123 (6) of the Representation of the PeopleAct. The allegations in this behalf are contained in Para 10 of thepetition. The petitioner alleges that the statement of account of electionexpenses submitted by the returned candidate does not reflect the true orcorrect state of expenditure incurred or authorised by him or his electionagents between the date of the publication of the notification and the dateof the, declaration of the result inasmuch as the actual expenditure in-curred on certain items has been wholly suppressed, on certain other itemshas been under-stated and false vouchers have ' been produced. Thedetails of these allegations have been set out in sub-clauses (a) to (k) ofpara 10. These various sub paras show that whereas the 1st respondenthas shown in the return submitted that his total expenses were onlyRs. 5,013 he has, in fact, far exceeded the statutory limit of Rs. 7,000 andis therefore guilty of corrupt practice which would render his election void.

Section 77, which refers to the account of election expenses aidmaximum limit thereof, reads thus:

"(1) Every candidate at an election shall either by himself or byhis election agent, keep a separate and correct account of allexpenditure in connection with the election incurred orauthorised by him or by his election agent between the dateof 'publication of the Notification calling the election and thedate of declaration of the result thereof, both dates inclusive.

(2) The account shall contain such particulars, as may be pres-cribed.

(3) The total of the said expenditure shall not exceed suchamount as may be prescribed."

The term 'prescribed' appearing in sub-clauses (2) and (3) meansprescribed by rules made under the Act as contemplated by Sec. 2(g)Rule 86 of the Conduct of Election Rules specifies the particulars' thatthe account of election expenses should contain. Rule 90 refers to themaximum limit of expenditure which in connection with an election innny one Assembly constituency in Andhra Pradesh is Rs. 7000.

'Corrupt practice' within the meaning of the Act, as defined in Sec.2(c) means any of the practices specified in Sec. 123.

Sec. 123 reads thus:"The following shall be deemed to be corrupt practices for the pur-

poses of this Act".* * * * * *

i-.J-.R.J V. J . NA1DU V. V. N NAIDU 2J1

(6) A lie incurring or authorizing OL expenditure in contravention <>i-Section 77."

Section 100 says:

"(1) Subject to the provisions of sub-section (2) if the High Courtis of opinion.

(b) that any corrupt Practice has been committed by a returnedcandidate or his election agent or by any other persan with the consentof a returned candidate or his election agent:

the High Court shall declare the. election of the returned candidate tobe void".

It is manifest that a corrupt practice within the meaning of Section123(6) of the R.ly. Act consists in the act of incurring or authorisingthe expenditure in contravention of Sec. 77. The act of main-tenance of accounts or keeping full particulars thereof is certainlyan act distinct from the act of incurring or authorizing expenditure andhence is not within the ambit of sub-clauss (6]f of Section 123 and it doesnot thereof constitute a corrupt practice within the meaning of the Repre-sentation of the People Act.

Judged thus, it is only where there 'has been a contravention of Sub-clause (3) of Sec. 77, a corrupt practice shall be deemed to havebeen committed, on proof whereof the election shall be declared void.Omission to maintain a separate and correct account of expenses withall the particulars as enjoined by sub-clauses__( 1) and (2) of Section 77is no doubt non-compliance with the provisions of the Act or the rules,made thereunder witfiin the meaning of Sec. 100(l)(d)(iv) but that doesnot constitute a corrupt practice so as to render by itself and withoutanything more the election void. This position in law is beyond pale ofdispute, as it is concluded by authority. The Allahabad High Court inGhayar All Khan v. Keshav Gupta (?) observed that the corrupt practicementioned in s. 123(6) does not cover a case where the accounts underS.77(l) have not been daily and regularly"kept by the candidate or hiselection agent. The corrupt practice consists not in not maintaining theaccount as required by sub-sec. (1) of S.77j_bul in incurring or authorisingan expenditure in contravention of "STTT which would be the case onlywhen the total of the expenditure exceeds the amount prescribed underthe rules, as mentioned in sub-sec.T3Viof S.77. Thus it is the incurringor authorising an expenditure in contravention of S.77 which has beenmade a corrupt practice andifot an irregular maintenance of accounts.

Similar was the view taken in Sheopatsing v. Harishckandra (8) aftfC. R. Narasinihan v. M. G. Natesa Chettiar (°) which was followed inMuthiah Chettiar v. Srinivasan ( " ) . The Madras High Court in Muthiah

(7) A.I.H. 1959 All, 264 ; (S) A.I.R. 1958 RajaSthan, 324;(9) A.I.R 1959 Madras 514; (10) AIR i960 Mad. 851;

(11) A.I.R 1962 Mad. 239-

2 7 2 V. J . NAIDU V. V. N. NAIDU [VOL. XXXII,

Chettiar v. Ganesan (10) and Vansantha v. Srinivasan ( u ) . The MadrasHigh Court in Muttiah Chettiar v. Ganesan (10 held that a returned candi-date is not guilty of any corrupt pratice under S. 123(6) merely by reasonof an omission to include certain items of expenditure in the account of 2iiselection expenses as required under S. 77(1). Nor i& he guilty of the samecorrupt practice because some of the vouchers filed by him are not asrequired by law and therefore he has contravened S. 77(2). It is onlywhere there is a contravention of S.77(3) by authorising or incurringexpenditure in excess of the maximum limit prescribed, that S. 123(6) willbe attracted.

