PETITIONER: SHEODHAN SINGH Vs. RESPONDENT: MOHAN LAL GAUTAM DATE OF JUDGMENT: 24/01/1969 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. BACHAWAT, R.S. CITATION: 1969 AIR 1024 1969 SCR (3) 417 1969 SCC (1) 408 CITATOR INFO : E&D 1974 SC 505 (4) E 1975 SC1012 (11) R 1976 SC 744 (34) R 1984 SC 135 (22) ACT: Election petition-Whether abates on dissolution of legislature-Presentation by Advocate's clerk in petitioner's presence-If proper presentation. HEADNOTE: The respondent's election to the U.P. Legislative Assembly in February, 1967, was challenged by the appellant in an election petition ,on various grounds including allegations of corrupt practices. The respondent raised two preliminary objections before the High Court namely, (i) the petition was not maintainable as it was not properly presented; and (ii) the petition ceased to be maintainable as a result of dissolution of the U.P. Legislative Assembly by virtue of the President's proclamation of April 15, 1968, under article 356 (1) of the Constitution issued during the pendency of the election petition before the High Court. These preliminary objections were rejected by the High Court, which also dismissed the petition on the merits. On an appeal to this Court, HELD : (i) The High Court was right in holding that the requirements of law as to the presentation of a petition were fully satisfied as the election petition was presented to the Registry by an Advocate's Clerk in the presence of the petitioner. The petitioner in substance, though not in form, himself presented the petition. (ii) There was no force in the contention that the petition had become infructuous in view of the dissolution of the Legislative Assembly. [418H] The question for consideration was not only the validity of the election but also the allegation of corrupt practices which, if established, would involve the respondent incurring certain electoral disqualifications. It is clear from the provisions of Chapters III and IV of Part VI of the Representation of the People Act, 1951, that the contest in an election petition is really between the constituency and the person or persons complained of. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for these provisions is to ensure to the extent possible that the persons who offend the election law, are not allowed to avoid the consequences of their misdeeds. [421G] . The law relating to withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not it was not possible to travel outside the provisions contained in that Chapter. The Act does not provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. [42 1 D] Carter and Anr. v. Mills 9, Common Pleas p. 117; distinguished; Ghasi Ram V. Dal Singh and Others [1968] 3 S.C.R. 102; followed. (iii) On the facts, the High Court had rightly dismissed the petition. 418 JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1564 of
1968.
Appeal under s. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated May 23, 1968-of
the Allahabad High Court in Election Petition No. 40 of
1967.
Danial Latifi, S. J. Hyder, Rajindra Singh and M. I.
Khowaja, for the appellant.
Veda Vyasa, K. K. Jain, H. K. Puri, G. N. Dikshit, R. N.
Dikshit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the
respondent.
The Judgment of the Court was delivered by
Hegde, J. This appeal under s. 116A of the Representation,
of the People Act, 1951 arises from the decision in Election
Petition No. 40 of 1967 on the file of the High Court of
Judicature at Allahabad. In that petition the appellant
challenged the election of the respondent to the U.P.
Legislative Assembly from Iglas Constituency in the general
election held in February 1967. In that election the
appellant, the respondent and four others contested. The
respondent secured 10,705 votes more than the appellant.
Other candidates secured less votes than the appellant. The
appellant challenged the election of the respondent on
various grounds, most of which were given up either in the
trial court or in this Court. The High Court dismissed the
election petition. Against that order the appellant has
come up in appeal.
Before going into the merits of the appeal, it is necessary
to deal with the preliminary objections to the appeal, taken
by the respondent. The first objection taken was that the
petition was not maintainable as it was not properly
presented. The second objection was that the petition
ceased to be maintainable as a result of the dissolution of
the U.P. Legislative Assembly as per the President’s
Proclamation of April 15, 1968 under Art. 356(1) of the
Constitution. That Proclamation was issued during the
pendency of this election petition before the High Court.
The High Court rejected both those contentions but those
contentions were again pressed for acceptance at the hearing
of this appeal.
The High Court has found as a fact that the election
petition was presented to the registry by an advocate’s
clerk in the immediate presence of the petitioner.
Therefore, in substance though not in form, it was presented
by the petitioner himself. Hence the requirement of the law
was fully satisfied.
