Sheodhan Singh Vs. Mohan Lal Gautam
 INSC 12 (24 January 1969)
24/01/1969 HEGDE, K.S.
CITATION: 1969 AIR 1024 1969 SCR (3) 417 1969
SCC (1) 408
CITATOR INFO :
E&D 1974 SC 505 (4) E 1975 SC1012 (11) R
1976 SC 744 (34) R 1984 SC 135 (22)
Election petition-Whether abates on
dissolution of legislature-Presentation by Advocate's clerk in petitioner's
presence-If proper presentation.
The respondent's election to the U.P.
Legislative Assembly in February, 1967, was challenged by the appellant in an
election petition ,on various grounds including allegations of corrupt
practices. The respondent raised two preliminary objections before the High
Court namely, (i) the petition was not maintainable as it was not properly
presented; and (ii) the petition ceased to be maintainable as a result of
dissolution of the U.P. Legislative Assembly by virtue of the President's
proclamation of April 15, 1968, under article 356 (1) of the Constitution
issued during the pendency of the election petition before the High Court.
These preliminary objections were rejected by
the High Court, which also dismissed the petition on the merits.
On an appeal to this Court,
HELD : (i) The High Court was right in
holding that the requirements of law as to the presentation of a petition were
fully satisfied as the election petition was presented to the Registry by an
Advocate's Clerk in the presence of the petitioner. The petitioner in
substance, though not in form, himself presented the petition. (ii) There was
no force in the contention that the petition had become infructuous in view of
the dissolution of the Legislative Assembly. [418H] The question for
consideration was not only the validity of the election but also the allegation
of corrupt practices which, if established, would involve the respondent
incurring certain electoral disqualifications.
It is clear from the provisions of Chapters
III and IV of Part VI of the Representation of the People Act, 1951, that the
contest in an election petition is really between the constituency and the
person or persons complained of. Once the machinery of the Act is moved by a
candidate or an elector, the carriage of the case does not entirely rest with
the petitioner. The reason for these provisions is to ensure to the extent
possible that the persons who offend the election law, are not allowed to avoid
the consequences of their misdeeds. [421G] .
The law relating to withdrawal and abatement
of election petitions is exhaustively dealt with in Chapter IV of Part VI of
the Act. In deciding whether a petition has abated or not it was not possible
to travel outside the provisions contained in that Chapter. The Act does not
provide for the abatement of an election petition either when the returned
candidate whose election is challenged resigns or when the assembly is
dissolved. [42 1 D] Carter and Anr. v. Mills 9, Common Pleas p. 117;
distinguished; Ghasi Ram V. Dal Singh and
Others  3 S.C.R. 102; followed.
(iii) On the facts, the High Court had
rightly dismissed the petition.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1564 of 1968.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated May 23, 1968-of the
Allahabad High Court in Election Petition No. 40 of 1967.
Danial Latifi, S. J. Hyder, Rajindra Singh
and M. I. Khowaja, for the appellant.
Veda Vyasa, K. K. Jain, H. K. Puri, G. N.
Dikshit, R. N. Dikshit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the
The Judgment of the Court was delivered by
Hegde, J. This appeal under s. 116A of the Representation, of the People Act,
1951 arises from the decision in Election Petition No. 40 of 1967 on the file
of the High Court of Judicature at Allahabad. In that petition the appellant
challenged the election of the respondent to the U.P.
Legislative Assembly from Iglas Constituency
in the general election held in February 1967. In that election the appellant,
the respondent and four others contested. The respondent secured 10,705 votes
more than the appellant.
Other candidates secured less votes than the
appellant. The appellant challenged the election of the respondent on various
grounds, most of which were given up either in the trial court or in this
Court. The High Court dismissed the election petition. Against that order the
appellant has come up in appeal.
Before going into the merits of the appeal,
it is necessary to deal with the preliminary objections to the appeal, taken by
the respondent. The first objection taken was that the petition was not
maintainable as it was not properly presented. The second objection was that
the petition ceased to be maintainable as a result of the dissolution of the
U.P. Legislative Assembly as per the President's Proclamation of April 15, 1968
under Art. 356(1) of the Constitution. That Proclamation was issued during the
pendency of this election petition before the High Court.