It is but fundamental that a provision which brings certain act oracts within the mischief of a corrupt practice must be strictly construed.No act can be brought within its ambit unless it comes directly andstrictly within the language of that provision. The words "incurring orauthorising" must be given their natural and grammatical meaning. Asobserved in Sheopatsing v. Harishchandra(s):

"One incurs expenditure when one actually spends money. Oneauthorises expenditure when one incurs a pecuniary liability".

Unless the above conditions are satisfied, the provisions of Sec. 123(6)will not be attracted.

Now, it is to be seen whether the returned candidate has incurredor authorised expenditure exceeding the maximum limit. The mere factthat the account has no£ been maintained in strict commercial form,or that the particulars nave not been entered in due accord with theconduct of Election Rules, is not of much consequence for our presentpurpose. The mere point to be considered is whether the 1st respondenthas incurred or authorised expenditure in excess of Rs. 7,000/- whichis the maximum limit prescribed in his case. As it is, he had submitteda return of Rs. 5,103/-, leaving still a margin of Rs. 1897/- to avoidthe application of S.123(6). But the contention of the petitioner is thathe has in fact exceeded the maximum limits. In support thereof hehas examined several witnesses for various items. Of course, being anenquiry quasi-criminal in nature, conjectures or surmises are of littleconsequence and suspicion however strong, can never take the place ofproof. The fhar^e has to be established by clear and cogent proof beyondreasonable doubt.

The case of the petitioner in this behalf, as already noticed is embo-died in sub-clauses (a) to (k) of para 10 of the petition. Sub-Clause(2) relates to the hire expenses of bicycles; sub-clause (b), the amountspaid to workers enqaeed for electioneering campaign; sub-clause (c . toexpenses incurred for feeding volunteers and workers; sub-clause (d) toexpenses incurred on the polling agents; which it is stated was wholly

(9)"A.I.R.T959 Mad. S14 ; ( IO) A.I.R i960 Mad.( t i ) A.I.R. 1962 Mad. 230;(8) A.I.R. 1958 Rajasthan 324;

E.L.R.] V. J. NAIDU V. V. N. NAIDU 273"

suppressed in the return; sub-clause (e) to the expenditure incurred on theday of election, which is alleged to be understated; sub-clause (f) to theexpense incurred for printing and exhibiting wall posters all over theconstituency; sub-clause (g) to the charges for printing and publishing anappeal in the name of Mugada Rytu Sangham: sub-clause (h) to the ex-penses, incurred bj- the election agent far electioneering activities, allegedto have been wholly suppressed; sub-clause (i) to the hire charges ofvarious vehicles used for electioneering purposes and the expenditureincurred in relation thereto; sub-clause (j), to the expenditure incurredby the Raja Saheb of Bobbili and his son for canvassing support for the1st respondent; and sub-clause (k), to expenses incurred for several meet-ings, microphones, loud speakers, band, etc., which were actually used.

The respondent in his counter has categorically denied that he hadincurred or authorised any expenditure in excess of what is stated in thereturn and his contention is that in no event he has exceeded the maximumlimit of Rs. 7,000/- prescribed under the Act and the rules made there-mider.

The only question now is how far the petitioner has substantiated hiscontention. It is convenient to take up the question itemwise.

(After considering the evidence on the allegations in Paras 10(a) to10(i) of the petition that some expenses incurred by the first Respondenthad been suppressed from his return of election expenses, the judgmentproceeded).

In para 10(i), the petitioner has stated that the 1st respondent employ-ed for his election campaign several motor vehicles and that the expendi-ture incurred thereon has not been shown in the return. He has furtherstated that the vehicles belonged to the Rajah Saheb of Bobbili, who hadset up the 1st respondent as a candidate, and there is no reason whythe hue charges of these vehicles ought not to be shown in the return.Even if some of the vehicles were lent gratuitously, the probable depre-ciation should have been shown. There is paucity of evidence even inrelation to this. It has not been proved that he had used several motorvehicles or that he had used any vehicle other than APK, 4188. Ofcourse the petitioner claims to have personal knowledge about two jeepsand one tractor. He speaks of several vehicles referring to the extractsof certificates Ex. P. 21 to P. 27, but he has no personal knowledge abouttheir being used by the 1st respondent. He admits that his statementthat vehicles Ncs. APS 999, APS 249, APS 1156 and APS 1117 wereused for transporting voters is based on hearsay. These are the vehiclesbelonging to the Rani, Rajah Saheb and others. There is no evidenceto prove the use of these vehicles by the 1st respondent. Even withregard to the two jeeps and one tractor about which he says he has per-sonal knowledge, his statement lacks specific details and is not supportedby any evidence. It is plain that the only vehicle that was used by the 1strespondent or his election aeent is the jeep bearing registration numberAPX 4188. The mere assertion of the petitioner that the Rajah Saheb-of Bobbili had assisted the 1st respondent is of no avail.