We are unable to accept the contention of Mr. Veda Vyasa,
learned Counsel for the respondent that the petition must be
held
419
to have become infructuous in view of the dissolution of the
assembly. In this proceeding we are considering the
validity of the election of the respondent and not whether
he is continuing as a member. If the contention of the
appellant that the respondent was guilty of corrupt
practices during the election is found to be true then not
only his election will be declared void, he is also liable
to incur certain electoral disqualifications. The purity of
elections is of utmost importance in a democratic set-up.
No one can be allowed to corrupt the course of an election
and get away with it either by resigning his membership or
because of the fortuitous circumstance of the assembly
having been dissolved. The public are interested in seeing
that those who had corrupted the course of an election are
dealt with in accordance with law. That purpose will stand
defeated if we accept the contention of Mr. Veda Vyasa.
The election petitions in this country are solely regulated
by statutory provisions. Hence unless it is shown that some
statutory provision directly or by necessary implication
prescribes that the pending election petitions stand abated
because of the dissolution of the Assembly, the contention
of the respondent cannot be accepted.
Section 80 provides that no election shall- be called in
question except by an election petition presented in
accordance with the provisions of the Act. Section 81 (1)
says that an election petition calling in question any
election may be presented on one or more of the grounds
specified in sub-s. (1) of S. 100 and s. 101 to the High
Court, by any candidate at such election or any elector.
Section 84 prescribes that a petitioner may, in addition to
claiming a declaration that the election of all or any of
the returned candidate is void, claim a further declaration
that he himself or any other candidate has been duly
elected. Chapter III of Part VI deals with the trial of
election petitions. Section 86(1) prescribes that the High
Court shall dismiss an election petition which does not
comply with the provisions of s. 81 or s. 82 or s. 117.
Section 87(1) says that subject to the provisions of the Act
and of any rules made thereunder, every election petition
shall be tried by the High Court, as nearly as may be, in
accordance with the procedure applicable under the Code of
Civil Procedure, 1908 to the trial of suits. Section 97 (1)
provides for filing recrimination.
Section 98 reads :
“At the conclusion of the trial of an election
petition the High Court shall make an order
(a) dismissing the election petition; or
(b) declaring the election of all or any of
the returned candidates to be void; or
420
(c) declaring ‘ the election of all or any
of the returned candidates to be void and the
petitioner or any other candidate to have been
duly elected.”
Section 99(1) is important for our present purpose. It says
“At the time of making an order under s. 98 the High Court
shall also make an order :
(a) where any charge is made in the petition
of any corrupt practice having been committed
at the election, recording-
(i) a finding whether any corrupt practice
has or has not been proved to have been
committed at the election and the nature of
that corrupt practice; and
(ii) the names of all persons, if any, who
have been proved at the trial to have been
guilty of any corrupt practice and the nature
of that practice ………… (emphasis
supplied).
Chapter IV of Part VI deals with withdrawal and abatement of
election petitions. Section 109 stipulates that an election
petition may be withdrawn only by the leave of the High
Court and where an application for withdrawal is made notice
thereof fixing a date for the hearing of the application
shall be given to all other parties to the petition and
shall be published in the official gazette. Section 112
says :
(1) An election petition shall abate only on
‘the death of a sole petitioner or of the
survivor of several petitioners.
(2) Where an election petition abates under
sub-s.
(1) the High Court shall cause the fact to
be published in such manner as it may deem
fit.
(3) Any person who might himself have been a
petitioner may, within fourteen days of such
publication, apply to be substituted as
petitioner and upon compliance with the
conditions, if any, as to security, shall be
entitled to be so substituted and to continue
the proceedings upon such terms as the High
Court may deem fit.”
Section 1 1 6 reads:
“If before the conclusion of the trial of an
election petition, the sole respondent dies or
gives notice that he does not intend to oppose
the petition or any of the respondents dies or
gives such notice and there is no other
respondent who is opposing the petition, the
High Court
421
shall cause notice of such event to be
published in the Official Gazette, and
thereupon any person who might have been a
petitioner may, within fourteen days of such
publication, apply to be substituted in place
of such respondent to oppose the petition, and
shall be entitled to continue the proceedings
upon such terms as the High Court may think
fit.”
