{"id":40495,"date":"1960-02-23T00:00:00","date_gmt":"1960-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-balwan-singh-vs-shri-lakshmi-narain-others-on-23-february-1960"},"modified":"2018-05-15T02:01:35","modified_gmt":"2018-05-14T20:31:35","slug":"shri-balwan-singh-vs-shri-lakshmi-narain-others-on-23-february-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-balwan-singh-vs-shri-lakshmi-narain-others-on-23-february-1960","title":{"rendered":"Shri Balwan Singh vs Shri Lakshmi Narain & Others on 23 February, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shri Balwan Singh vs Shri Lakshmi Narain & Others on 23 February, 1960<\/div>\n
Equivalent citations: 1960 AIR 770, \t\t 1960 SCR (3)\t 91<\/div>\n
Author: S C.<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Imam, Syed Jaffer, Sarkar, A.K., Wanchoo, K.N., Shah, J.C.<\/div>\n
           PETITIONER:\nSHRI BALWAN SINGH\n\n\tVs.\n\nRESPONDENT:\nSHRI LAKSHMI NARAIN & OTHERS\n\nDATE OF JUDGMENT:\n23\/02\/1960\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nIMAM, SYED JAFFER\nSARKAR, A.K.\nWANCHOO, K.N.\n\nCITATION:\n 1960 AIR  770\t\t  1960 SCR  (3)\t 91\n CITATOR INFO :\n RF\t    1972 SC1302\t (24)\n R\t    1975 SC 290\t (32)\n R\t    1975 SC 667\t (9)\n RF\t    1976 SC1187\t (7,32)\n R\t    1978 SC 351\t (4)\n R\t    1984 SC1516\t (6)\n D\t    1987 SC1577\t (26,27)\n RF\t    1991 SC1557\t (18)\n\n\nACT:\n       Election Petition-Corrupt Practice--Hiring vehicle for  con-\n       veyance\tof  electors-Pleadings-Particulars of  contract\t of\n       hiring, if necessary-Representation of the People Act, 1951,\n       (43 of 1951), ss. 83(1)(b), 90(3) and 123(5).\n\n\n\nHEADNOTE:\nThe first respondent filed an election petition for an order\nthat  the election of the appellant be declared void on\t the\nground that the appellant had committed the corrupt practice\nunder  s.  123(5) of the Representation of the\tPeople\tAct,\n1951,  in  that he had hired a tractor for  conveying  women\nelectors  from their houses to places of polling  and  back.\nBy  an\tamendment  application\tthe  first  respondent\tgave\nparticulars  about the conveying of voters, but he  did\t not\ngive  any particulars regarding the contract of\t hiring\t nor\ndid  the appellant ask for such particulars.  At  the  trial\nt~he  first  respondent\t led evidence  in  respect  of\tt~he\ncontract of hiring and the appellant raised no objection  to\nthe  relevance\tof  that evidence.   The  Election  Tribunal\ndismissed the petition but on appeal the High Court held the\ncharge\tproved\tand declared the election of  the  appellant\nvoid.\tThe appellant contended that the  election  petition\nought  to  have been dismissed because\tparticulars  of\t the\ncontract of hiring which was an essential ingredient of\t the\ncorrupt practice had not been given.\nHeld,  (per Sinha Lc.  J., jafer Imam, K. N. Wanchoo and  J.\nC.  Shah, jj), that the corrupt practice under\ts~.  I23~(5)\nwas  the  conveying  of electors to  and  from\tthe  polling\nstation\t and  not the contract of hiring.  If  the  election\npetition  gave\tparticulars about the use of a\tvehicle\t for\nconveying of electors to' and from the polling station,\t the\nfailure\t to give particulars of the contract of\t hiring,  as\ndistinguished  from the fact of hiring, did not\t render\t the\npetition defective.  An election petition was not liable  to\nbe\n92\ndismissed  in  limine merely because full particulars  of  a\ncorrupt practice alleged were not set out.  If an  objection\nwas  taken  and\t the  Tribunal was of  the  view  that\tfull\nparticulars  had not been set out the petitioner had  to  be\ngiven  an opportunity to amend or amplify  the\tparticulars.\nIt was only in the event of noncompliance with the order  to\nsupply the particulars that the charge which remained  vague\ncould  be  struck  out.\t Besides, in  the  present  case  no\nmaterial  prejudice  was  caused to  the  appellant  by\t the\nabsence of the particulars of the contract of hiring.\nSarkar\tJ.-Under  s. 123(5) the hiring of  the\tvehicle\t for\nconveyance  of\telectors  was an essential  element  of\t the\ncorrupt practice and it was necessary to give particulars of\nthe  contract  of  hiring.  But the  failure  to  give\tsuch\nparticulars  did  not  render  the  petition  liable  to  be\ndismissed.   Section 83 of the Act did not provide  for\t the\ndismissal of the petition for failure to furnish particulars\nnor did s. 90(3) empower the Tribunal to dismiss a  petition\nfor  non-compliance  with  the provisions  of  s.  83.\t The\nappellant  was entitled to apply for particulars but he\t did\nnot do so; he could not at a later stage complain about\t the\nabsence of the particulars.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 411 of 1959.