. 2 7 4 V. J . NA1DU V. V. N. NA1DU [VOL. XXXll

As held in Muthaiah Chettiar v. Ganesan (10), on the basis of theiictum in Sheopat Singh v. Harishchandra(8); and Rananjaya Singh v..jaijnath Singh(12), it is actual expense incurred or authorised thatshould be taken into consideration. In computing the table of expendi-ture, free services given to a candidate by others cannot be included. Asit is, there is no evidence that the Rajah of Bobbili had lent any cars orvehicles for the purpose of propaganda gratuitously or otherwise, or lhathis agents were employed for canvassing for the 1st respondent. Lvenif that were the case, unless it be clear that the candidate (the 1st res-

is not permissible in law. The allegation in para 10(i) also, therefore,fails.

In para 1 0 0 , the petitioner has alleged that the Rajah Saheb and hisson actively canvassed support for the 1st respondent, that they partici-pated in meetings and exhorted the public to vote for the 1st respondent,and in this way they constituted themselves agents of the 1st respondentand, therefore, whatever expenditure incurred by them must be disclosedin the return of election expenses and that has not been done. First .ofall, there is no evidence, clear enough, that the Rajah Saheb and his sonactively canvassed support for the 1st respondent. The 1st respondentadmits that at Paltheru there was a meeting and it was held at the instanceof the villagers who called the Rajah Saheb to address. That was notarranged at the instance or essentially for the purpose of the 1st respon-dent. The Rajah Saheb himself had entered on a campaign against theCongress and if he had said anything during that campaign for the 1strespondent also, he does not become an agent of the 1st respondent sothat whatever expenses he himself had incurred may be deemed to be meexpenses incurred or authorised by the 1st respondent. Some of in-;witnesses of the petitioner no doubt have said that the Kumara Rajahhad also done some canvassing works for the 1st respondent, but thatevidence is not convincing enough and it does no: bear scrutiny at all.It does not appear from the record that either the Rajah Saheb or hisson had spent any specified amounts for the 1st respondent or at theinstance of the 1st respondent, which must go into the candidate's accountfor purposes of election. By doing propaganda against the Congress andin favour of independent candidate, any person cannot become the agentof the candidate. The contention of the petitioner that the Rajah Sahebof Bobbili used miscrophones and foucT-speakers for the purpose of themeeting also is of not much consequence for our purpose, when it isclear that the Rajah Saheb was not his appointed or instructed agent nnrwas the meeting held at the instance of the 1st respondent nor essentiallyfor the 1st respondent's election purposes. The allegation in para 10(0also is unacceptable.

Para 10(k) relates to the microphones, loud-speakers and band usedin the various meetings held. The 1st respondent has stated that heused only 3 mike sets and did not take any loud-speakers separately onhire and that he has included in his account the hire charges for the

(8) AIR 1958 Raj 324; (10) AIR i960 Mad S51;r 12) AIR 1954 SC 749.

F.S.R.] V. J . NA1DU V. V. N. NAIDU 275 ' ,

mikes, which include the loud-speakers connected with them. There was.an attempt on behalf of the petitioner to suggest that loud speakers arenot the essential complement of the mikes and to show on that scorethat since loud speakers were not separately listed in the electionexpenses, the expense relating thereto should now be taken into account.The contention of the 1st respondent, which in my opinion, is correct, isthat mikes and loud-speakers go together. There cannot be a mike with-out a loud-speaker and hence the inclusion of the hire for mikes in theaccount necessarily moans the inclusion of the hire for the loud-speakersconnected with them. The 1st respondent has said that he did not useany separate set of loud-speakers for propaganda purposes. He saidthat he used gramophone records to attract the public. As alreadystaled, the onus lay on the petitioner to prove that certain items accountedfor have been under-estimated or some of the expenses are suppressed.The petitioner has failed to establish that the 1st respondent had incurredexpenses on mikes or loud-speakers Hi" excess of what has been mentioned:in the return or that he has spent further amounts on band, etc.

Some controversy has been raised on jhe question of petrol expense.In ;he petition, of course, there is no clear allegation in this behalf. Paral()(fi does not contain any such allegation. There is no express allega-tion in Para 10(i) also. All that has been said there is that the expendi-ture incurred on motor cars has_not been shown in the return. If anallegation in regard to petrol charges also is implicit in this, we have tosee how far this allegation is Some out by the record. Of course, it isthe case of the 1st respondent that he took petrol from the petrol bunk,Bobbili. C. Venkatarao, Secretary, Motor and General Stores, PrivateLimited, has been examined as P.W. 12 on behalf of the petitioner. Hebrought to the Court both cash ..and credit bill books from 15th January1967 to 1st March 1967. ATPtHese~'bill books, which are 13 in number,were marked in entirety (Ex. P. 4 to Ex. P. 16), and the witness was askedwhether the bills contained in these bill books represent genuine saletransactions and the details mentioned in those bills are correct. Theattention of the witness was not drawn to each bill nor was any questionput in relation to particular bills onjvbich reliance has to be placed foxsuggesting that the amount of the said bills, though relating to the firstrespondent, has been suppressed in the return of election expenses. P.W.12 in cross-examination has said that he has no personal knowledge ofthe entries in those books, that he was not present at the time when theentries were made and that he did not. maintain those books. It isplair!, therefore, that P.W. 12 cannot enlighten us on any of the en! iesof I he Bill or vouch for the veracity thereof. Nevertheless at the t'raeof arguments, relying on certain bills contained in these bill books, it waspointed out that the amount of 15 bills was not accounted for in thereturn of election expenses. Apart from the fact that these bills haveno! been duly proved so that they may have any probative force, it isobvious some of these bills do not bear reference to A.P.T. 4188 at all.The prefix of No. 4188 in Ex. P.5/140 dated 29th January 1967 is sowritten as to be read as APL. Ex. P.6/144 dated 30th January 1967does not bear the number of the Vehicle. The person, who is said to havedrawn oertol is Arjpala Naidu of Pinapenki. He could not be the 1strespondent Ex. P.6/144 dated 31st January 1967 relates to APV. 4188F'x. P6/144 dated 2nd February 1967 doe.s not correctly mention APK

