judgement:
Civil Appeal No. 783 of 1975.
Appeal by special leave from the judgment and order dated the 9th April 1975 of the Allahabad High Court in Application No. A. 7 ion Petition No. 22 of 1974.
R K. Garg, section C. Agarwala and V. J. Francis, for the appellant.
D. Mukherjee and Pramod Swarup, for respondent No. 1.
The Judgment of the Court was delivered by SARKRIA J.
We have already announced our order in this appeal on the 2nd May 1975.
We now proceed to give our reasons therefor.
193 The appellant, Shri Ram Autar Singh Bhadauria.
Respondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2 to 11 contested election, as rival candidates from U. P. Legislative Assembly Constituency (No. 293), Sarsaul.
The poll was held on 24 2 1974.
The appellant was declared elected.
The total number of votes polled was 72735.
Out of these, the appellant secured 23626 and Respondent 1, his nearest rival polled 23604, the margin being of 22 votes only.
Respondent 1 filed an election petition challenging the election of the appellant inter alia on the ground (vide para 9(1) of the petition) that the result of the election so far as the returned candidate was concerned materially affected by improper reception and rejection of votes and mistakes in counting.
It was alleged: "para 11(a).
That in a number of polling stations, the instruments supplied to the electors for the purposes of stamping on or near the symbol of the candidate to whom he intends to vote, was seal of Presiding officer which was meant to be put on the reverse of the ballot papers.
Since the electors were supplied these instruments by the Presiding officer for marking the ballot papers the electors indicated their choice by marking in the column of the petitioner with that instrument.
There were 41 such ballot papers which were clear votes for the petitioner that were illegally rejected by the Presiding officer on the ground that the electors ' choice was expressed through the instrument meant for the Presiding officer for stamping on the reverse side of the ballot papers.
Particulars of such ballot papers are given in Schedule I attached to the Election Petition.
(b) That in a number of polling stations, the electors were issued ballot papers along with the counter foil.
While issuing the ballot papers to the electors, the polling staff .
deputed there did not detach the counter foil and the electors after putting seal mark put the ballot papers along with the counter foil in the ballot box.
It was due to the mistake of the staff deputed at the polling station.
The number of some of such ballot papers are 100976, 100977, 100978, 100979, 100980, 100982, 100983 and 100984.
These ballot papers clearly indicate the votes for the petitioner but they were illegally rejected on the ground that the identity of the elector can be established.
The reason on which it was rejected was wholly illegal.
The particulars of such bal lot papers are given in Schedule IT attached to this election petition.
" In his written statement, the successful candidate stated: "65(1).
That the contents of paragraph No. 9(1) of the Election Petition are not admitted.
The result of the election in so far as the answering respondent is concerned has not been materially affected by any improper reception or 194 rejection, or by wrong arithmetical and clerical mistake in counting of votes and/or counting and acceptance of void votes in favour of the answering respondent.
In fact no improper reception or rejection or arithmetical mistake or any clerical mistake was done in favour of the answering respondent 16.
That the contents of paragraph No. 11 (a) of the petition are wrong and denied.
It is wrong to say that 41 ii ballot papers mentioned in Schedule I or any ballot paper counted in favour of the respondent No. 1 by marking with the seal of the Presiding officer.
It is admitted that the ballot papers on which unauthorised seal was found were rejected.
Some of these rejected ballot papers may be of the petitioner but most of them were of respondent No. 1 and other contesting candidates.
That the contents of para 11 (b) of the petition and Schedule II are not admitted as stated.
Only on one polling station, due to the mistake of the Presiding officer some bal lot papers were issued along with their counter foils.
The counterfoils did contain the name and signature or thumb impression of the voters attached to the ballot paper.
In these circumstances such ballot papers were rejected by the Returning officer.
It is submitted that such ballot paper were in respect of all the candidates including the respondent No. 1.
Further, no such objection was raised at the time of counting by the Petitioner or his election agent and/or his counting Agent.
That no different criteria was adopted by the Returning officer in the matter of acceptance or rejection of ballot papers and the respondent No. 1 maintains that many ballot papers in which the Electors expressed their choice in favour of the respondent No. 1 by putting the seal of the Presiding officer as supplied by the Presiding officer, were wrongly rejected during the counting by the Returning officer.
" Respondent 1 did not adduce any evidence in support of the allegations extracted above.
But on 24 2 1975, he made an application before the High Court, praying for scrutiny and recount of the ballot papers.
The allegations in para 11(a) and (b) of the election petition were reiterated in the application.
The appellant in reply filed a counter affidavit which was substantially a reproduction of his reply in the written statement.
The learned Judge of the High Court by his order, dated 9 4 1975, allowed that application and directed scrutiny and recount of ballot papers on the view that: (a) The appellant "was declared to have won by a very small margin of only 22 votes".
195 (b) "lt is not in dispute that a number of ballot papers were rejected by the Returning officer as invalid be cause the polling staff of a particular polling station forgot to detach the counter foils of a number of ballot papers.
As the counter foils contained the identity of the voters, the ballot papers were rejected for no fault of the voters, but because of negligence or incompetence on the part of the polling staff".
(c) "It is also the admitted case of the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Com mission but with the marking or stamping instrument issued by the Election Commission for the use of the Presiding officers.
This happened because instead of the instrument which the polling staff should have given to a voter to put the mark showing for which candidate he wanted to vote, the polling staff by mis take handed over to the voter the stamp meant for the Presiding officer. to affix on the back of the ballot paper.
" (d) lt "The petition, the written statement, the recriminatory petition filed by the respondent (now appellant) and the reply thereto filed by the petitioner would show that this is a case in which both parties have pleaded that there was wrong reception, rejection and u counting of votes.
" It is against this order, dated 9 4 75 of the High Court that this appeal has been filed by the returned candidate after obtaining special leave.
Having heard learned Counsel on both sides, we are or opinion that the order made by the High Court for a general scrutiny and re count of all the ballot papers cast at the election, was not justified.
The returned candidate had not categorically and specifically admitted the allegations made in the election petition with regard to the improper rejection of the ballot papers.
This will be clear from a comparative reading of Paragraph 11 (a) and (b) of the petition and the answers thereto given in the written statement, which have been reproduced above verbatim.
It is to be noted that the reply of the returned candidate to the contents of the aforesaid sub paras (a) and (b) starts with a denial or a non admission.
Such a traverse is then followed by qualified and vague admissions that some ballot papers were rejected because they were not marked with the instrument meant for this purpose, or bore the names or signatures of the voters on the counter foils that remained attached to them, owing to the mistake of the Presiding Officer.
After having thus replied to the petitioner 's allegations, the returned candidate said that most of these rejected 196 ballots had been cast for him and not for the petitioner.
This was a counter assertion which was not, strictly speaking, relevant to the case set up in the petition.