\n       Appeal  by special leave from the judgment and  order  dated
\n       9th January 1959 of the Allahabad High Court in First Appeal
\n       No. 448\/A of 1958.\n<\/p>\n
       L.   K. Jha, P. Rama Reddy R. K. Garg and R. Patnaik for the
\n       appellant.\n<\/p>\n
       G.   S. Pathak, G. N. Dikshit, Udai Pratap Singh,
\n       J.   P.\tGoval,\tM.  S.\tGupta  and  P.\tC.  Aggarwala,\tfor
\n       respondent No. 1.\n<\/p>\n
       1960.   February,  23.  The Judgment of Sinha, C.  J.  Imam,
\n       Wanchoo\tand Shah, JJ. was delivered by Shah, J. Sarkar,\t J.
\n       delivered a separate Judgment.\n<\/p>\n
       SHAH J.-Three candidates, Balwan Singh (hereinafter referred
\n       to as the appellant), Ram Dulari and Gaya Prasad,  contested
\n       the  election  to the U. P. Legislative\tAssembly  from\tthe
\n       Akbarpur\t Rural\tAssembly Constituency No. 6,  at  the  last
\n       general elections held in 1957.\t‘The polling of votes  took
\n       place  on February 28, 1957, and the result of the  election
\n       was  declared on March 2, 1957.\tThe appellant  secured\tthe
\n       highest\tnumber of votes and was declared duly  elected.\t  A
\n       voter named Lakshmi Narain-who will hereinafter be  referred
\n       to  as the first respondent-submitted an application to\tthe
\n       Election Commission of India to declare the election of\tthe
\n       appellant Balwan Singh
\n       93<\/span>
\n       void  on the ground inter alia that the appellant ” and\/\t or
\n       his  election agent and\/or other persons with  his  consent,
\n       had  committed  corrupt\tpractices and  the  result  of\tthe
\n       election\t was materially affected by such corrupt  practices
\n       committed  in his interest.  ” In Cl. (f) of para 9  of\tthe
\n       petition, which is material for this appeal, it was  averred
\n       by  the\tfirst  respondent,  that in  villages  set  out\t in
\n       annexure\t D, the appellant, his agents and workers with\tthe
\n       consent\tof the appellant, hired and procured bullock  carts
\n       and  tractors for conveying women electors to and  from\tthe
\n       polling\tstation.   In  Sch.  D, was set out a  list  of\t 30
\n       villages.  This election petition was referred for trial\t to
\n       the District Judge, Kanpur, who was constituted the Election
\n       Tribunal\t for  trying the petition.  The\t appellant  by\this
\n       written\tstatement contended that the averments made in\tCl.\n<\/p>\n
       (f)  of para. 9 were untrue; that neither he nor his  agents
\n       or  workers  had\t ever hired or procured\t bullock  carts\t or
\n       trucks  to convey women voters from the villages set out\t in
\n       Annexure D or any other village to the polling station.\t He
\n       also  submitted that the first respondent had not  disclosed
\n       the  names  of  the  voters  nor\t the  particulars  of\tthe
\n       conveyances,  and that the latter could not in view  of\tthe
\n       defective pleading be permitted to challenge the election of
\n       the  appellant on that charge.  On July 15, 1957, the  first
\n       respondent applied for leave to amplify the particulars\tset
\n       out  in\tthe  various  clauses of  para.\t 9,  including\tthe
\n       particulars  set\t out  in Cl. (f) and prayed  for  leave\t to
\n       amplify\tthe recitals in that clause by\tincorporating  Ann.
\n       D-1 in the petition.  In Ann.  D-1, the first respondent set
\n       out the nature of the vehicles used, the names of the owners
\n       of  the\tvehicles, the names of ‘the  villages  from  -which
\n       women  voters were conveyed at the expense of the  appellant
\n       to  the\tpolling station and back, the hire  paid,  and\tthe
\n       description  of the families to which the women\tvoters\twho
\n       were conveyed belonged. The appellant submitted in rejoinder
\n       that  by his application, the first respondent in  substance
\n       sought  not to amplify the particulars given by him, but\t to
\n       make  allegations about fresh corrupt practices, and  prayed
\n       that  several  clauses  including  Cl. (f)  of  para.  9\t be
\n       deleted.\t On July 29, 1957, the Election Tribunal
\n       94<\/span>
\n       rejected\t the  application  of  the  first  respondent.\t He
\n       observed that:\n<\/p>\n
       ”  Merely saying that the corrupt practice was  followed\t in
\n       the  villages whose list was given in annexure ‘D’ does\tnot
\n       amount  to  giving  particulars\tas  were  required  to\t be
\n       furnished  by  the  aforesaid  Section  83  (1)(b)  of\tthe
\n       Representation of the People Act.  ”\n<\/p>\n
       and directed that certain paragraphs including Cl. (f) para.