. 2 7 6 V. J . 1SAIDU V. V. N. NA1DU LVOL.

4188. Ex, P.7/146 dated 4th February 1967, Ex. P.8/147, dated 14thFebruary 1967 all beat the number APV 4188, and Ex. P.9/149 dated15th February 1967.bears APS 5455; and Ex. P. 9/149 dated 17thFebruary 1967 bears no number. Thus, it would appear that these billsdo not relaie to the jeep concerned. It is but elementary that a documentis not by itself proof of the contents therein unless its execution is provedin accordance with law. The person, who has issued petrol or writtenthe concerned bills, has not been examined, nor is the person in whosepresence, the transaction has taken place has been examined. The person,who has produced the bills, has no personal knowledge of either thetransactions or of the entries in the bill books. So, then those bill bookswhich have not been proved in accordance with law cannot cast anyliability on a contending party unless that party has had an opportunityto cross-examine the author of the same or the person acquainted with thetransaction. The first respondent has not admitted the genuineness ofthese bill books. In ordbr to suggest that the bill books cannot be freefrom suspicion, he has sought to elicit fftjft ftW. 12 tftat one of thedirectors of the Company is a Congressite or a person belonging to adifferent politipal party. In these circumstances, reliance on all thesebill books is of no avail. Of course, if these bills were duly proved, thebills referable to APK 4188 jeep could be taken into account and asum of Rs. 165.20 could have been held as the excess.amount for whichthe first respondent has not accounted for in his return. But the factremains that, unkss the bills are proved in accordance with law no suchconclusion can be drawn by the mere production of the bill books. Itfollows that there is no evidence to justify the conclusion that a part ofthe petrol charges really incurred by the first respondent has escapedmention in the election expense return.

The learned counsel for the petitioner has also invited my attentionthat there are certain amounts which were admittedly expended by thefirst respondent but have not been shown in the account. Reliance forthis has been placed on the testimony of the respondent's witnesses in-cluding those of the respondent himself.

It is urged that, on the nomination day, even according to his admis-sion, the first respondent had paid bus fare (Rs. 2/-> and spent for hismeals Rs. 3/- or Rs. 4/-, but "this amount has not been iiidttded ill flWreturn. The respondent has said that he had gone to CheepurupalJialong with one Simachalam Raju, a dummy candidate, for filing nomina-tion papers. Each of them paid bus fare for himself and met thetxpenses for meals individually. They had further made a deposit ofRs. 250/- each. The contention of the respondent is that the petitionerought to have included in the return not only his own expenses but alsoof the dumray candidate including the deposit of Rs. 250/- made by thedummy candidate. I do not think—nor the learned Counsel wasserious oa the point—that the 1st respondent was bound to account forthe expenses of Simachalam Raju as well who stood as a candidate, fileda nomination paper and made a deposit on his account. Of course,as the bus fare was incurred by the respondent for the purpose of filinga nomination paper, and he had also incurred further expense on hismeals, this amount, which comes to Rs 6/-, Ought to have been shown

-as ati election expense.

E.L.R.] V. J. NAIDU V. V. N. NA1DU 2 7 7

Then again, it is pointed out that on the scrutiny day also, the firstjcsponctent had similarly gone to tBe place and likewise incurred expendi-ture'of bus fare. Further, he spent Rs. 5/- for refreshments. 1 thinkme admitted expanse of Us. 5/- plus Rs. 2/- ought to have found aplace in the list of election expenses.

It is also said that the first respondent did not bring to account theamount that he spent in a hotel at Salur when he went there on the count-ing day. The petitioner estimates this expenditure at Rs. 8/-. Thereis no evidence to suggest that Rs. 8/- were the hotel charges. In theabsence of any proof and also of any pleading, this item cannot be takeninto consideration.