Mr. Mukherjee, learned Counsel for Respondent 1 (election petitioner) has drawn our attention to the "Additional Pleas" in the written statement of the appellant.
According to Counsel it were these pleas, more than anything else, that led to the finding "that this is a case in which both parties have pleaded that there was wrong reception, rejection and counting of votes.
" We will discuss this aspect of the case a little later.
At this place it will be sufficient to say that since the returned candidate in his written statement did not specifically and fully admit all the facts alleged in Paragraph 11 (a) and (b) of the petition, the Court could not dispense with proof of those facts altogether.
For instance, in reply to the facts alleged in Para 11 (a) of the petition, the returned candidate did not admit that the instrument with which such rejected ballot papers were found stamped, was supplied by the Presiding officer.
On the contrary, the reply to sub para (a) begins with a clear traverse: "that the contents of paragraph No. 11 (a) of the petition are wrong and denied".
This denial notwithstanding, the learned Judge appears to have erroneously assumed this fact as admitted by the returned candidate.
The parties being at variance on this material point, this issue of fact was required to be proved by the party alleging lt.
Now, we come to the finding of the learned Judge as to the wrong reception and rejection of votes being a common ground between the parties.
We have catalogued this finding as ground (b) which is one of the four pillars on which the impugned order rests.
This ground, according to Mr. Mukherji, draws particulars support from the "Additional Pleas" set up in the written statement.
We do not propose to over burden this judgment by reproducing all that has been stated in Paragraph 47 to 56 of the written statement under the caption "Additional Pleas".
It will be sufficient to extract some of it by way of sample : "47.
That the Returning officer did not allow any improper acceptance or rejection against the interest or the election petitioner, rather mistakes of improper acceptance and rejection of ballot papers were done against the interests of the answering respondent.
That many ballot papers which bore the major portion of the stamp mark within the column of the Respondent No. 1 were wrongly rejected by the Returning officer at the time of counting.
That as in the case of the Election Petitioner the Ballot Papers in favour of the Respondent No. 1 with which counterfoils were attached were rejected.
In case the Hon 'ble Court finds that similar ballot papers in favour of 197 the election petitioner are to be accepted, the ballot papers in favour of the Respondent No. 1 in the same condition should also be accepted and counted as valid votes in favour of the Respondent No. 1.
That many ballot papers containing votes in favour of the Respondent No. 1. were wrongly put in the bundles of the votes in favour of the Election Petitioner.
That the bundles of ballot papers in favour of the Respondent No. 1 in fact contained more than SO ballot papers and there was thus wrong counting.
I say that the Respondent No. 1 filed application before the Returning officer on 27 2 74 but the Returning officer without considering the submissions made therein rejected it and did not order for recount.
" If we may say so with respect, in taking these Additional Pleas into account, the learned Judge completely misdirected himself.
He overlooked the fact that these Pleas were irrelevant to and beyond the scope of the enquiry into the allegations in the election petition falling under section 100(1)(d)(iii) of the Representation of the people Act, 1951.
These "Additional Pleas" were in the nature of recriminatory` pleas which could not be investigated in this election petition.
As clarified by this Court in Jabar Singh vs Genda Lal(1), the scope of the inquiry in a case under section 100(1) (d) (iii) is to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant for deciding whether the election of the returned candidate had been materially affected or not.
At such an enquiry the burden is on the petitioner to prove his allegations.
In fact section 97(1) of the Act has no application to a case falling under section 100(1) (d) (iii).
The scope of the enquiry is limited for the simple reason that what the clause requires to be considered, is, whether the election of the returned candidate has been materially affected and nothing else.
It is true that in a composite election petition wherein the petitioner claims not only that the election of the returned candidate is void but also that the petitioner or some other person be declared to have been duly elected, section 97 would also come into play and allow the returned candidate to recriminate and raise counter pleas in support of his case, "but the pleas of the returned candidate under section 97 have to be tried after a declaration has been made under section 100 of the Act.
The first part of the enquiry in regard to the validity of the election of the returned candidate has therefore to be tried within the narrow limits prescribed by section 100(1) (d) (iii) and the latter part of the enquiry governed by section 101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the please taken by him in his recriminatory petition; but even in such a case the 198 enquiry.
necessary while dealing with the dispute under section 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type, the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election.
Moreover, in the instant case, it is a matter of controversy to be decided as to whether the recriminatory petition filed by the appellant is within time or not.
The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes.
The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate.
They were beyond the scope of the enquiry into the petitioner 's case which (as set up in Para 11 of the petition) fall under section 100(1)(d)(iii) of the Act Further, the High Court did not properly apply its mind to the question, whether on the facts alleged in Para 11 (a) and (b) of the petition assuming the same to be correct a prima facie case for improper rejection of The 50 ballot papers referred to therein, had been made out.
In other words, if the defects in these SO ballot papers were attributable to the mistakes or negligence of the Presiding officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56(2) of the Conduct of Election Rules, 1961 Rule 56 runs thus: "(1) Subject to such general or special directions, if any, as may be given by Election Commission in this behalf, the ballot papers taken out of all boxes used in a constituency shall be mixed together and then arranged in convenient bundles and scrutinised.
(2) The returning officer shall reject a ballot paper (a) if it bears any mark or writing by which the elector can be identified, or (b) if, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose, or (c) if votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or 199 (e) if it is a spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design different from the serial numbers, or, as the case may be, design, or the ballot papers authorised for use at the particular polling station, or (h) if it does not bear (both, the mark and the signature) which it should have borne under the provisions of sub rule (1) of rule 38; Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a Presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect; Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(3) to (5): . .
(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Clauses (a) and (b) of Rule 56(2) are referable to Rule 38 which requires every elector to whom ballot paper has been issued under Rule 38 to maintain secrecy of voting and "to make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote.
" Rule 38 is also relevant.
This Rule requires every ballot paper and the counterfoil attached thereto to be stamped on the back by the Presiding officer with such distinguishing mark as the Election Commission may direct.
Every such ballot paper before it is issued is required to be signed in full on its back by the Presiding officer.
Sub rule (2) requires that at the time of issuing of ballot paper, the Polling officer shall on its counterfoil record the electoral roll number of the elector and obtain his signature or thumb impression.
The object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections.
Their requirements are therefore mandatory, and a defect arising from their non observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisions to Rule 56(2).
200 In the case of 41 ballot papers mentioned in para 11(a), what happened was that instead of marking those ballot papers with the instrument supplied for this purpose by the Election Commission the electors concerned stamped it with the instrument meant to be used exclusively by the Presiding officer for stamping the counterfoils and lacks of the ballot papers.