From the above provisions it is seen that in an election
petition, the contest is really between the constituency on
the one side and the person or persons complained of on the
other. Once the machinery of the Act is moved by a
candidate or an elector, the carriage of the case does not
entirely rest with the petitioner. The reason for the
elaborate provisions noticed by us earlier is to ensure to
the extent possible that the persons who offend the election
law are not allowed to avoid the consequences of their
misdeeds.
The law relating to withdrawal and abatement of election
petitions is exhaustively dealt with in Chapter IV of Part
VI of the Act. In deciding whether a petition has abated or
not we cannot travel outside the provisions contained in
that Chapter. There is no provision providing for the
dropping of an election petition for any reason other than
those mentioned therein. The act does not provide for the
abatement of an election petition either when the returned
candidate whose election is challenged resigns or when the
assembly is dissolved. As the law relating to abatements
and withdrawal is exhaustively dealt with in the Act itself
no reliance can be placed on the provisions of the Civil
Procedure Code nor did the learned Counsel for the
respondent bring to our notice any provision in the Civil
Procedure Code under which the election petition clan be
held to have abated.
In support of his contention that the petition has abated
great deal of reliance was placed by Mr. Veda Vyasa on the
decision in ,Carter and Anr. v. Mills(1). Therein a pending
election petition was allowed to be withdrawn on the
dissolution of the Parliament. In doing so Coleridge, C.J.
observed thus :
“I am of opinion that this application should
be ‘granted. The Queen having been pleased to
dissolve Parliament, of which fact the Court
must take judicial cognizance, a case has
arisen not expressly provided for in the Act;
and under these circumstances we must guide
our proceedings by the old parliamentary
practice on the subject. It is common
knowledge, that according to the old practice
the petition abated or dropped in such a case.
We think the result is the same now, and that
we therefore have authority, and ought to make
an order for the return of the deposit.”
(1) 9, Common Pleas p. 117.
422
Keating, J., the other judge agreed with the learned Chief
justice. We do not know the facts of that case. It is not
known whether the election of the returned candidate was
challenged on the ground of any corrupt practice. The
decision in that case rested solely on ‘the old
parliamentary practice on the subject’. We have no such
practice in this country. That being so that decision is of
no assistance for our present purpose. In Ghasi Ram v. Dal
Singh and Others(1) this Court proceeded on the basis that
the dissolution of the assembly does not put an end to the
election petition. For the reasons already mentioned we
think that the High Court was right in its conclusion that
the election petition had not abated.
This takes us to the merits of the case. As mentioned
earlier the election of the respondent was challenged on
numerous grounds. On the pleadings as many as 10 issues
were raised. At present we are concerned only with issues
Nos. 7, 8 and 10.
The only question arising under issue No. 7 is whether Exh.
7, was got printed and published by the respondent. So far
as the question of getting it prepared and printed is
concerned, the evidence principally relied on is that of
P.W. 16 Mohan Singh. We are in agreement with the High
Court that Mohan Singh is a wholly unreliable witness.
According to him he was a signatory to that pamphlet and he
took active part in getting it printed which means that he
was a party to the publication of false statement. He
appears to have been on the side of the respondent at one
stage and walked over to the side of the appellant at a
later stage, not uncommon during election time. His
evidence does not carry conviction. On his own showing he
can be a stooge.
In support of the evidence of P.W. 16 reliance was placed on
Exh. D-23, one of the vouchers submitted by the respondent
along with his return of election expenses. That voucher
relates to the printing of two pamphlets on behalf of the
respondent. It shows that one of the pamphlet mentioned
therein was printed on both sides of the paper. Exh. 7 is
also printed on both sides of a paper. From that we are
asked to conclude that the voucher in question refers to
printing of pamphlets like Exh. 7. Such an inference would
be a far fetched one. According to the respondent D-23
relates to pamphlets similar to Exh. A-154 and A-155. The
High Court has not accepted that contention. The basis on
which the High Court rejected that contention does not
appear to us to be correct. It is not necessary to go into
that question as we are of opinion that there is no
satisfactory evidence to show that any entry in Exh. D-23
relates to pamphlets similar to Exh. 7. We are also unable
to attach any weight to Exh. 3, the complaint given by the
appellant to the Returning Officer. The appellant
(1) [1968] 3S.C.R 102.
423
has considerable experience of filing election petitions.