The High Court rejected both those
contentions but those contentions were again pressed for acceptance at the
hearing of this appeal.
The High Court has found as a fact that the
election petition was presented to the registry by an advocate's clerk in the
immediate presence of the petitioner.
Therefore, in substance though not in form,
it was presented by the petitioner himself. Hence the requirement of the law
was fully satisfied.
We are unable to accept the contention of Mr.
Veda Vyasa, learned Counsel for the respondent that the petition must be held
419 to have become infructuous in view of the dissolution of the assembly. In
this proceeding we are considering the validity of the election of the
respondent and not whether he is continuing as a member. If the contention of
the appellant that the respondent was guilty of corrupt practices during the election
is found to be true then not only his election will be declared void, he is
also liable to incur certain electoral disqualifications. The purity of
elections is of utmost importance in a democratic set-up.
No one can be allowed to corrupt the course of
an election and get away with it either by resigning his membership or because
of the fortuitous circumstance of the assembly having been dissolved. The
public are interested in seeing that those who had corrupted the course of an
election are dealt with in accordance with law. That purpose will stand
defeated if we accept the contention of Mr. Veda Vyasa.
The election petitions in this country are
solely regulated by statutory provisions. Hence unless it is shown that some
statutory provision directly or by necessary implication prescribes that the
pending election petitions stand abated because of the dissolution of the
Assembly, the contention of the respondent cannot be accepted.
Section 80 provides that no election shall-
be called in question except by an election petition presented in accordance
with the provisions of the Act. Section 81 (1) says that an election petition
calling in question any election may be presented on one or more of the grounds
specified in sub-s. (1) of S. 100 and s. 101 to the High Court, by any
candidate at such election or any elector.
Section 84 prescribes that a petitioner may,
in addition to claiming a declaration that the election of all or any of the
returned candidate is void, claim a further declaration that he himself or any
other candidate has been duly elected. Chapter III of Part VI deals with the
trial of election petitions. Section 86(1) prescribes that the High Court shall
dismiss an election petition which does not comply with the provisions of s. 81
or s. 82 or s. 117.
Section 87(1) says that subject to the
provisions of the Act and of any rules made there under, every election
petition shall be tried by the High Court, as nearly as may be, in accordance
with the procedure applicable under the Code of Civil Procedure, 1908 to the
trial of suits. Section 97 (1) provides for filing recrimination.
Section 98 reads :
"At the conclusion of the trial of an
election petition the High Court shall make an order (a) dismissing the
election petition; or (b) declaring the election of all or any of the returned
candidates to be void; or 420 (c) declaring ' the election of all or any of the
returned candidates to be void and the petitioner or any other candidate to
have been duly elected." Section 99(1) is important for our present
purpose. It says "At the time of making an order under s. 98 the High
Court shall also make an order :
(a) where any charge is made in the petition
of any corrupt practice having been committed at the election, recording- (i) a
finding whether any corrupt practice has or has not been proved to have been
committed at the election and the nature of that corrupt practice; and (ii) the
names of all persons, if any, who have been proved at the trial to have been
guilty of any corrupt practice and the nature of that practice ............
Chapter IV of Part VI deals with withdrawal
and abatement of election petitions. Section 109 stipulates that an election
petition may be withdrawn only by the leave of the High Court and where an
application for withdrawal is made notice thereof fixing a date for the hearing
of the application shall be given to all other parties to the petition and
shall be published in the official gazette. Section 112 says :
(1) An election petition shall abate only on
'the death of a sole petitioner or of the survivor of several petitioners.
(2) Where an election petition abates under
(1) the High Court shall cause the fact to be
published in such manner as it may deem fit.
(3) Any person who might himself have been a
petitioner may, within fourteen days of such publication, apply to be
substituted as petitioner and upon compliance with the conditions, if any, as
to security, shall be entitled to be so substituted and to continue the
proceedings upon such terms as the High Court may deem fit." Section 116
"If before the conclusion of the trial
of an election petition, the sole respondent dies or gives notice that he does
not intend to oppose the petition or any of the respondents dies or gives such
notice and there is no other respondent who is opposing the petition, the High
Court 421 shall cause notice of such event to be published in the Official
Gazette, and thereupon any person who might have been a petitioner may, within
fourteen days of such publication, apply to be substituted in place of such
respondent to oppose the petition, and shall be entitled to continue the
proceedings upon such terms as the High Court may think fit." From the
above provisions it is seen that in an election petition, the contest is really
between the constituency on the one side and the person or persons complained
of on the other. Once the machinery of the Act is moved by a candidate or an
elector, the carriage of the case does not entirely rest with the petitioner.