The Court had to apply its mind as to whether these facts by themselves were sufficient to attract Rule 56 2 (b) ? This question would further resolve itself into two issues: (i) Was the stamping instrument with which these electors "marked" the ballot papers, given to them by the Presiding officer cr any member of his staff ? (ii) If so, could these ballot papers be deemed to have been marked with "the instrument supplied for the purpose" within the contemplation of Rules 38 and 56(2)(b) ? The first one was an issue of fact, the determination of which would depend on evidence.
The second issue would arise only on proof of tile first, and involve the question of interpreting and applying the phrase "instrument supplied for the purpose".
This phrase is capable two interpretations one narrow and literal, and the other liberal and contextual.
Without there being any proof of the fact that the stamping instrument was handed over to the 41 electors by the Presiding officer/Polling officer, a final expression of opinion on our part would be academic and premature.
It will be sufficient to reiterate that the provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential.
Once it is established that the fault specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no option left with the Returning officer but to reject the faulty ballot paper.
We would further make it clear that even if any such defect as is mentioned in clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning officer or Polling Officer, the Returning officer would be bound to reject the ballot paper on the ground of such defect.
That such is the imperative of Rule 56(2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56(2) which gives a limited discretion in the matter of rejection to the Returning officer only where the defect is of a kind mentioned in clauses (g) and (h) of this sub rule.
In the view that such Rules relating to the conduct of elections, are required to be observed strictly, we are fortified by the ratio of this Court 's decision in Hari Vishnu Kamath vs Syed Ishaque and ors.(1) In That case, voters for the House of the People in Polling Stations Nos. 316 and 317 in Sobhapur were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People.
The total number of votes so polled was 443, out of which, 62 were in favour of the then appellant, 301 in favour of the first respondent therein and the remaining in favour of the other candidates.
Rule 47(1)(c) of the Conduct of the Election Rules, 1951 provided that "a ballot paper contained in a ballot box shall be rejected if it bears 201 any serial number or mark different from the serial number or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found, was used.
" The election petitioner contended that in accordance with this rule, the ballot papers received at the two polling stations, not having the requisite mark; should have been excluded.
The returned candidate pleaded that the Returning officer had rightly accepted 301 votes be cause Rule 47 was directory and not mandatory.
It was contended that the electors were not at fault and that the wrong ballot papers were issued due to the lapse on the part of the Returning officer and that to reject the votes of the electors for the failure of the Polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them, and that a construction which involve such a consequence should not be adopted.
This Court repelled the contention in these terms: "If the word 'shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also.
There is another reason which clinches the matter against the 1st respondent.
The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with.
How is this rule to be worked when the Rule provides that a ballot paper shall be rejected ? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision is mandatory.
" The above observations are apposite.
Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.
It was contended by the learned Counsel for the respondent before us, that the Provisos to sub rule (2) of Rule 56 are only illustrative and not exhaustive, and consequently, the principles underlying these Provisos would give a discretion to the Returning Officer not to reject a ballot paper on the ground of a defect caused by mistake or negligence of the Presiding officer/or Polling officer, notwithstanding that such defect is one mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2).
This contention is not tenable.
The word 'shall ' used in the opening Part of sub rule (2) read in the context of the general scheme of this Rule shows that it is mandatory.
Sub rule (5)puts the matter beyond doubt.
It says that "every ballot paper which is not rejected under this sub rule shall be counted as one valid vote".
Rule 56 is a complete code by itself.
The Provisos to Sub rule (2) are exhaustive of the kinds of defects which the Returning officer may condone, if those defects are caused by the mistake or failure of the Polling Staff.
The first Proviso is in terms limited to defects falling under Clause 202 (g) or (h).
Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).
The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 56(2).
This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2).
Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2).
The High Court has not at all addressed itself any of these questions.
Times out of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered.
Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice.
In the case in hand.
the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph).
There was no foundation in the petition for ordering a general recount.
Nor could the Additional Pleas in the written statement of the returned candidate be taken into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of the Act.
We have said enough.
We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh vs Ch.
Shiv Ram(1).
"A democracy runs smooth on the wheels of periodic and pure elections.
The verdict at the polls announced by the Returning Officers leads to the formation of Governments.
A certain amount of stability in the electoral process is essential.
If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument.
Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy.
The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots.
This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopen 203 ing of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step." In the result we allow the appeal and set aside the order of the High Court for general scrutiny and recount of the ballot papers.
However, the High Court will have to determine, (after taking such evidence as may be necessary) inter alia, (i) whether.
the instrument which was used for marking the 41 votes (referred to in the election petition) was supplied to the voters by the Presiding officer or any other member of his Polling Staff.
If on evidence adduced, the learned Judge finds this issue in the affirmative, the further question to be considered would be (ii) whether such supply would answer the legal requirement of "instrument supplied for the purpose" in Rule 56(2) (b).
If both these issues (i) and (ii) are answered in the positive, then and then only he may proceed to inspection and recount of these votes mentioned in the petition.
Similarly, after considering the legal questions indicated above, he may order recount of the 9 votes alleged to have counterfoils attached thereto.
There appears to be no justification for ordering a general inspection of the ballots on the facts of this case.
The learned Judge shall proceed with the trial of the election petition in the light of what has been said above.
Costs to abide the event in the High Court.
P.H.P. Appeal allowed.

summary/full:
The appellant and respondent No. 1 and other candidates contested the election from U.P. Legislative Assembly Constituency (No. 293), Sarsaul.
The appellant secured 23626 votes and respondent No. 1 polled 23604, the margin being of 22 votes only.
Respondent No. 1 filed an Election Petition challenging the election of the appellant inter alia on the ground that the result of the election so far as the returned candidate was concerned was materially affected by improper reception and rejection of votes and mistakes in counting.
It was alleged that 41 ballot papers were rejected on the ground that the electors ' choice was expressed through the instrument meant for the Presiding officer for stamping on the reverse side of the ballot papers.
the particulars of those ballot papers were given in Schedule annexed to she Election Petition.
It was further alleged that some ballot papers were issued along with the counter foil and were therefore rejected.
The appellant in his written statement denied the allegations and stated that the result of the election was not materially affected.
Respondent No. I did not adduce any evidence in support of his allegations mentioned above but made an application before the High Court for scrutiny and recount of the ballot papers.
The High Court allowed the application and directed scrutiny and recount of ballot papers on the following grounds: (a) The appellant woo by a very small margin of 22 votes (b) It was not disputed that a number of ballot papers were rejected because the polling staff forgot to detach the counter foils on a number of ballot papers.
(c) It is also the admitted case or the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Commission but with the marking or stamping instrument issued for the use of the Presiding officers.
(d) lt is clear from the petition, written statement and recriminatory petition filed by the respondent that both parties pleaded that there was wrong reception rejection and counting of votes.
The appellant filed an appeal by special Leave against the said order of the Appellate Court.