This was. the third election petition filed by him. Even as
the election was going on he appears to have been preparing
for the election petition. The evidence of P.W. 7, Narayan
Singh Bodh throws a: great deal of light on this aspect.
Large number of witnesses were examined to show that either
respondent himself distributed pamphlets like Exh. 7 or he
got them distributed through others. Their evidence has
been considered by the High Court in detail and rejected.
We have been taken through that evidence and we were not
impressed by the same. We are satisfied that the High Court
has correctly assessed, that evidence.
Generally, this Court accepts the findings of fact arrived
at by the High Court. Election petitions are tried by
experienced’ judges of the High Court. They had the benefit
of observing the witnesses when they gave evidence. Hence
their appreciation. of evidence is entitled to great weight.
We have not been shown any good reason for departing from
that rule.
Now coming to issue No. 8 which relates to the complaint of’
the appellant that the respondent, his agents and workers
had hired several vehicles for conveyance of the voters to
and from the polling stations. In the petition, particulars
of as many as twelve vehicles which were said to have been
used for conveying voters. were given. But the appellant’s
learned Counsel confined his arguments to three vehicles
only i.e. Truck No. USK 503, Bus. No. RJL 9729 and a
Tractor.
So far as Truck No. USK 503 is concerned, the witnesses. who
were examined are P.Ws. 37, 40, 41, 45 and 48. Among them
the most important witness is P.W. 45 Sukhbir Singh. He
claims to have worked for the respondent and transported
voters to the polling station in the truck in question.
Further he deposed’ that he hired that truck from “Achaltar
truck operators’ Union” Hathras. It is now definitely
established and that evidence was. not challenged before us
that in Hathras there was no concern bearing that name.
Hence it is obvious that the evidence of this’ witness is
wholly false. We are unable to accept the contention of Mr.
Latifi, learned Counsel for the appellant that the name of
concern in question was wrongly mentioned by the witness due
to some confusion. The fact that P.W. 45 at one stage
worked for the respondent is not of much significance.
Changing sides during election is nothing unusual. Once the
evidence of P.W. 45 is proved to be false very little basis
remains for the evidence of’ other witnesses who spoke to
the user of a truck in question. It is common knowledge
that in the trial of election petitions there would be no
dearth of witnesses’. The faction spirit generated during
election projects itself during the trial of election
petition
424
that follows. Much value cannot be attached to the
complaint given by the appellant’s agent to the polling
officer (Exh. 18). That document has several suspicious
features which were noticed ,by the High Court.
Now coming to the tractor, its registration No. was not
spoken to by any witness. There is no evidence about its
hiring. The witnesses who- speak to its user are P.Ws. 33
and 34. The evidence of P.W. 33 is extremely vague. He
deposed that a worker,of the respondent Sita Ram carried the
voters from the villages to the election booth. He is
unable to give the details of the tractor. P.W. 34 is an
omnibus witness. The evidence relating to owner ,of that
tractor is conflicting. The evidence of P.Ws. 33 and 34
does not carry conviction. It was rightly not relied on by
the High Court.
Now coming to the hiring of Bus RJL 9729, according to the
petition that bus was owned by one Babu Lal of Jaipur. That
Babu Lal has not been examined. The evidence of P.Ws. 30,
31 and 32 who speak to the conveyance of the voters in that
bus to the polling stations is far from satisfactory. Their
evidence did not ,commend itself to the trial court. We
agree with the High Court that it is unsafe to rely on their
evidence.
This takes us to issue No. 10 which relates to the complaint
of the appellant that the election expenses incurred by the
respondent had exceeded the prescribed limit. In this
connection various items of expenses said to have been
omitted in the return were particularised in the petition
but most of them were not pressed at the hearing.
The evidence relating to the expenses said to have been
incurred in procuring and hiring vehicles for conveying
voters to the polling; booths has to be rejected in view of
our earlier findings. Large number of witnesses were
examined to show that considerable quantity of wheat, atta,
sugar and ghee had been purchased by the respondent for
feeding his workers and the expenses incurred for that
purpose had not been included in the return of expenses.
Their evidence has not been believed by the trial court.
‘We have been taken through the evidence and we do not think
it is creditworthy nor are we able to place any reliance on
the documents produced in that connection.
In the result this appeal fails and the same is dismissed
with costs.
R.K.P.S. Appeal dismissed.
425