\n       9 and Annexure D be struck off.\n<\/p>\n
       Relying\tupon  a\t judgment  of  the  Allahabad  High   Court
\n       delivered  on  September 9, 1957, Mubarak Mazdoor v.  K.\t K.
\n       Banerji\tand  another  (1)  in which,  the  practice  to\t be
\n       followed\t in dealing with allegations of corrupt\t practices,
\n       made  in an election petition, on the ground  of\t vagueness,
\n       was  enunciated the first respondent applied for\t review\t of
\n       that  order.   The Election Tribunal, by\t its  order,  dated
\n       September   13,\t1957,  accepted\t the  plea  of\tthe   first
\n       respondent  for review of the order, and directed  that\tthe
\n       order dated July 29, 1957, beset aside.\n<\/p>\n
       The appellant applied under Art. 227 of the Constitution, to
\n       the  High Court of Judicature at Allahabad, challenging\tthe
\n       correctness  and\t propriety of the order\t ,of  the  Election
\n       Tribunal\t reviewing its order dated July 29, 1957.   By\tits
\n       order  dated  March 6, 1958, the\t High  Court  substantially
\n       confirmed the order passed by the Tribunal.  The High  Court
\n       observed\t that the Tribunal had jurisdiction to\treview\tits
\n       earlier order, and that in the circumstances of the case\t it
\n       was unnecessary to decide whether the order dated  September
\n       13,  1957,  was properly passed, because\t the  order  dated.
\n       July  29, 1957, was ” unjust and improper “, and the  matter
\n       having been brought before it in a proceeding under art. 227
\n       of the Constitution, the High Court could rectify the  error
\n       by  setting aside the earlier order.  Pursuant to the  order
\n       passed  by the High Court, the averments made in Cl. (f)\t of
\n       para. 9 were restored, and Ann.\tD-1 was incorporated in the
\n       petition.\n<\/p>\n
       By  its order dated August 16, 1958, the Tribunal  dismissed
\n       the  petition  holding that the first respondent\t failed\t to
\n       establish the corrupt practices on which
\n       (1)  13 E.L.R. 310
\n       95<\/span>
\n       the petition was founded.  Dealing with the corrupt practice
\n       set  out in Cl. (f) of para. 9, the Tribunal  observed  that
\n       the  corrupt  practice  described  in  s.  123  (5)  of\tthe
\n       Representation of the People Act, lies in the act of  hiring
\n       or procuring vehicles by a candidate or his  agent, and that
\n       this  corrupt practice is not committed merely by  conveying
\n       the  voters, and as the particulars of hiring and  procuring
\n       of the vehicles were not furnished in the petition, and\tthe
\n       evidence adduced by the first respondent to support his case
\n       of hiring or procuring vehicles was unsatisfactory the  case
\n       of  the .first respondent about the commission of a  corrupt
\n       practice by the appellant stood unsubstantiated.
\n       In  an  appeal under s. 116A of the Respresentation  of\tthe
\n       People Act, against the order of the Election.  Tribunal the
\n       High  Court of Judicature at Allahabad set aside\t the  order
\n       and  declared the election of the appellant void.  The  High
\n       Court  held  that  the petition was  defective  in  that\t it
\n       omitted\tto set out the date and place of the hiring of\tthe
\n       tractor,\t which was proved to have been used  for  conveying
\n       voters  to the polling station, but no prejudice was  caused
\n       to the appellant as a result of that omission.  In the  view
\n       of  the\tHigh  Court  the testimony  of\tA.  P.\tMalik,\tthe
\n       Presiding Officer at Naholi polling station, corroborated by
\n       exh. 22, a petition submitted on the date of the polling\t by
\n       one  Raghuraj  Singh,  agent of\tRam  Dulari,  a\t contesting
\n       candidate, and further supported by the evidence of  witness
\n       Kalika\tPrasad\t and  another\twitness\t  Raghuraj   Singh,
\n       established that voters were conveyed in a trailer  attached
\n       to a tractor, at the instance of the appellant to the Naholi
\n       polling station, and that the evidence of one Hanuman  Singh
\n       established  the\t contract of hiring the\t tractor  used\tfor
\n       conveying  voters  to the polling station.  The\tHigh  Court
\n       accordingly  held  that\tthe  appellant\thad  committed\tthe
\n       corrupt practice of hiring a vehicle for conveying voters to
\n       the  polling station.  Against the order passed by the  High
\n       Court  declaring\t the election of the appellant\tvoid,  this
\n       appeal has by special leave been filed.\n<\/p>\n
       Section\t83(1)(b) of the Representation. of the People  Act,
\n       as amended provides that an election petition
\n       96<\/span>
\n       shall set forth full particulars of any corrupt practice the
\n       petitioner  alleges,  including\tas  full  a  statement\t as
\n       possible\t of the names of parties alleged to have  committed
\n       such  corrupt  practice\tand  the  date\tand  place  of\tthe
\n       commission of each such practice.  Section 123 sets out what