Allowing the appeal , ^ HELD : (1) The returned candidate had not categorically and specifically admitted the allegations made in the Election Petition with regard to the improper rejection of the ballot papers.
[195F G] (2) Since the appellant did not admit the allegations, the court could not dispense with proof of those facts altogether.
[196A C] (3) The Additional pleas set up in the written statements were irrelevant to beyond the scope of the enquiry into the allegations in the Election Petition falling under section 100(1)(d)(iii) of the Representation of the People Act, 1951.
These Additional pleas were in the nature of recriminatory pleas 192 which could not be investigated in this Election Petition.
The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else.
[197C F] (4) The pleas of the returned candidate under section 97 have to be tried after declaration has been made under section 100 of the Act.
[197F G] The learned judge as in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes.
[198B C] The High Court failed to apply its mind to the question, whether if the facts alleged in the petition were assumed to be correct a prima facie case for improper rejection of the so ballot papers was made out.
Rule 38 of the Conduct of Election Rules, 1961, requires every ballot paper and the counter foil attached thereto to be, stamped on the back by the Presiding officer with such distinguishing mark as the Election Commission might direct.
Rule 56 requires every elector to whom ballot paper has been issued to maintain secrecy of voting and making a mark on the ballot paper with the instrument supplied the purpose by the Election Commission.
The object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of election.
The requirements, are, therefore.
mandatory and a defect arising from their non observance inexorably entails rejection of the defective ballot papers.
[198D F; 199G H] The High Court had to apply its mind as to whether these facts by themselves were sufficient to attract rule 56.
The High court had also to apply its mind as to whether the facts alleged in the petition, if correct, would fall within the mischief of rule 56.
[200B; 202A B] Times out of number, this Court has pointed out that a general scrutiny and recount of the ballot papers should not be lightly ordered.
Before making such as extraordinary order, the Court must be satisfied that all the material facts.
have been pleaded and proved and that such a course is imperatively necessary in the interests of justice.
In the present case.
there was no foundation in the petition for ordering a general recount.
Nor could the Additional Pleas in the written statement of the returned candidate be taken into account for making an order for general inspection of the ballots [202C E] The order of the High Court was set aside.
[203B] The High Court was directed to decide the questions mentioned in this judgment and, thereafter, decided the application of the Respondent No. 1 for recount of the specific ballot papers [203B E]


judgement:
Civil Appeals Nos. 775 and 1107 of 1975.
(From the Judgment and order dated the 9 4 19.75 of the Allahabad High Court in Election Petition No. 24 of 1974) N. section Bindra.
K. C. Agarwala.
R. D. Uppadhaya and M. M. L. Srivastava, for the appellant in CAs 775/75.
Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107/75.
N. section Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L. Srivastava, for the respondent in CAs 1107/75.
Yogeshwar Prasad, Miss Rani Arora and Bir Bahadur Singh, for respondents 1 and 2 in CAs 775/75.
The Judgment of the Court was delivered by SHINGHAL, J.
Civil Appeal No. 775 of 1975 has been filed under section 116A of the Representation of`People Act, l95l, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975.
The appellant has been.
held guilty of committing a corrupt practice under section 123(S) of the Act.
and has been disqualified for a period of six years.
this election was challenged on several grounds by an election petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.
There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti DaI (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No. 2 of the Congress (R) party who secured 31,008 votes.
Appeal No.1167 of 1975 is by election petitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners.
337 The allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant, his workers, agents and supporters, with his consent hired and procured vehicles for the free conveyance of electors.
A concise statement of the mate rial facts in that respect was made in paragraph 12 of the election petition.
Particulars of the vehicles used for the free conveyance of the electors were given in Schedule III of the petition.
The appellant denied the allegation and pleaded in his written statement that none of the vehicles mentioned in Schedule III was either, procured or hired by him or his workers and agents with his consent for the purpose of carrying voters to and from the polling stations and that no such vehicle was "used for the purposes of carrying electors to and from the polling stations on the date of poll".
It was also stated that the allegations contained in sub paragraphs 12(a), 12(b) and 12(c) were not the facts required by section 83.
They were totally vague and lack ed in material particulars, and were liable to be struck off.
The High Court considered that and the other objections and stated in its order dated August 30, 1974, in regard to the objection that the names of the persons who procured or hired vehicles were not given in paragraph 12 or Schedule III, that the counsel for the election petitioner had undertaken to furnish the names.
The election tioners furnished better particulars by adding paragraph 12(d) stating that the names of the persons who hired or procured the vehicles by which the electors were "carried free of cost from their houses to the polling station" on the date of election by respondent No. 1 were given in Schedule III(l).
They save the percentage and residence of the persons named in Schedule III, as also particulars and names of the persons who hired and procured vehicles for the free conveyance of the electors, and the names of the owners of the vehicles.
An objection was then taken that such an amendment was not permissible.
The High Court rejected that objection by its order dated October 10, 1974, except that the names of two new persons were not allowed to be inserted in Schedule V, with which we are not concerned.
The High Court framed several issues, including issue No. 2 which was as follows "2.
Whether the respondent No. 1 himself, or his workers and agents with his consent, hired or procured vehicles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and , .
thereby the respondent No. 1 committed corrupt practice.
" After recording the evidence of the parties, the High Court recorded its finding as follows. "My answer on issue No. 2 accordingly is that the respondent No. 2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, Jaganpur and Tigain polling stations and further that the respondent No. 1 thereby committed a corrupt practice under section 123(5) of the R.P. Act." 338 It was in view of that finding that the election petition was allowed with costs, the election of the appellant was declared void, and he was disqualified as aforesaid.
That is how appeal No. 775 has arisen The other appeal No. 1 107 has been filed by election petitioner.
Prakash Chandra, as he feels aggrieved against the High Court 's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press that appeal.
We have therefore only Balwan Singh 's appeal for consideration.
It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinatter referred to as the appellant, that the High Court ought not to have entertained the election petition as it was not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings even though that was the clear requirement of section 83(1)(c) of the Act.
We asked the counsel to refer us to any such objection of the appellant in the triaI court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974.
That paragraph however relates to the objection regarding the defective verification of the affidavit accompanying the election petition, which is a different matter.
That is in fact the subject matter of Mr. Bindra 's second argument, and we shall deal with it separately.
The fact remains that an objection regarding the alleged defective verification of the election petition was not taken in the High Court, and it was not a point at issue there.
There is therefore no justification for allowing it to be raised here.
It is in fact significant that even though an objection was taken on November 27, 1974 in regard to the verification of the affidavit, no such objection was taken about the verification of the main election petition.
It was vaguely stated that verification of the affidavit and verification of the Schedule (i.e. Schedule III) were "at variance", but that was a different matter.