The next item relates to the expenses for the jeep. It is contendedthat the first respondent has not shown in his return of election expensesthe hire charges of the jeep or the depreciation thereof nor has he shownthe emoluments of the jeep drivers and the expenses incurred on himfor his meals, etc. It may be noted that the 1st respondent is not theowner of the jeep. It was given to him along with the driver free ofany charge. The jeep (APK 4188) was purchased in July, 1966 andthe joint family of R.W. 21 i.e., R.W. 21 and his brother are its owners.The jeep was given free along with the driver. R.W. 21's brotheralways used to pay the driver's salary at the rate of Rs. 50/- per monthand daily batta, if any, at the rate of Rs. 2/- at the end of each month.The je.ep of course was used mostly for purposes of election campaignduring the period from 16th January 1967 to 18th February 1967. Forsome time however it was also used for the family purposes of R.W. 21and his brother. R.W. 21 has said that his family had used the jeeptwice or thrice during that period. Once his family had gone to Raya-garh and at another .time to Visakhapatnam, in the jeep. It is thereforeobvious that, during the period of about one month, for some, time thejeep was also available to and was used by the family of R.W. 21 andhis brother at intervals. It is also obvious that the 1st respondent didnot incui any expenditure towards the repairs of the jeep. In such cir-cumstances, the 1st respondent is not bound to account for the cost of thejeep or its reasonable hire or repairs, nor is he bound to account for thesalary and batta paid to the driver when he did not incur that expenseat all, and when it is clear thafit was a gratuitous offer of both the driverand the jeep That such is the law is obious from the decision of theMadras High Court in Muthiah Chettiar v. Ganesan(10) and of theRajasthan High Court in Sheopatsing v. Harishchandra and of theSupreme Court in Ramanjaya Singh v. Baijnath Singh(12>.

All that the respondent is bound to account for is the expenditurethat he acually incurred on petrol or other expenses, if any, for the jeepand any amount spent by him on the driver. The theory that he shouldaccount for the depreciation charges also cannot be accepted. Firstly,it is not ascertained what was the extent of the depreciation on accountof the use of the jeep for a sTiort period like the present There is noevidence on record in this behalf. It I s notjjpen for us to <uter for thispurpose into realm of surmises or hazard conjectures. There is norecord as regard the actual condition of the jeep when it was first given

(io)A.I.R.i96o Mad. 85;(r2)AlR.i9j4 S.C. 749.

2 7 5 V. J . NAIDU V. V. N. NAIDU [VOL. XXXII

and also when it was returned. There is nothing to suggest that byreason of its use any repairs became necessary or repairs had beenactually made by R.W. 21's famih. I n these circumstances, the questionof damages or depreciation cannot arise so that it may be urged that adefinite amount ought to have been included" in the return of electionexpenses.

The only item, which must be an election expense, to find a place inthe return is what the 1st respondent or his election agent incurred byway of petrol and other expenses of the jeep and the amounts spent-byhim on the driver. So far as the 1st respondent is concerned, he hasadmitted that he spent amounts on the tiffin and meals of the driver duringthat period and this comes to about Rs. 50/-. This certainly is anelection expense which ought to find a place in the return. As regardshis election agent, no ascertained amount has been proved to have beenspent on the driver's meals, etc. There must be clear evidence in relationto the amount acually expended It m Q«% then that item wiH be takeninto consideration. I disallow th& plea of ffie petitioner that the emolu-ments of the jeep driver and reasonable hire and depreciation charges ofthe jeep ought to have been shown as a part of the election expenses inthe return submitted. The only amount that can be said to have beenomittied from this return is a sum of Rs. 50/- which the first respondent hasspent on the driver for his meals, etc., that being the expense which hehad actually incurred.

It is then said that R.W. 1 had procured polling agent forms, at least130 in number, and he has not included the price thereof in the listof election expenses. R.W. 21 admits to have purchased the forms atthe rate of 5 paise each, but it is obvious that it is not entered in thereturn of election expenses. Therefore, the value of these forms, whichcomes to Rs. 6.50, must be included in the return.

The next item on which stress has been laid is that nowhere tb&expenses of election agents have been shown in the return. The entirereturn shows the expenditure of the candidate. The petitioner, thereof,computes these expenses at Rs. 200/-. What the basis of this computation-is, is not known. Unless there is clear evidence that the election agenthas incurred expenses which come to a particular figure, it cannot beheld that some specified amount should have found place, in the return ofelection expenses.

It is next contended that whereas a sum of Rs. 1080/- has been shownin the election expense return as the amount paid to cycle boys as workers^the true expense incurredTon that account should have been As. 1,800/-.That is the necessary result if it be said that the boys were paid atRs. 3/- per day from 31st January 1967 till 18th February 1967 for 20 days.It is not as through no worker did not absent himself for any day for somereason or the other so that it may be held that the figure shown is incorrect.Whatever amount they had paid to the workers has been entered in thereturn, and it has been vouched for by R.W. 1 and R.W. 21. In theabsence of any clear evidence to the contrary, it is not possible to fix.th figure at Rs. 1800/- by way of estimate.