\n       shall be deemed to be corrupt practices for the purposes\t of
\n       the Act, and by Cl. (5) thereof, as it stood at the material
\n       date, it was in so far as it is relevant, provided:
\n       ” The hiring or procuring, whether on payment or\t otherwise,
\n       of  any vehicle or vessel by a candidate or his agent or\t by
\n       any  other person for the conveyance of any  elector  (other
\n       than the candidate himself, the members of his family or his
\n       agent) to or from any polling station provided under section
\n       25 or a place fixed under sub-section (1) of section 29\tfor
\n       the poll.”\n<\/p>\n
       Neither in the petition as originally filed nor as  amended,
\n       the  date and place of hiring the tractor which was  alleged
\n       to have been used for conveying the voters, and the names of
\n       the persons between whom the contract of hiring was settled,
\n       were  set  out.\t The  question\twhich  then  falls  to\t be
\n       determined is : Whether the election petition was liable\t to
\n       be rejected because it did not set forth particulars of\tthe
\n       date  and place of hiring the vehicle alleged to\t have  been
\n       used in conveying voters?  In the opinion of the High  Court
\n       the corrupt practice described in s. 123(5) being the hiring
\n       or  procuring  of  a vehicle for\t conveying  voters  to\tthe
\n       polling\tstation, in the absence of a detailed statement\t as
\n       to  the\ttime  and place of the\thiring,\t the  petition\twas
\n       defective.   In\tso opining, the High Court relied  upon\t an
\n       earlier\tdecision of that Court, Madan Lal v.  Syed  Zargham
\n       Haider  and  others  (1).   In  that  case,  Bhargava,\tJ.,
\n       delivering the judgment of the Court, observed:
\n       “…… under s. 123(5) of the Representation of the  People
\n       Act,  a\tcorrupt practice consists in the act of\t hiring\t or
\n       procuring  certain types of vehicles by a candidate  or\this
\n       agent  or  by  any other person for the\tconveyance  of\tany
\n       elector to or from any polling station.\tA corrupt, practice
\n       is, therefore,
\n       (1)  13 E.L.R. 456,
\n       97<\/span>
\n       committed  not  by  conveying the voter but by  the  act\t of
\n       hiring  or  procuring  the conveyance.\tIn  clause  (b)\t of
\n       section\t83(1),\tan election petitioner is required  to\tset
\n       forth full particulars of the corrupt practice including\t as
\n       full  a statement as possible of the 1 names of the  parties
\n       alleged to have committed such corrupt practice and the date
\n       and  place  of the commission of each  such  practice.\tThe
\n       language used in this provision of law requires the  setting
\n       forth  of the full particulars of the corrupt  practice\tand
\n       specially mentions at leapt three particulars which must\t be
\n       given.\tThese are the names of the parties alleged to  have
\n       committed  the corrupt practice, the date when  the  corrupt
\n       practice\t was committed and the place of the  commission\t of
\n       the corrupt practice.”\n<\/p>\n
       Not  the\t contract  of hiring but the  fact  of\thiring\tfor
\n       conveying voters to and from the polling station is declared
\n       by  s.  123(5) a corrupt practice.  A  petition\twhich  sets
\n       forth  the  particulars\tabout  the use\tof  a  vehicle\tfor
\n       conveying  voters  to  and from the  polling  station,  with
\n       details\tas  to the time and place coupled with\tas  full  a
\n       statement  as  possible\tin support of  the  plea  that\tthe
\n       vehicle was hired or procured by the candidate or his  agent
\n       or   another   person  substantially   complies\t with\tthe
\n       requirement  of\ts.  83(1)(b).\tIn  considering\t whether  a
\n       corrupt\tpractice  described  in\t s.  123(5)  is\t committed,
\n       conveying of electors cannot be dissociated from the  hiring
\n       of  a  vehicle.\tThe corrupt practice being  the\t hiring\t or
\n       procuring  of a vehicle for the conveyance of the  electors,
\n       if full particulars of conveying by a vehicle of electors to
\n       or  from\t any  polling  station are given,  s.  83  is  duly
\n       complied\t with, even if the particulars of the  contract\t of
\n       hiring,\tas distinguished from the fact of hiring,  are\tnot
\n       given.  Normally, the arrangement for hiring or procuring  a
\n       vehicle,\t is within the special knowledge of the parties\t to
\n       that  agreement\tand it is difficult to assume that  it\twas
\n       intended to require the petitioner in an election dispute to
\n       set  out\t the  particulars  of  facts  within  the   special
\n       knowledge  of the other party, and expose the petition to  a
\n       penalty\tof  dismissal  if those particulars  could  not\t be
\n       given.  If particulars in support of the
\n       13<\/span>
\n       98<\/span>
\n       plea of the vehicle being hired or procured by the candidate
\n       or  his\tagent or by another person was used  for  conveying