In so far as the verification of the affidavit is concerned, it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No.25 of the Conduct of Election Rules, 1961) as true to the election petitioner 's information received from the persons mentioned in it.
It was therefore quite in order.
It may be mentioned that although the High Court examined the objections of the appellant on two occasions, no objection was taken or pressed for its consideration in regard to the verification of the main election petition, its schedules or the affidavits.
An objection was raised in the appellant 's application dated November 27, 1974 that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court 's order of the same date on the grounds that it was a belated objection, and the allegation of corrupt practice could not be deleted merely because of the defective form of the affidavit.
No issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal.
It has next been argued by Mr. Bindra that the High Court committed a serious error of law in allowing the election petition to be 339 amended, after the expiry of the period prescribed for its presentation, even though it did not allege that any vehicle was used for the free conveyance of any elector and did not specify the names of the persons who were alleged to have hired or procured the vehicles.
It has been urged that as the facts alleged in the petition did not bring out all the ingredients of the corrupt practice, there was no cause of action for trial.
Reference in this connection has been made to Samant N. Balakrishna etc.
vs George Fernandez and Others(1).
Hardwari Lal vs Kamal Singh,(2) Rai Narain vs Smt.
Indra Nehru Gandhi and another(3) and Vatal Nagaraj vs R. Dayanand Fagar.(4).
By the amendment in question, the election petitioners had applied for insertion of a new sub paragraph (d) in paragraph 12 of the petition as follows, "The names of the persons who hired or procured the vehicles by which the electors were carried free of cost from their houses to polling station on the date of election by respondent No. 1, his workers and agents with his consent are given in schedule III(i) of the election petition.
" Schedule III(i) gave the particulars and names of the persons who hired and procured the vehicles for the free conveyance of electors.
The High Court took note of the law that a fresh corrupt practice could not be alleged by means of an application to amend the election petition and, after referring to the decisions in Balwan Singh vs Lakshmi Narain and others(5) and Joshbhai Chunibhai Patel vs Anwar Beg A. Mirza,(6) given before and after the amendment made by Act 47 of 1966, it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for the free conveyance of any elector to and from any polling station, it was a necessary particulars` to allege and prove that the vehicle was used for the conveyance of the electors.
It then noticed paragraph 9 (iii ) of the election petition which stated that the appellant, his workers, agents and supporters with his consent, hired and procured vehicles for the free conveyance of electors and committed corrupt practice as provided under sub section (S) of section 123 of the Act.
It also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating to the procuring and hiring of tractors, jeep and car "for free conveyance of voters to thc polling stations from their houses" were given in sub paragraphs (a) and (b).
Those sub paragraphs clearly mentioned that the vehicles had been hired and procured for the free conveyance of the electors from their houses to the polling stations on the date of poll.
Reference was also made to Schedule III of the petition for which it was stated in paragraph 12(c) of the petition that the full particulars in regard to the corrupt practice were given in it.
That schedule contained the "particulars of vehicles used for (1) ; (2) (3) ; [1972] 3 S.C.R. 811.(4) (5) ; 340 free conveyance of electors on the date of election" and contained not only the place from which the electors were conveyed, the time of conveyance, the name of the polling station.
The particulars of The vehicle, but also the names of the electors who were so conveyed and the names of the workers and agents who conveyed them.
The schedule was an integral part of the election petition, and the original election petition thus contained what was required to be stated by section 83 of the Act, and the amendment was meant to furnish some further particulars in regard to the same corrupt practice.
It is therefore futile to contend that a new corrupt practice was allowed to be inserted by the High Court 's order of amendment.
It may be pointed out that, as would appear from paragraph 12(c) of the appellant 's original written statement to the unamended election petition, he also understood the allegation in the election petition to mean that it related to the use of the vehicles for carrying the electors to and from the polling stations on the date of poll.
It will be recalled that the issues were framed on August 30, 1974, before the making of the application for leave to amend the election petition, and issue No 2 clearly raised the question whether appellant Balwan Singh, or his workers and agents with his consent, hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured "were used for the purpose.
" The appellant was therefore fully aware that the election petitioners has, inter alia, alleged the user of the vehicles also, and that was why he joined issue for the trial of that allegation.
There is thus no justification for the argument to the contrary.
We have already made a mention of issue No. 2 and the High Court 's finding thereon in favour of ' the election petitioners in respect of tractors No. as UPG 9962 and UTE 5865, and jeep No. UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain` polling stations.
Mr. Bindra has challenged that finding and we shall proceed to examine his arguments in respect of the Naubasta polling station.
The election petitioners alleged in the election petition that the appellant, his workers, supporters and agents hired and procured the vehicles mentioned in Schedule III, with his consent, for the free conveyance of electors from their houses to the polling stations on the date of poll namely.
On February 26, 1974.
Particulars of the corrupt practice were given in the schedule.
It was thus stated.
in regard to Naubasta polling station, that electors were conveyed there from Bbimpur and Basehi villages, by tractor No. UPG 9962.
in a trolly.
It was specifically stated that electors Munshi Lal (P.W.2O), Ram Swarup (P.W. 13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.Il) of Basehi were thus taken to Naubasta.
So also, it was stated that some of the workers and agents who conveyed the electors were Bhavwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur.
The appellant pleaded in his written statement that the allegation was "totally incorrect and false," and that "none of the vehicles men 341 tioned in Schedule III was either procured or hired by the answering A respondent or by any of his workers and agents with his consent for the purposes of carrying voters to and from the polling station, nor any such vehicles were used for the purpose of carrying electors to and from the polling stations on the date of poll.
" It was not the case of the appellant that tractor No. UPG 9962 was taken to Naubasta polling station in some other connection, or that there was no occasion or question of hiring or procuring it as it was his own property, or that it was otherwise utilised for his election campaign or for some other work.
He merely stated that the tractor "was not used in connection with the election.
" It has been argued by Mr. Bindra that the tractor really belonged to the appellant, and that his wife was only a 'benamidar ' so that there could be no question of "hiring or procuring it whether on payment or otherwise" within the meaning of sub section (5) of section 123 of the Act.
Reliance in this connection has been placed on Surinder Nath Gautam vs Vidya Sagar Joshi( ').
That tractor No. UPG 9962 belonged to the appellant 's wife Smt.
Vimla, has been clearly admitted by him in his own statement in the High Court.
In fact, as has been stated, it was not his case in the written statement that this was not so and that it was his own property and there could be no question of hiring or procuring it.
A. U. Siddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur, has proved that the tractor was registered in the name of Smt.
Vimla Yadav, wife of appellant Balwan Singh, and that it stood in her name since May 1, 1971.
Balwan Singh 's statement shows that she was an independent candidate for being coopted as a member of the Zila Parishad.
and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband 's counting agent.