The reason for the elaborate provisions noticed by us earlier is to ensure to
the extent possible that the persons who offend the election law are not
allowed to avoid the consequences of their misdeeds.
The law relating to withdrawal and abatement
of election petitions is exhaustively dealt with in Chapter IV of Part VI of
the Act. In deciding whether a petition has abated or not we cannot travel
outside the provisions contained in that Chapter. There is no provision
providing for the dropping of an election petition for any reason other than
those mentioned therein. The act does not provide for the abatement of an
election petition either when the returned candidate whose election is
challenged resigns or when the assembly is dissolved. As the law relating to
abatements and withdrawal is exhaustively dealt with in the Act itself no
reliance can be placed on the provisions of the Civil Procedure Code nor did
the learned Counsel for the respondent bring to our notice any provision in the
Civil Procedure Code under which the election petition clan be held to have
In support of his contention that the
petition has abated great deal of reliance was placed by Mr. Veda Vyasa on the
decision in ,Carter and Anr. v. Mills(1). Therein a pending election petition
was allowed to be withdrawn on the dissolution of the Parliament. In doing so
Coleridge, C.J. observed thus :
"I am of opinion that this application
should be 'granted. The Queen having been pleased to dissolve Parliament, of
which fact the Court must take judicial cognizance, a case has arisen not
expressly provided for in the Act;
and under these circumstances we must guide
our proceedings by the old parliamentary practice on the subject. It is common
knowledge, that according to the old practice the petition abated or dropped in
such a case.
We think the result is the same now, and that
we therefore have authority, and ought to make an order for the return of the
deposit." (1) 9, Common Pleas p. 117.
422 Keating, J., the other judge agreed with
the learned Chief justice. We do not know the facts of that case. It is not
known whether the election of the returned candidate was challenged on the
ground of any corrupt practice. The decision in that case rested solely on 'the
old parliamentary practice on the subject'. We have no such practice in this
country. That being so that decision is of no assistance for our present
purpose. In Ghasi Ram v. Dal Singh and Others(1) this Court proceeded on the
basis that the dissolution of the assembly does not put an end to the election
petition. For the reasons already mentioned we think that the High Court was
right in its conclusion that the election petition had not abated.
This takes us to the merits of the case. As
mentioned earlier the election of the respondent was challenged on numerous
grounds. On the pleadings as many as 10 issues were raised. At present we are
concerned only with issues Nos. 7, 8 and 10.
The only question arising under issue No. 7
is whether Exh. 7, was got printed and published by the respondent. So far as
the question of getting it prepared and printed is concerned, the evidence
principally relied on is that of P.W. 16 Mohan Singh. We are in agreement with
the High Court that Mohan Singh is a wholly unreliable witness.
According to him he was a signatory to that
pamphlet and he took active part in getting it printed which means that he was
a party to the publication of false statement. He appears to have been on the
side of the respondent at one stage and walked over to the side of the
appellant at a later stage, not uncommon during election time. His evidence
does not carry conviction. On his own showing he can be a stooge.
In support of the evidence of P.W. 16
reliance was placed on Exh. D-23, one of the vouchers submitted by the
respondent along with his return of election expenses. That voucher relates to
the printing of two pamphlets on behalf of the respondent. It shows that one of
the pamphlet mentioned therein was printed on both sides of the paper. Exh. 7
is also printed on both sides of a paper. From that we are asked to conclude
that the voucher in question refers to printing of pamphlets like Exh. 7. Such
an inference would be a farfetched one. According to the respondent D-23
relates to pamphlets similar to Exh. A-154 and A-155. The High Court has not
accepted that contention. The basis on which the High Court rejected that
contention does not appear to us to be correct. It is not necessary to go into
that question as we are of opinion that there is no satisfactory evidence to
show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are
also unable to attach any weight to Exh. 3, the complaint given by the
appellant to the Returning Officer. The appellant (1)  3S.C.R 102.