\n       voters  to or from the polling station are set out,  failure
\n       to  set\tout  particulars  of  the  contract  of\t hiring\t or
\n       arrangement  of\tprocuring  will\t not  render  the  petition
\n       defective.\n<\/p>\n
       By  The Representation of the People Act, 195 1, as  amended
\n       by  Act 27 of 1956, a penalty of dismissal of a petition\t or
\n       the  striking out of the plea of a corrupt  practice  merely
\n       because\tparticulars in that behalf are not set out  is\tnot
\n       imposed.\t  By  s.  90, cl. (5) of the Act  the  Tribunal\t is
\n       authorised  to  allow particulars of  any  corrupt  practice
\n       alleged in the petition, to be amended or amplified in  such
\n       manner  as may, in its opinion, be necessary for ensuring  a
\n       fair  and effective trial of the petition.  By s.  90(1)\t of
\n       the   Act  every\t election  petition  is,  subject  to\tthe
\n       provisions of the Act and Rules made thereunder to be  tried
\n       as nearly as may be in accordance with the procedure  appli-
\n       cable under the Civil Procedure Code to the trial of  suits:
\n       and  for\t failure  to furnish  particulars  after  being\t so
\n       ordered\tbut  not  before  the Tribunal\tmay  strike  out  a
\n       defective plea.\tThe practice to be followed in cases  where
\n       insufficient particulars of a corrupt practice are set forth
\n       in  an election petition is this.  An election  petition\t is
\n       not  liable to be -dismissed in limine merely  because  full
\n       particulars  of a corrupt practice alleged in the  petition,
\n       are  not\t set  out.  Where an objection\tis  raised  by\tthe
\n       respondent  that\t a  petition  is  defective  because   full
\n       particulars of an alleged corrupt practice are not set  out,
\n       the  Tribunal  is bound to decide whether the  objection\t is
\n       wellfounded.   If  the Tribunal upholds\tthe  objection,\t it
\n       should  give an opportunity to the petitioner to\t apply\tfor
\n       leave  to  amend or amplify the particulars of  the  corrupt
\n       practice\t alleged;  and in the event of\tnoncompliance  with
\n       that  order  the Tribunal may strike out the  charges  which
\n       remain  vague.  Insistence upon full particulars of  corrupt
\n       practices  is  undoubtedly of paramount\timportance  in\tthe
\n       trial  of  an election petition, but if the  parties  go\t to
\n       trial despite the absence of full particulars of the corrupt
\n       practice alleged, and evidence of the contesting parties\t is
\n       led on the plea
\n       99<\/span>
\n       raised  by the petition, the petition cannot  thereafter\t be
\n       dismissed  for want of particulars, because the\tdefect.\t is
\n       one of procedure and not one of jurisdiction of the Tribunal
\n       to  adjudicate upon the plea in the absence of  particulars.
\n       The  appellate court may be justified in setting\t aside\tthe
\n       judgment\t of the Tribunal if it is satisfied that by  reason
\n       of  the absence of full particulars, material prejudice\thas
\n       resulted; and in considering whether material prejudice\thas
\n       resulted failure to raise and press the objection about\tthe
\n       absence\tof particulars before going to trial must be  given
\n       duo weight.\n<\/p>\n
\tAssuming  that\tin  the case before us,\t the  petition\twas
\n       defective because particulars as to the persons between whom
\n       the  contract of hiring was entered into, and the  date\tand
\n       place  thereof,. have not been set out, the High Court,\twas
\n       right  in holding that no material prejudice was\t occasioned
\n       thereby.\t  In  the  written statement  to  the  petition\t as
\n       originally  filed,  it  was  not\t expressly  contended  that
\n       because of the absence of particulars as to the names of the
\n       persons between whom the contract of hiring took place,\tand
\n       the date and place of the contract, the appellant was unable
\n       to  meet\t the  charges made against  him.   Even\t after\tthe
\n       petition\t was amended, no such objection was raised  by\tthe
\n       appellant.   Before  the\t Tribunal, at the  hearing  of\tthe
\n       argument, a plea that the petition was defective, because of
\n       lack of particulars relating to the names of the persons who
\n       entered into the contract of hiring, and the time and  place
\n       thereof\twas  apparently\t raised.   But\tall  the   evidence
\n       relating\t to the hiring and the time and place thereof,\twas
\n       without\tobjection admitted on the record.  It is  not  even
\n       suggested  that because of the absence of  the  particulars,
\n       the appellant was embarrassed in making his defence, or that
\n       he  could not lead evidence relevant to the plea of  corrupt
\n       practice\t set up by the first respondent.  We are  therefore
\n       unable  to hold that any material prejudice  was\t occasioned
\n       because of the absence of those particulars in the petition.