(After considering the evidence on the allegations in the petition thatthe first Respondent had suppressed full information in his return ofelection expenses on items like cycle boys, posters etc., the judgment pro-ceded).

fi.L.fcj V. J. NAIDU V. V. N NAIDU 279

P.Ws. 21, 24 and 26 have spoken generally about wall posters, andthis has been rebutted by R.W. 1, R.W. 21 and R.W. 8, who had madetheir sojourn9 in various villages during the period of canvassing. It willbe seen from the above evidence that there is no clinching proof or strongor dependable evidence adduced by the petitioner in support of his caseas to wall posters and the probabilities are in favour of the 1st respondent'scase. The witnesses examined on behalf of the petitioner are sufficientlyinterested in him, and their evidence has been effectively rebutted bythe witnesses of the 1st respondent. As regards the number of wall posters,there seems to be no conformity in the, statements of these witness.As already noticed, the 1st respondent had employed various methods ofpublicity. There were door posters, flower flag symbols, carboard packetflower symbols, pamphlets, flower marks etc. Merely because the peti-tioner had affixed wall posters, it did not become necessary for him toadopt the same method for himself as well. He devised a more effectivemeans of lasting impression. Instead of wall posters which may be affect-ed by weather ,and wind and may be torn by children, he thought orpainting the appeal and symbols on the walls which would have relativelymore stability and expended on this sufficient sums as borne out by theentries in the return of election expenses. It may be remembered thatin order to treat the value of the wall posters as election expenses whichshould find place in the return, it was necessary for the petitioner to firstestablish that the posters had eamanted from the 1st respondent and wereaffixed by his agents or workers at his instance or under his instructions.Evn so in order to bring the case under section 123(6) he has to provefurther that the expense involved therein was more than the differencebetween the maximum limit prescribed and the expense actually shownin he return. None, of these factors can be a mere matter of surmise orconjecture. They have to be positively established and the evidenceaduced must come upto the standard of proof in a criminal case. Theevidence adduced on behalf of the petitioner is deficient in all theseaspects. It was, however, argued that the 1st respondent hassuppressed the original account book which also contained theexpenses on wall posters. There is no warrant for such an assertion.The 1st respondent and his agent have categorically stated that the account-book was written from time to time by and in the handwriting of Satyamand a copy thereof was sent to the District Collector. The original bookmaintained has been produced by the Court which tallies with the copysent to the Collector. There is no reason to disbelieve the testimony ofthe 1st respondent and his election agent that the book that was maintainedby Satyam, wherein all the expenditure was recorded, was the same asproduced in the court. Judged from any angle, I am of the view that thepetitioner has failed to establish his allegations in Para 10(f). Issues 10and 11 must, thereof, be decided in favour of the 1st respondent.

In view of the above findings, it is clear that the election of the 1strespondent is valid and the petitioner has made out no case for a declara-tion that it is invalid or that the 2nd respondent is entitled to a declarationthat he is duly elected in the election.

The petition is therefore dismissed with costs. Advocate's feeRs. 500/-.

Petition dismissed.1 E.C.—19

ELECTION LAW REPORTS

VOLUME XXXII

INDEX

SUBJECT

Agent—Party whether an agent of the candidate.

Laxminarayan v. Bankatlal X9i(Madhya Pradesh H.C.)

Ballot papers—Inspection, scrutiny and recounting of—Circumstances inwhich Court will order—Particulars to be pleaded.

A.C. Srikantiah v. B. Daddabore Gowda and Ors 52(Mysore H. C. at Bangalore )

Ballot papers —Inspection and recounting of—Prima facie case to be madeout, giving particujars—Returns—irregularities in the filing of—Ifmaterially affects the election.

Cjjts-—warding ofcOjts whra election pstition is dismissed— High Courtif has discretion.

K.T. Kosalram v. Dr. Santhosham. 69(Madras H.C.)

Burden of proof—Petitioner's failure to prove the charge of corrupt practiceon the plea that the facts were within the knowledge of the respondent—whether the burden shifts to respondent—Corrupt practice—whethercan be allowed to raise another kind of corrupt practice under s.123 (6).

Hardnltbliai Karsanbhai Makzvana v. Jesinghbhai Govindbhai Parmarand Anr. . . . . . . . . . I 5 2

(Gujarat H.C. )

Code of Civil Procedure 1908, Order 1, Rules 9 and 10, Order 6, Rule 17—Recrimination statement—application for amendment by returnedcandidate on n;w ground—Rale of Limitation.

JasJibhai Chunibhai Pat el v. Anwerbeg A. Mirja . . . . . 1(Gujarat H . C. at Ahmedabad)

Conduct of Elections Rules, 1961, Rule 55—Requirements of law beforeopening the boxes for counting.

Vasireddy Jagannatham Naidu v. Bagapandu Narayana Appale Naidu andAnother . . . . . . . . . . . . 253

(Andhra Pradesh H.C.)

Conduct of Elections Rules, 1961, Rule 86.

Becharbhai Parmabhai Har]ivandas v. Devjibhai Sadabhai Parmar 2 k '{33(Gujarat H.C. )

Conduct of Elections Rules,? 1961, Rule 93.

282

*r> hamsher Chand v. Parkash Chand and Others 97(Delhi H. G. Himachal Bench)

Constitution of India, Article 19(1)—Office of Profit—Inclusion in thepanel of lawyers for Railway Administration—Continuing obligationto watch cases—If Office of profit—Continuance as professor aftersuperannuation—If still holder of Office of Profit.

Shantibhai v. Mahadeo & Ors. . . . . . . . . 232(Madhya Pradesh H . C.)