It cannot therefore be urged with any justification that the tractor which belonged to her, must be deemed to belong to her husband, or that it should be inferred that she was a mere 'benamidar ' when that was not the appellant 's case anywhere.
We must therefore accept it as proved beyond doubt that tractor No. UPG 9962 belonged to the wife of the appellant and was not his own property.
There is thus no justification for contending that there could be no question or occasion for hiring or procuring it as it belonged to the appellant.
The word "procure ' has been defined in the Century Dictionary to mean "to obtain, as by request, loan, effort, labour, or purchase; get; gain, come into possession of.
" It has been defined in the Oxford English Dictionary to mean "to gain, win, get possession of, acquire." This in our view is the correct meaning of the words as used in sub section
(5) of s.123 of the Act.
It would therefore amount to "procuring" the tractor if it could be shown that the appellant obtained or got it or acquired it from his wife.
As has been stated.
the tractor did not belong to the appellant and, in that view of the matter.
it is not necessary for us to examine the correctness of the view taken by the Delhi High Court in Surinder Nath Gautam 's case (supra).
(1) 342 We shall now examine whether tractor No. UPG 9962 was used for the free conveyance of any elector to or from the Naubasta polling station on the date of the poll, and whether it was hired or pro cured for that purpose by the appellant or his agent or by any other person with his consent.
As has been stated, polling in the constituency took place on February 26, 1974.
It has been stated by Vijay Kumar Singh (P.W. S) who was the polling agent of respondent Raghunath Singh, that he saw the workers of the appellant bringing voters to Naubasta polling station in the trolly of tractor No. UPG 9962.
The tractor, according to him, carried the B.K.D. flag and the posters of that party were pasted on the trolly.
When he saw the tractor making the first trip to the polling station, he made an oral complaint to the presiding officer.
It took some time for him to come out of the polling station, and by that time the tractor had gone.
But when the tractor came for the second time, he made written complaint exhibit 4 about it to Mr. Singh who was the presiding officer, and he made an endorsement on it in his presence.
The witness has stated further that the presiding officer came out of the polling station and himself saw the tractor as well as the persons who got down from it.
Those persons, according to the witness, were assisted by the workers of the B.K.D. in standing in the queue at the polling booth.
"Parchis were given to them from the camp of the B.K.D. which also had that party 's flag and posters.
According to Vijay Kumar Singh, The tractor and the trolly made only two trips to the polling station, the second trip being at about 3.30 p.m.
The witness has stated further that the presiding officer made an enquiry on his complaint, and he must have mention ed the result of the enquiry in his diary.
He has stated further that the presiding officer saw the tractor from a distance of about 100 paces and the registration number could be read from that distance.
The witness was cross examined at length, but nothing could be brought out to discredit his testimony, except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh.
That might be the reason why the witness was appointed as the polling agent of respondent Raghunath 'Singh, but that distant relationship cannot justify the argument that the witness is unreliable and his testimony should be rejected for that reason.
The statement of vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding officer of the Naubasta polling station.
He has stated that the aforesaid complaint exhibit 4 was presented to him by Vijay Kumar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint.
The complaint exhibit 4 was in Hindi but it ' is not disputed that its English translation reads as follows: "It is submitted that the workers of Sri Balwan Singh have brought voters in UPG 9962 tractor trolly bearing flag, and the agents of B.K.D. are setting them in queue.
It is 343 entirely illegal.
I have already spoken to you in this connection.
But no action has been taken.
Kindly taker proper action.
" M. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the "Instruction to Presiding officers" issued by the Election Commission of India.
The witness admitted that it was the requirement of the instruction that the Presiding officer of the polling station should forward any complaint filed before him in regard to the illegal conveyance of voters to the sub divisional and other magistrate having jurisdiction, with such remarks as he could make on his "own observation and personal knowledge." He saw on coming out of the polling station that a tractor and trolly were standing at a distance of 500 or 600 yards from the polling .
station.
The witness admitted ultimately that the "tractor was standing near the camp of the B.K.D.", he "saw some persons getting down from the tractor and the trolly" and that "those who got down from the tractor were seen by me (him) going towards the B.K.D. Camp.
" It may be mentioned that the High Court allowed the counsel for the election petitioners to cross examine the witness as there was some inconsistency in the statement made by 1 him in the Court and the report (exhibit 5) made in his diary.
We shall refer to that report in a while.
It was then that the witness stated as follows: "I had read the whole of the complaint (exhibit 4) while going out.
Having seen the tractor and the trolly outside the polling station near the B.K.D. camp and having seen the persons getting down the tractor and trolly and moving towards the camp, I concluded that everything contained in the complaint (exhibit 4) was correct, and it was for this reason that I mentioned in the report (exhibit 5) that the facts of the complaint were found to be correct.
I stayed outside the polling station for hardly 5 or 6 minutes.
" The witness has therefore corroborated the statement of Vijay Kumar Singh (P.W. 5) in several material particulars.
He has thus stated that (i) complaint exhibit 4 was presented to him on February 26, 1974 at 3.30 p.m. by Vijay Kumar Singh, (ii) he read the whole of it, (iii) he came out of the polling station to see for himself whether the allegation was correct, (iv) he saw that the tractor and trolly were outside the polling station near the B.K.D. camp, (v) persons were getting down the tractor and trolly, and (vi) they were moving towards the camp.
The witness has also stated that he forwarded the complaint to the District Election officer and that he made report exhibit 5 in his diary to the following effect, "22 Serious complaint made by the candidates.
The Congress polling agent made a complaint, that B.K.D. workers were conveying voters to the polling station by a tractor and trolly. ' The fact of the complaint were found to be correct and the complaint forwarded.
" 344 M. P. Singh was cross examined in regard to the correctness of the report, but he was unable to deny its genuineness or correctness.
His explanation that he merely concluded after seeing what he has stated, that everything contained in complaint exhibit 4 was correct, but did not notice the registration number of the tractor and did not see any flag or posters on the tractor or the B.K.D. agents setting them in queue, cannot be accepted because of his statement that he went out of the polling station as he considered it necessary to see for himself whether the allegation was correct, and also because of his contemporaneous note in the diary that "the facts of the complaint were found to be correct.
" We have therefore no reason to disagree with the view taken by the High Court that the statement of M. P. Singh and documents Exs. 4 and 5 go to prove the correctness of the statement of Vijay Kumar Singh (P.W. 5).
Mr. Bindra has argued that M. P. Singh could not have seen the registration number of the tractor as it was standing at a distance of 500 or 600 yards from the polling station, and that there is no reason to disbelieve his statement to that effect.
It would be sufficient for us to say in this connection that Vijay Kumar Singh (P.W 5) has stated that the Presiding officer had seen the tractor from a distance of about 100 paces, and his statement to that effect has not been contradicted by any other witness except M. P. Singh (P.W. 6) who, as has been shown, tried to give an inconsistent statement and was allowed to be cross examined by an order of the High Court.