\n       The  order of the Tribunal rejecting the application of\tthe
\n       first respondent for amplification of the particulars of the
\n       corrupt practice alleged in the election
\n       100<\/span>
\n       petition was, for reasons already set out, erroneous; and in
\n       that  view the question whether the High\t Court\tmisdirected
\n       itself  in  holding  itself bound, at  the  hearing  of\tthe
\n       appeal,\tby  its\t earlier judgment  delivered  on  the  writ
\n       petition, does not fall to be determined.\n<\/p>\n
       Counsel for the appellant urged that in any event, the  High
\n       Court  was not justified in disagreeing with the\t considered
\n       judgment of the Tribunal on questions purely of appreciation
\n       of  evidence.  But this appeal has been filed  with  special
\n       leave granted under Art. 136 of the Constitution.  It is the
\n       settled\tpractice  of this Court to grant  leave\t to  appeal
\n       under Art. 136 only if exceptional and special circumstances
\n       exist, or that substantial and grave injustice has been done
\n       and  the\t case presents features of  sufficient\tgravity\t to
\n       warrant\ta review of the decision appealed against.   Merely
\n       because\tthe appeal has been admitted by special leave,\tthe
\n       entire  case is not at large, and the appellant is not  free
\n       to   contest  the  findings  of\tfact  of  the\tsubordinate
\n       tribunals.   Only  those points on which special\t leave\tmay
\n       initially be granted, can be urged at the final hearing; and
\n       normally,  special leave will not be granted by\tthis  Court
\n       under  Art  136(1) of the Constitution on a  plea  of  error
\n       committed  by  the  Courts  below  in  the  appreciation\t of
\n       evidence.\n<\/p>\n
       This  would  be\tsufficient to justify  us  in  refusing\t to
\n       entertain  the  argument\t advanced by the  counsel  for\tthe
\n       appellant.   We may, however, observe that even on a  review
\n       of  the evidence, we are satisfied that the High\t Court\twas
\n       right in its conclusion.\t There was before the Tribunal\tthe
\n       evidence\t of Mr. A. P. Malik, the Presiding Officer  at\tthe
\n       Naholi  polling station, who testified that he had  seen\t on
\n       the  day\t Of Polling a tractor at a distance of 100  to\t150
\n       yards  from the polling booth.  The witness stated  that\t be
\n       did  not\t remember  having seen any flag or  poster  on\tthe
\n       tractor.\t The witness, however, had made a note in his diary
\n       about an application submitted to him by Raghuraj Singh.\t P.
\n       W. 30.  A copy of that application has been produced, and it
\n       is  recited in that application that a tractor had  come\t to
\n       the polling booth and was parked near “the line of  voters”;
\n       that  some  persons  a majority of  whom\t were  women,  were
\n       sitting on the
\n       101<\/span>
\n       tractor;\t that  a red flag was hoisted and  posters  of\tthe
\n       socialist  party were pasted on the tractor; and\t that  some
\n       men  and women, who came on the tractor, were placed in\tthe
\n       queue of voters.\t There was also the evidence of.   Raghuraj
\n       Singh, P.W. 38, a voter in the constituency.  He stated that
\n       he had seen the tractor belonging to Chandra Bahadur  Pandey
\n       of village Chapargatha, near the polling station; that a red
\n       flag  was hoisted and posters were pasted over  the  tractor
\n       with the symbol of a banyan tree which was the emblem of the
\n       party  of the appellant.\t He further stated that one  Kalika
\n       Prasad and some female members of his family had come on the
\n       trailer\tand  Radhey Shyam, an agent of the  appellant,\thad
\n       taken  all these voters and had given them slips\t of  paper.
\n       Kalika  Prasad was also examined and he stated that  he\tand
\n       his wife and several other villagers had gone to the  Naholi
\n       polling\tstation to exercise their franchise on the  trailer
\n       attached\t to  the tractor; that a red flag was  hoisted\tand
\n       posters\twere pasted on the trailer; and that there  was\t on
\n       the  posters the legend that votes be cast in favour of\tthe
\n       appellant.  It is established by unimpeachable evidence that
\n       a tractor was brought to Naholi Polling Station on the  date
\n       of  the polling.\t The Tribunal accepted the evidence of\tMr.
\n       Malik,  but  rejected the testimony of  other  witnesses\t on
\n       somewhat\t fanciful theories.  The Tribunal observed that\t at
\n       the  material time no tractor was brought near  the  polling
\n       booth, and if one was brought, the owner of the tractor\tmay
\n       possibly have given a free lift to the voters to the polling
\n       station\tand  back.  The Tribunal also  suggested  that\tthe
\n       tractor\tmay  have been brought without the consent  of\tthe
\n       appellant  or his agents.  But the fact that a  tractor\twas
\n       brought\tto the polling station, is clearly  established\t by
\n       the evidence of Mr. Malik.  That on the tractor was  carried
\n       a red flag of the party of the appellant, is established\t by
\n       the  evidence of the two witnesses, Raghuraj Singh, P.W.\t 30
\n       and  Raghuraj  Singh P.W. 38, and also by  the  evidence\t of
\n       Kalika Prasad.  It is also established on the evidence  that
\n       on the tractor, were displayed posters bearing the symbol of
\n       a banyan tree, which was the election emblem of the party of
\n       the appellant at the election.  There was no
\n       102<\/span>
\n       sufficient  reason for discarding this  testimony.   Witness
\n       Hanuman\tSingh  P.W. 56 deposed that he was present  at\tthe
\n       time of the settlement of the bargain of hiring the  tractor
\n       belonging to Chandra Bahadur for conveying voters.  The High
\n       Court accepted that evidence and we do not think, judged\t in
\n       the  context of the other evidence that the High Court,\twas
\n       in error in so doing.\n<\/p>\n
       The appeal, therefore, fails and is dismissed with costs.