Constitution (Scheduled Castes) Order, 1950, ss. 2 and 3, scope of—Caste described in school certificate—whether conclusive evidence ofcaste of candidate.

Narsinhbhai Karsanbhi Makwana v. Jesinghbhai Govindbhai Parmarand Anr. . . . . . . . . . . . T52

(H. C. Gujarat)

Constitution (Scheduled Castes) Order, 1950—Chamar and Mochi—if same caste.

Paras Ram v. Shiv Chand & Ors . 221(H.C. for Punjab and Haryana)

Costs—Awarding of costs when election petition is dismissed—HighCourt if has discretion

.T.Kosalram v. Dr. Sanihosham 69(.H.C. at Madras)

Election Petition—Petition dismissed for default of Court to restorepetition for sufficient cause—Date fixed for considering question re-garding joinder of parties whether a date for hearing—Rule (v),Chapter 2, Madhya Pradesh High Court Manual—Whether applica-ble—Power of Deputy Registrar to fix date.

Babu Lai V. Shiv Sharma and Ors 246(H.C. of M. P. at Indore )

Office of Profit—Inclusion in the panel of lawyers for Railway Adminis-tration—Continuing obligation to watch cases—If Office of Profit-Continuance as professors after superannuation—If still holder ofOffice of Profit

Shantibhai V. Mahadeo & Ors . . . . . . . . 232(Madhya Pradesh H.C. at Indore)

Recount of votes—Order for inspection and recount of votes—requirementsof—Allegations against Returning Officer that he helped the respondent"in all possible manner" and "in various manners"—whether allega-tions are vague—whether sufficient grounds for an order for inspection andrecount of votes.

hamsher Chand v. Parkash Chand and Others 97

Delhi H.C. Himachal Bench at Simla)

ount of votes—when and how far it can be granted.

JasTiabhai Chnnibhai Patel v. Anwerbeg A. Mir)a f, 1(Gujarat H. C. at Ahmedabad),

Rjligious a?^:>!— Appul rails by p;rson holding religious position infavour of candidate whether a religious appeal.

L xminarayan v. Bankatlal *9i

(Madhya Pradesh H.C. )

Representation of the People Act, 1961, ss. 7(b), 9A, 80A, 98, 100 (l)(a)—Respondent's contract with the Government Deparment of Archaeologyon 25th February, 1954—Respondent's election in 1957 to Parliament heldvoid as a contract with Government subsisted on relevant dates—Respondentagain electei t 0 Parliament in 1967—Election Petition alleging that thesame contract continued to subsist on relevant dates in 1967 election—whetherthe previous decision of Tribunal on 1957 election operates as "Res-judicata"against the Respondent in 1967 election—conditions as to when a contractceases to subsist.

Suriya Prasad v. Atamdas (Madhya Pradesh H.C. at Indore) . . . " 6

Representation of the People Acts S. 9A—Contract with Government control-led Corporation—whether a contract within the meaning of S.9A, of the Act—[Supply of molasses to Government controlled Corporation under theprovisions of the Industries (Development and Regulation) Act 65 of1951 and the Molasses Control Order, made by Central GovernmentS.O. 770 of Central Government Gazette dated 8th Aprils 1961]—whetheramounts to a contract—No contract where party has no violation in anymatter relating to the supply but acts wholly under orders of the MolassesController.

Laxminarayan v, Bankatlal (Madhya Pradesh H.C.)191

Reprcsetaation of the People Act, S.77—Return of election expenses—Expen-diture incurred for repairs of motor car used in election campaign—whetherthat expenditure should be included in the return.

Becharbhi Parmabhai Harjivandas v. Devjibhai Sadabhai Parmor (Gujarat H.C.) 133

Representation of the People Act, s.77—Expenses incurred by candidate'sparty or by his supporters out of their own pocket cannot be included inexpenses incurred by candidate.

Laxminarayan v. Bankatlal (Madhya Pradesh H.C.) . . . . . 191

Representation of the People Act, '1951, ss.77, 80, 80A, 81,100 (1) (b),ioo(i)(d)(iv), (iii), 123(1) (A)(b), 123(5)* (6)—Conduct of Elections Rules,1961, Rule 55— Allegations of tampering with ballot boxes—Requirementsof law before opening the boxes for counting—corrupt practices—onus ofproof—Return of election expenses—irregularity in maintaining electionaccounts—whether contravention of Section 123(6)—Election return—in-gredients of.

VasireddyJagannathamNaiduv. Banga-bandu Narayana Appalah Naidu and 253Another (Andhra Pradesh H.C. at Hyderabad)

Representation of the People Act, 1951, s.77—as amended in 1956—The word"incurring" means pecuniary liability on the candidate himself.