But even M. P. Singh has stated that he saw the tractor standing near the B.K.D. camp.
Section 130 of the Act prohibited canvassing or exhibiting any notice or sign within a distance of 100 metres of the polling station, and Mr. Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate his camp at that distance.
Moreover, if it had not been possible for M. P. Singh to see the registration number of the tractor, he would not have recorded in his report exhibit 5 that the facts mentioned in the complaint (exhibit 4) were "found to be correct.
" The same is the position in regard to M. P. Singh 's statement that he did not notice whether the tractor and the trolly did or did not carry any flag or posters.
It is pertinent to point out in this connection that the complaint (exhibit 4) of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly, and it would not have been possible for him to "conclude that everything contained in the complaint exhibit 4) was correct" if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the appellant.
It has been stated by Vijay Kumar Singh (P.W. S) that the persons who got down from the tractor trolly went and took "parchis" from the B.K.D. camp outside the polling station.
M. P. Singh (P.W. 6) has also stated that those who got down from the tractor were seen by him going towards the B.K.D. camp.
It is not the case of the appellant that they were not the electors of the constituency.
In fact it would not have availed him or his workers to bring those who were not the electors to the polling station.
The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta 345 were Babu Lal (P.W. 11) and Radhey Lal '(P.W. 12) of village A Basehi, and Ram Swarup (P.W. 13), Misri Lal (R.W. 13) and Munshi Lal (P.W. 20) of village Bhimpur.
While Babu Lal, Radhey Lal, Ram Swarup and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant.
We have gone through the statement of these witnesses.
Babu Lal (P.W. 11) has stated that a tractor having a trolly came to Basehi on the date of poll carrying the flag and posters of the B.K.D. and that he travelled in it to the polling station along with others including Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was paid Voluntarily.
Radhey Lal (P.W. 12) has stated much to the same effect, except that he was not asked to name the other persons who travelled with him in the trolly.
He has however stated that Babu Lal had gone with him in the trolly.
Nothing has been elicited in the cross examination to shake the testimony of these witnesses.
We have also gone through the statements of Ram Swarup (P.W. 13) and Munshi Lal (P.W. 20) of Bhimpur.
Ram Swarup has stated that a tractor and trolly carrying the flag and posters having the symbol of "Haldhar Kisan" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything.
He has stated that he returned to the village in the same tractor, after casting, his vote.
Munshi Lal (P.W. 20) has deposed much to the same effect, and he has stated that Ram Swarup (P.W. 13) also travelled in the tractor trolly along with the other persons named by him.
The statements of these witnesses have not been shaken in cross examination.
As has been stated, Misri Lal (R.W. 13) was also named in the schedule to the election petition as the elector who was conveyed in the tractor trolly, and he has been examined on behalf of the appellant.
He has stated that there is a distance of 2 or 2 1/2 furlongs between the "abadi" of Bhimpur and the "abadi" of Naubasta, and that he went on foot to cast his vote at the polling station.
He has stated further that the persons living at Bhimpur had gone to the polling station on foot and that it was wrong to say that any tractor come to Bhimpur to transport the voters to the polling station.
The appellant has admitted that he knew Misri Lal for 3 or 4 years, and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has been made above.
It was specifically stated in Schedule III of the election petition that Bhagwan Singh (R.W.ll) and Babu Singh of Naubasta, and Maikoo of Bhimpur were the workers and agents of the appellant who conveyed the electors to the Naubasta polling station.
Of these only one Bhagwan Singh (R.W.ll) has been examined on behalf of Balwan Singh.
He has stated that it was wrong to say that he, Maikoo and 346 Babu Singh brought any 'voters in tractor trolly from Bhimpur to Naubasta, or that he got any "parchis" distributed to any voters in the queue at the polling station.
It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.
Bhagwan Singh (R.W.ll) has admitted that there r was another Bhagwan Singh in his village.
He has stated that he did not see appellant Balwan Singh during the election, in his village, that he had put the flag and poster of the Congress party at his house and that he and his sons worked for the Congress in the election.
As against this, the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of B.K.D. It therefore appears that Bhagwan Singh (R.W.ll) cannot be said to be the worker named in the Schedule of the petition, and nothing can possibly turn on what he has stated.
It will be recalled that Vijay Kumar Singh (P.W.5) who was the polling agent of the Congress candidate at Naubasta had stated in the trial court that he had made an oral as well as a written complaint about the conveyance of voters by the workers of the appellant, to the Presiding officer.
The appellant also appointed his polling agent at the polling station, but he has not examined him in rebuttal of Vijay Kumar Singh 's statement to that effect.
We have gone through the other evidence which has been led by way of rebuttal of the allegation regarding the use of tractor No. UPG 9962 for the conveyance of electors to Naubasta polling station.
We have already dealt with the statements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13) and have given our reasons for rejecting them as unsatisfactory.
The remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34).
Vijai Pal Singh is a self condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress (o) candidate and did not see any tractor trolly conveying voters to Naubasta polling station although he remained present at the polling station, he admitted under cross examination that he was not a polling agent at the Naubasta polling station and had made a false statement to that effect.
In so far as Balwan Singh (R.W.34) is concerned, it will be sufficient to say that he has admitted that he did not go to Naubasta on the date of the poll.
He could not therefore disprove the evidence of the election petitioners in regard to the alleged corrupt practice.
He once ventured to state that he came to know on the "next day after polling that (his) tractor had gone to the National Sugar Institute" for transporting "seta" and "patwar", but he qualified that statement by saying that the tractor may have been sent there by his wife and that "seta" and "patwar" were obtained before February 26, 1974.
An attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute, but it was given up by Balwan Singh.
He cannot therefore be said to have rebutted the evidence of the election petitioners.
It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu 347 Singh and Maikoo in the election petition, they were not examined in defence.
It may be mentioned that some witnesses of the election petitioners, namely, Babu Lal (P.W.II), Ram Swarup (P.W.13) and Munshi Lal (P.W.20) named certain persons who, according to them, travelled with them to the polling station Naubasta free of cost.
Most of those persons were summoned at the instance of the appellant, but they were not examined ultimately, and were given up.
The election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for the conveyance of the electors to the Naubasta polling station.
Amarpal Singh (P.W.33) has stated in this connection that he held a diploma in motor mechanism and was running a repairing shop at Rawatpur for motors and tractors.
The appellant was known to him and asked him to do the repair work of the vehicles at the B.K.D. office at Rania for Rs. 25/ per day.
He has stated further that he went to Rania and worked there for 12 days.
One day before polling, the tractor of the appellant was brought to Rania as it had developed some defects.
Balwan Singh 's wife Smt.
Vimla and his driver were present when he was working on that tractor.