\n       SARKAR, J. I agree that this appeal fails.\n<\/p>\n
       The appellant had been declared elected at an election.\tThe
\n       first  respondent  filed\t an  election  petition\t under\tthe
\n       Representation  of  the\tPeople Act, 1951  to  to  have\tthe
\n       appellant’s  election declared void.  Among other things\t it
\n       was said that the appellant had committed a corrupt practice
\n       which  was described in the petition substantially in  these
\n       words:  In  villages mentioned in annexure D  the  appellant
\n       hired  a\t tractor for conveying women  electors\tfrom  their
\n       houses to places of polling and back.\n<\/p>\n
       The appellant applied to have this allegation struck out\t as
\n       it  did\tnot contain sufficient particulars of  the  corrupt
\n       practice\t alleged.   The\t respondent  in\t his  turn   sought
\n       permission  to give particulars of this corrupt practice\t by
\n       amending his petition by the substitution of a new  annexure
\n       to  his\tpetition  marked DI in the place  of  the  existing
\n       annexure\t D.  The  Election Tribunal  first  made  an  order
\n       refusing\t the, amendment and striking out the allegation\t as
\n       desired\tby  the\t appellant.  Later it  made  another  order
\n       reviewing  its  earlier\torder and  thereby  cancelled  that
\n       order.\tBy  this order it directed the restoration  of\tthe
\n       allegation struck out and the substitution of annexure D\t by
\n       annexure DI.\n<\/p>\n
       The appellant moved the High Court at Allahabad under  arts.
\n       226 and 227 of the Constitution against the latter order\t of
\n       the Tribunal.  The High Court held that the Tribunal had the
\n       power to review any order made by it and that the order made
\n       on review allowing the amendment was correct.  It also  held
\n       that if the Tribunal had no power of review, the High Court
\n       103<\/span>
\n       being  itself seized of the matter, would be deemed to  have
\n       set aside the first order of the Tribunal and made an  order
\n       allowing\t the amendment.\t The appellant did not appeal  from
\n       this order of the High Court.\n<\/p>\n
       The  parties  then went to trial before the  Tribunal.\tThe
\n       appellant  led his evidence without any objection as to\tthe
\n       petition\t being defective for want of any particulars.\tThe
\n       Tribunal took the view that the corrupt practice alleged had
\n       not  been proved and dismissed the petition.  On appeal\tthe
\n       High  Court held that the corrupt practice had  been  proved
\n       and  set\t aside the election of the appellant.\tHence  this
\n       appeal.\n<\/p>\n
       It  is  said  that the election petition\t should\t have  been
\n       dismissed  because  sufficient particulars  of  the  corrupt
\n       practice\t alleged had not been given in the  petition.\tThe
\n       corrupt practice alleged is of the kind mentioned in s.\t123
\n       (5) of the Act which is in these words:\n<\/p>\n
       The hiring or procuring, whether on payment or otherwise, of
\n       any\t  vehicle\t or\t  vessel\tby\t  a
\n       candidate …………………… for the conveyance of any
\n       elector …………… to or from any polling station.
\n       It  is  contended  that\tthe hiring of  the  vehicle  is\t an
\n       essential element of the corrupt practice mentioned in  this
\n       section.\t I am leaving out of consideration the procuring of
\n       a  vehicle  because that is not the case here.  It  is  said
\n       that the petition must, therefore, state the particulars\t of
\n       the date and place of the contract of hiring and the parties
\n       to  it.\tReference is made to s. 83 of the Act where  it\t is
\n       provided\t that, ” An election petition shall set forth  full
\n       particulars  of\tany corrupt practice  that  the\t petitioner
\n       alleges,\t including as full a statement as possible  of\tthe
\n       names of the parties alleged to have committed such  corrupt
\n       practice\t and the date and place of the commission  of  each
\n       such corrupt practice.” The question thus arises whether the
\n       particulars of the parties to the contract of hiring and the
\n       date when, and the place where, it had been made should have
\n       been given.\n<\/p>\n
       The  respondent\tdoes not deny that the particulars  of\tthe
\n       contract of hiring had not been stated in the
\n       104<\/span>
\n       petition.   According to him the corrupt practice  mentioned
\n       in s. 123 (5) is not committed by the contract of hiring but
\n       by  the\tconveyance  of the electors  in\t a  hired  vehicle.
\n       Hence,  he  says that no question as  to\t these\tparticulars
\n       arise&
\n       In my view the appellant’s contention is wellfounded.  Under
\n       the section the hiring of the vehicle for the conveyance\t of
\n       electors\t is the corrupt practice.  It is of the essence\t of
\n       this corrupt practice that the vehicle must have been hired,
\n       that  is\t to say, a contract for the hiring of  the  vehicle
\n       must  have been made.  I am unable to imagine how a  vehicle
\n       can  be hired without a contract.  Therefore it seems to\t me
\n       that particulars of that contract should be given.