Representation of the People Act, 1951, ss.77—83(r)(b). 100 Ci)(b), ioo(l)(d) (ii),loo(l)f:)—Corrupt practice—Reserved seat—Constitution Scheduled CastesOrder, 1950, ss/2 and 3, scope of—Caste described in school certificate—Whether conclusive evidence of caste of candidate— nomination paperprima facie valid—No objection raised—Whether a case of improper accept-ance imder section 100(1) (c) whether principle of estoppel applies—Vehi-cles lent gratuitously to a candidate—Whether reasonable hire chargescould be charged to the election expenses Of candidates-Burden of proof—Petitioner's failure to prove the •harge of corrupt practice on the plea that

28

284

the facts were within the knowledge of the respondent—Whether theburden shifts to respondent—Corrupt practice alleged under sub-section (6)or S.123—Whether proof necessary that excess expenditure incurred withthe consent of the respondent or his agent—Meaning of expression "autho-rised" and "consent" in section 123(6)—Plea of the Petitioner allegingone kind of corrupt practice—Whether can be allowed to raise another kindof corrupt practice under s. 123(6)—Plea of improper acceptance ofnomination of respondent and votes cast in his favour be treated as invalid votes—Whether sustainable.

NarsinhbhaiKarsanbhai Makzvana v. Jesinghbhai Govfndbhai Parntar and Anr.(Gujarat H.C.)

152

Representation of the People Act, 1951, ss. 77, ioo(i)(b). 123(3)—ElectionPosters with pictures of Mahatma Gandhi with Rajaji whether a national"symbol" —Considerations for determining a symbol—quotation fromone of the speeches of Mahatma Gandhi advising that the Congress shouldbe dissolvedjand that of Rajaji "Remove Congress—Rajaji 1967"—whethera corrupt practice under s.i23(3)—conduct of Elections Rules, 1961,Rule 86—Return of election expenses—Expenditure incurred for repairesof motor car used in election campaign—whether that expenditure shouldbe included in the return—High Court's decision in an election petitionunder s. 98 or 99 of the Act—whether High Court has power to review itsdecision.

Becharbki Parmabhai Harjivandas v. Devjibhai Saddbhai Parmar

(Gujarat H.C.) 133

Representation of the People Act, 1951, s. 81(3)—Failure of election petitionerto supply annexures filed with the petition to the respondent—effect—petition whether liable to be dismissed—Contract with Governmentcontrolled Corporation—Whether Fa contract within the meaning of S.9Aof the Act—Supply of molasses to Government controlled Corpo-ration under the provisions of the Industries (Development andRegulation) Act 65 of 1951 and the Molasses Control Order made byCentral Government (S.O. 770 of Central Government Gazette dated 8thApril 1961)—whether amounts to a contract—No contract where party hasno violation in any matter relating to the supply but acts wholly underorders of the Molasses Controller.

Laxminarayan v. Bankatlal (Madhya Pradesh H.C.) 191

Representation of the People Act, r95r, ss.8i(3). 83(i)(a), ioo(i)(d) (iii), 101,102—Conduct of Elections Rules, 1961, Rule 93—Election by a narrow mar-

g i n of votes—Order for inspection and recount of Votes—requirementFof—Allegations against Returning Officer that he helped the respon-Fdem "in all possible manner" and "in various manners"—whether allega-t ions are vague—whether sufficient grounds for an order for inspectionTand recount of votes.

Shamsher Chand v. Parkash Chand and Others ( Delhi High Court) Simla 97

Representation of the People Act, 1951, ss. 86(4), 97, 101, 100(1) (b), 100(1)(d)(iii), 117, 118, 123 (5)—-Code of Civil Procedure. 1908, Order I,Rules 9 and 10, Order 6, Rule 17—Recrimination statement— applicationfor amendment of statement by returned candidate on new ground—Ruleof limitation— Section 100 (1) (b)—implication of—Recounting of votes—When and how far it can be granted. ;

Jashbhai Chmibhai Patel v. Anvierbeg A. Mirja (Gujarat H.C.) . 1

Representation of the People Act, 1951, ss. IO95 n o and in—Petitionerseeking dismissal of election petition on ground he was not pressing itif prayer can be allowed without complying with requirements of ss. 109 toin.

K. Sangameswara Reddy v. A. Ramchandra Reddy (Andhra Pradesh H.C.) . 66

Representation of People Act 1951, s. 123—Announcement by the Chief Minis-ter of measures for relief from land revenue already taken and to be takenby Government—whether amounts to bribery of voters—Candidate how farresponsible for acts of party which sets him up—Party whether an agentof the candidate—Appeal made by person holding religious appeal—Ex-penses incurred by candidate's party or by his supporters out of their ownpocket cannot be included in expenses incurred by candidate.

Laxminarayan v. Bankatlal (Madhya Pradesh H.C.) 191

Representation of the People Act, 1951,—Return of election expenses—Irre-gularity in maintaining election accounts—whether contravention ofSection 123(6)—Election return—ingredients of.

Vasireddy Jagannatham Naidu v. Vengapandu Narayana Appala Naidu and Another(Andhra Pradesh H.C.) 253

Review—High Court's decision in an election petition under s. 98 01 99 ofthe Act—whether High Court has power to review its decision.

Becharbht Purmabhai llarjivandas v. Devjibhai Sadabhai Pwrmar (Guisirr.t ! l.C. 133

Symbol—Considerations for determining.

Shantibhai v. Mahedeo & Ors (Madhya Pradesh H.C.) . . . 232

GIPND—M—lE.C—9-6-72 r.ooo.