Ram Swarup Sharma, Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairing work as early as possible, and he asked Smt.
Vimla to send the tractor to Naubasta with Babu Singh for transporting voters.
Witness has stated further that his partner Ramesh was present at that time.
Ram Swarup Sharma is dead.
Appellant Balwan Singh cited Babu Singh as a defence witness, but gave him up.
He did not examine Ramesh.
Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania.
Rania, according to the witness, had a population of some 3500 persons and it is difficult to believe that the appellant had no office there.
The appellant recorded his own statement to the effect, inter alia, that he did not employ Amarpal Singh for repairing any vehicle and did not give any instruction that Babu Singh should take the tractor for transporting voters.
No reason has how ever been assigned why Amarpal Singh should have tried to implicate the appellant falsely.
The trial Judge has placed reliance on his statement, and we see no reason for taking a different view.
Tractor UPG 9962 belonged to the appellant 's wife Smt.
Vimla, and it was alleged from the very inception, in the contemporaneous report exhibit 4, that it had been used for the conveyance of electors, some of whom were named in the Schedule to the election petition along with the names of the workers and agents who utilised the tractor for the work.
It could be expected of the appellant that he would give satisfactory particulars and details about any other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so.
On the other hand, as has been 348 shown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure.
His wife Smt.
Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.
It is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from .
the proved circumstances where such inference is justifiable.
Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri vs Badri Narayan Singh and others(1) and Shri Umed vs Raj Singh and others(2).
In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta 1 ' a polling station, and r that it was so used by the workers of the appellant.
Then there is the further fact that the voters were conveyed free of cost.
It has also been proved that the tractor belonged to the appellant 's wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose.
In these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured, by the appellant for the free conveyance of the electors.
For the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured `tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the Naubasta polling station, and he thereby committed a corrupt practice within the meaning of ' section 123(5) of the Acts.
is correct and must be upheld.
In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free conveyance of electors to two other polling stations.
It may be mentioned that in arriving at the above finding we have ' ' taken due note of the view expressed by this Court in Ram Awadesh Singh vs Sumitra Devi and others(8) in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan vs Khurshid Ahmed and others(4) that an election once held should not be treated in a light hearted manner and ' the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate.
So also, we have noticed the view expressed in Baburao Ragaji Karem ore and others vs Govind and others(5) that the Court should (1) A.I.R. 1960 S.C. 200.
(2) ; (3) ; (4) 19751 S.C.R. 643.
(5) ; 349 examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset.
We have also taken notice of the view expressed by Ray C.J. in Smt.
Indira Nehru Gandhi vs Raj Narain(1) that in an election contest it is the public interest, not the parties ' claims, which is the paramount concern.
Mr. Bindra has placed consider " able reliance on these decisions.
But, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.
Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U.P. Legislative Assembly from another constituency in 1957, but his election was set aside on the round, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors.
He has argued that in view of this Court 's decision against him in Balwan Singh vs Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question.
The argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case.
Mr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellant 's election without finding that the result of the election had been materially affected thereby.
The argument is misconceived, for it is not the requirement of section 100(1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has r been materially affected by it.
Another argument of Mr. Bindra was that the corrupt practice in question should not have been found to have ben committed as the election petitioners did not examine themselves during the course of the trial in the High Court.
There was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.
In the result, the appeal (Civil Appeal No. 775 of 1975) filed by Balwan Singh fails and is dismissed with costs.
The cross appeal (Civil Appeal No. 1107 of 1975) is dismissed as not pressed, but without any order as to the costs.
P.B.R. Appeal dismissed.
(1) A.I.R. 1975 S.C. 299.

dataset_name: IN-Abs

summary/full:
The appellant 's election to the State Assembly was set aside by the High Court on the ground of corrupt practice falling under section 123(S) of the Representation of People Act.
The appellant, it was alleged, hired and procured vehicles for the free conveyance of voters.
This was however denied by the appellant.
The High Court allowed amendment of the election petition by inserting a new sub paragraph 12(d), stating that the names of the persons who hired or procured the vehicles for carrying the voters to the polling station were given in schedule lII(i) of the petition, on the view that the information given was a necessary particular to allege and prove that the vehicle was used for the conveyance of the voters.
It was contended in this Court.
(i) that the tractor in which the voters were alleged to have been carried to the polling station, was taken there in some other connection and that though the tractor was in the name of his wife as benamidar.
it really belonged to the appellant and, as such, no question or hiring or procuring it, whether on payment or otherwise, arose so as to make it fall within the purview of section 123(5) of the Act.
and (ii) that the High Court had committed a serious.
error of law in allowing the election petition to be amended after the expiry of the period prescribed for its presentation.
Dismissing the appeal, ^ HELD : The finding of the High Court that the appellant procured the tractor with trolly and used it for the purpose of transporting the voters to the polling station and thereby committed a corrupt practice within the meaning of section 123(5) of the Act is correct.
[348E] (1) (a) There is no justification for contending that there could be no question or occasion for hiring or procuring the tractor because it belonged to the appellant.
It cannot be urged that the tractor, which belonged to his wife mutt be deemed to belong to the appellant or that it should be inferred that she was a mere benamidar when that was not the appellant 's case anywhere The tractor belonged to the wife of the appellant and was not his own property [341E F1 (b) It would amount to "procuring" the tractor if it could be shown that r the appellant obtained or got or acquired the tractor from his wife The dictionary meaning of the word "procure" is "to obtain as by request loan effort, labour; get, gain, come into possession of".
This is the correct meaning of the word used in section 12(5).
[341G H] (c) It is not always possible for an election Petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable.
[348B] 336 Bhagwan Datta Shastri vs Badri Narayan Singh and others A.I.R. 1960 S.C. 200: Shri Umed vs Raj Singh and others.
R. 1975 S.C. is; Ram Awadesh Singh vs Sumitra Devi and others.
; ; Rahim Khan vs Khurshid Ahmed and others; , Baburao Ragaji Karemore and others vs Govind and others ; and Smt.
Indira Nehru Gandhi vs Raj Narain.
; referred to.
(2) It is futile to contend that a new corrupt practice was allowed to be.
inserted by the High Court 's order of amendment.
The schedule was an integral part of the election petition and the original election petition contained what was required to be stated by section 83 of the Act and the amendment was meant to furnish some further particulars in regard to the same corrupt practice When issue No. 2 was framed by the High Court, the appellant was fully aware that the election petitioners had alleged the user of the vehicles also and that was why he joined issue for the trial of that allegation.
[340B C] (3) There is no obligation on the part of the election petitioners to examine themselves at the trial in the High Court.
The evidence which they were able to produce at the trial could not have been rejected for any such fanciful` reason when there was nothing to show that the election petitioners were`able to give useful evidence to their personal knowledge but stayed away purposely [349F]