\n       I am also unable to appreciate the respondent’s\tcontention.
\n       It  seems  to me that to say that the  corrupt  practice\t is
\n       committed  by the conveyance of electors in a hired  vehicle
\n       is the same thing as saying that electors had been  conveyed
\n       by  a  vehicle which had been hired, that is, a\tvehicle\t in
\n       respect of which a contract of hiring had been made.  Simple
\n       conveyance  of  electors in a vehicle is\t not  enough.\tThe
\n       vehicle must be a hired vehicle.\t Hence there is no  corrupt
\n       practice\t unless\t the hiring of the vehicle,  that  is,\tthe
\n       contract of hire in respect of it is established.
\n       Whether a simple contract of the hiring of a vehicle for the
\n       conveyance  of  electors without actual conveyance  of  them
\n       would  amount  to a corrupt practice or not, is\ta  question
\n       that  does not arise in this case.  But it seems to me  that
\n       whatever view is taken of that question, that would not make
\n       the contract of hiring any the less an essential element\t of
\n       the corrupt practice described in s. 123(5).
\n       In  my  view  therefore the appellant was  entitled  to\tthe
\n       particulars  the\t want  of  which  he  now  complains.\tThe
\n       question then is what is the effect of the failure to supply
\n       these  particulars ? I am unable to agree that the  petition
\n       was thereupon liable to be dismissed.  It has not been shown
\n       to us that the Act provides for such dismissal.\tSection\t 83
\n       does  not  say  that on failure to  furnish  the\t prescribed
\n       particulars  the petition shall be dismissed.  On the  other
\n       hand, s.\t 90(3)\tof  the Act provides that, ”  The  Tribunal
\n       shall
\n       105<\/span>
\n       dismiss an election petition which does not comply with\tthe
\n       provisions of section 81, section 82 or section 117.  ” This
\n       section\tdoes not include s. 83.\t It therefore seems  to\t me
\n       that  the appellant was not entitled to a dismissal  of\tthe
\n       petition for want of the particulars.\n<\/p>\n
       The  appellant  was  certainly entitled\tto  apply  for\tthe
\n       particulars.  I conceive he would have such a right under s.
\n       83 and also s. 90(1) of the Act which made the provisions of
\n       the Code of Civil Procedure applicable to a trial before\t an
\n       Election\t Tribunal, in the view that I have taken, that\tthe
\n       contract\t of hiring is an essential element of  the  corrupt
\n       practice’ mentioned in s. 123(5) of the Act.  The  appellant
\n       however made no such application.  Instead he went to  trial
\n       and  led evidence without making any grievance that  he\twas
\n       hampered\t in  his defence for want of the  particulars.\t He
\n       cannot  at a later stage complain about the absence  of\tthe
\n       particulars.  It is unnecessary to consider what would  have
\n       happened if upon the appellant’s application the\t respondent
\n       had been directed to furnish the particulars and had  failed
\n       to do so, for no such order had been made.\n<\/p>\n
       It  only remains for me to say that it is not open  for\tthe
\n       appellant  to  contend now that the Tribunal  was  wrong\t in
\n       reviewing   its\torder.\t The  High  Court   rejected   that
\n       contention in the order made on the application under  arts.
\n       226 and 227 of the Constitution.\t For greater safety it also
\n       made   an  order\t allowing  the\tamendment  sought  by\tthe
\n       respondent.   The  High\tCourt’s decision  not  having  been
\n       questioned by the appellant by an appeal, is binding on him.
\n       He must therefore accept the position that the amendment\t of
\n       the  petition  was  proper.  I may also state  that  if\tthe
\n       amendment had not been properly allowed that would not  have
\n       made  any difference.  The only result would have been  that
\n       some more particulars.of the corrupt practice alleged  would
\n       have  been  wanting.  For the reasons  earlier  stated  this
\n       would  not  have\t entailed  a  -dismissal  of  the  election
\n       petition.\n<\/p>\n
       14<\/span>
\n       106<\/span><\/p>\n
       The  only  other\t point that was argued at  the\tbar  was  a
\n       question\t of  fact,  namely, whether  the  corrupt  practice
\n       alleged\thad  been proved.  On that point I  am\tin  perfect
\n       agreement with the view expressed by my learned brothers and
\n       have nothing to add.\n<\/p>\n
\t\t\t    Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shri Balwan Singh vs Shri Lakshmi Narain & Others on 23 February, 1960 Equivalent citations: 1960 AIR 770, 1960 SCR (3) 91 Author: S C. Bench: Sinha, Bhuvneshwar P.(Cj), Imam, Syed Jaffer, Sarkar, A.K., Wanchoo, K.N., Shah, J.C. PETITIONER: SHRI BALWAN SINGH Vs. RESPONDENT: SHRI LAKSHMI NARAIN & OTHERS DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-40495","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShri Balwan Singh vs Shri Lakshmi Narain & Others on 23 February, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-balwan-singh-vs-shri-lakshmi-narain-others-on-23-february-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Balwan Singh vs Shri Lakshmi Narain & Others on 23 February, 1960 - 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