423 has considerable experience of filing
This was. the third election petition filed
by him. Even as the election was going on he appears to have been preparing for
the election petition. The evidence of P.W. 7, Narayan Singh Bodh throws a:
great deal of light on this aspect.
Large number of witnesses were examined to
show that either respondent himself distributed pamphlets like Exh. 7 or he got
them distributed through others. Their evidence has been considered by the High
Court in detail and rejected.
We have been taken through that evidence and
we were not impressed by the same. We are satisfied that the High Court has
correctly assessed, that evidence.
Generally, this Court accepts the findings of
fact arrived at by the High Court. Election petitions are tried by experienced'
judges of the High Court. They had the benefit of observing the witnesses when they
gave evidence. Hence their appreciation. of evidence is entitled to great
We have not been shown any good reason for
departing from that rule.
Now coming to issue No. 8 which relates to
the complaint of' the appellant that the respondent, his agents and workers had
hired several vehicles for conveyance of the voters to and from the polling
stations. In the petition, particulars of as many as twelve vehicles which were
said to have been used for conveying voters. were given. But the appellant's
learned Counsel confined his arguments to three vehicles only i.e. Truck No.
USK 503, Bus. No. RJL 9729 and a Tractor.
So far as Truck No. USK 503 is concerned, the
witnesses. who were examined are P.Ws. 37, 40, 41, 45 and 48. Among them the
most important witness is P.W. 45 Sukhbir Singh. He claims to have worked for
the respondent and transported voters to the polling station in the truck in
Further he deposed' that he hired that truck
from "Achaltar truck operators' Union" Hathras. It is now definitely
established and that evidence was. not challenged before us that in Hathras
there was no concern bearing that name.
Hence it is obvious that the evidence of
this' witness is wholly false. We are unable to accept the contention of Mr.
Latifi, learned Counsel for the appellant
that the name of concern in question was wrongly mentioned by the witness due
to some confusion. The fact that P.W. 45 at one stage worked for the respondent
is not of much significance.
Changing sides during election is nothing
unusual. Once the evidence of P.W. 45 is proved to be false very little basis
remains for the evidence of' other witnesses who spoke to the user of a truck
in question. It is common knowledge that in the trial of election petitions
there would be no dearth of witnesses'. The faction spirit generated during
election projects itself during the trial of election petition 424 that
follows. Much value cannot be attached to the complaint given by the
appellant's agent to the polling officer (Exh. 18). That document has several
suspicious features which were noticed ,by the High Court.
Now coming to the tractor, its registration
No. was not spoken to by any witness. There is no evidence about its hiring.
The witnesses who- speak to its user are P.Ws. 33 and 34. The evidence of P.W.
33 is extremely vague. He deposed that a worker of the respondent Sita Ram
carried the voters from the villages to the election booth. He is unable to
give the details of the tractor. P.W. 34 is an omnibus witness. The evidence
relating to owner ,of that tractor is conflicting. The evidence of P.Ws. 33 and
34 does not carry conviction. It was rightly not relied on by the High Court.
Now coming to the hiring of Bus RJL 9729,
according to the petition that bus was owned by one Babu Lal of Jaipur. That
Babu Lal has not been examined. The evidence of P.Ws. 30, 31 and 32 who speak
to the conveyance of the voters in that bus to the polling stations is far from
satisfactory. Their evidence did not ,commend itself to the trial court. We
agree with the High Court that it is unsafe to rely on their evidence.
This takes us to issue No. 10 which relates
to the complaint of the appellant that the election expenses incurred by the
respondent had exceeded the prescribed limit. In this connection various items
of expenses said to have been omitted in the return were particularised in the
petition but most of them were not pressed at the hearing.
The evidence relating to the expenses said to
have been incurred in procuring and hiring vehicles for conveying voters to the
polling; booths has to be rejected in view of our earlier findings. Large
number of witnesses were examined to show that considerable quantity of wheat,
at a, sugar and ghee had been purchased by the respondent for feeding his
workers and the expenses incurred for that purpose had not been included in the
return of expenses.
Their evidence has not been believed by the
'We have been taken through the evidence and
we do not think it is creditworthy nor are we able to place any reliance on the
documents produced in that connection.
In the result this appeal fails and the same
is dismissed with costs.
R.K.P.S. Appeal dismissed.