Satyanarayana Raju, J.
1. This is an appeal, under Section 116-A of the Representation of the People Act, 1951, against the order of the Election Tribunal, Secunderabad, setting aside the election of the appellant to the Andhra Pradesh Legislative Assembly, from the Alampur Constituency.
2. There was a general election in January-March, 1957, to the Andhra Pradesh Legislative Assembly from the single member constituency of Alampur in Mahahoobnagar district. The appellant and the respondent fought the election in a straight contest. The polling took place on 25-2-1957, and en 13-3-1957, the appellant was declared duly elected, she having secured the largest number of votes. The actual number of votes secured by the contestants is not available in the record, but we hava been informed by counsel that 13,345 votes were cast for the appellant and 13,267 votes, for the respondent.
3. On 27-4-1957, the respondent herein filed a petition under Sections 80 - 84 of the Representation of the People Act, 1951(hereinafter referred to as 'the Act') assailing the validity of the appellant's election on the following grounds :
1. The election was vitiated by non-compliance with and non-observance of certain provisions of the Constitution or the Act and the rules made thereunder.
2. The appellant was on the material date a partner of one J.S. Narayana, who was a contractor for the supply of goods to the State Government, and was thus disqualified for being chosen as a member of the Legislative Assembly.
3. The village Officers of Vallur, Itikak and Ramapurarn canvassed support for the appellant contrary to the provisions of Section 123(7) of the Act,
4. The Chief Minister and the Minister for Irrigation, Government of Andhra Pradesh, canvassed support for the appellant and offered inducements to the voters and also threatened them.
5. The appellant had arranged transport for the conveyance of voters to the polling stations,
4. On 15-7-1957, the appellant filed her written statement denvine these allegations.
4a. On the pleadings the following issues were framed on, 1-9-1957 :
I(a). Were the voters living in the area covered by Harijan Vada as well as Dogarpet excluded from the recent electoral rolls and similarly residents of Konderu village did not find their names in the rolls? If so, what is its effect?
(b) Is this Tribunal competent to go into the question of non-inclusion of certain voters in the voters' list?
2. Was the respondent(appellant herein) a partner of J.S. Narayana, a contractor for the supply of goods to the State Government, and was thus disqualified for being chosen as a member of the Legislative Assembly?
3. Was the respondent(appellant herein) guilty of corrupt practices detailed in paras 9, 10, 11 and 12 of the petition, namely, whether the village officers canvassed for her and Ministers, Government of Andnra Pradesh, including the Chief Minister, addressed meetings in her favour and she had arranged transport for the conveyance of voters to the polling stations?
5. On the first issue, the Tribunal held that some persons, who were qualified to vote were not included in the electoral rolls of Harijan Vada and Dogarpet, but that the omission did not amount to non-compliance with the provisions of the Constitution or of the Act and the rules framed thereunder. On issue No. 2, it was found that the appellant had advanced monies to J.S. Narayana as a creditor and this did not attract the provisions of Section 7(d) of the Act.
On the first part of issue 3, the finding was that the village officers did not canvass support for the appellant. With regard to the second part of the issue, the Tribunal reached the conclusion that the Chief Minister and the Minister for Irrigation of the Government of Andhra Pradesh had canvassed support for the appellant but that the respondent had not established the use of 'undue influence' as contemplated by Section 123(2) of the Act.
On the last part of the third issue, it was held that the corrupt practice specified in Section 123(5) of the Act had been established and that the result 61 the election had also been materially affected thereby. On the basis of the last of the findings the Tribunal set aside the election of the appellant.
6. All the other issues having been found by the Tribunal in her favour, the appellant has contested the adverse finding recorded by the tribunal on the last part of the third issue. While supporting the aforesaid finding the respondent's learned counsel has endeavoured to sustain the decision of the Tribunal on the Other grounds.
7. Initially it may be stated that under Section 116-A of the Act, the High Court has the same powers, jurisdiction and authority as in an appeal from an original decree passed by a Civil Court situate within the local limits of its civil appellate jurisdiction. Therefore, all findings of fact are open to review as in an appeal under Section 96 of the Code of Civil Procedure.
8. The learned counsel for the appellant has argued that the corrupt practice specified in Section 123(5) of the Act has not been established by the respondent.
9. Now, under that provision, the hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person for the conveyance of any elector to or from any polling station for the poll constitutes a corrupt practice. It has, however, been made clear by the first proviso to that sub-section that the hiring of a vehicle by an elector or by several electors at their joint cost for the purpose of conveying him or them to and from any such polling station shall not be deemed to he a corrupt practice.
The second proviso to the sub-section provides that the use of any public transport, vehicle or vessel or any tram-car or railway carriage by any elector at his cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not he deemed to be a corrupt practice.
10. The material allegation made by the respondent with regard to the alleged corrupt practice under Section 123(5) is set out in paragraph 12 of the petition, and is as follows :
'Moreover the respondent (appellant herein) hired and procured on payment of money or otherwise Motor Jeep Cars for the conveyance of the voters to the polling stations on the polling day, which also is prohibited under Section 123(5) of the Representation of the Peoples Act. The petitioner(Respondent) will prove all the above said facts at the time of enquiry of this petition.'
This allegation was traversed by the appellant to paragraph 7 of her written statement wherein she stated that she had never used any jeep cars for conveying voters. She further averred that she had not done anything in breach of Section 123(5) or any other provision of the Act. On the pleadings and the issue, it is clear that the respondent sought to prove that the appellant had arranged transport for conveying voters to the polling stations. But actually at the enquiry the respondent did not attempt to establish the charge with reference to any place other than the Amaravai polling station.
11. We shall now proceed to consider the material evidence bearing on this limited question.
12. The respondent examined himself as P.W. 1. He deposed that the appellant had brought a jeep car for the conveyance of voters to the polling booth at Amaravai and that his agent, one Narayan Gowd, reported the matter to the presiding officer. He filed the receipt, Ex. P-7, given by the presiding officer to his agent, which reads :
'Received the complaint submitted by Mr. Narayan Gowd regarding the transport of voters.'
In cross-examination, he admitted that he could not give the registration number of the jeep car which had been hired for the transport of voters and that ho did not himself see the voters being transported. He applied for a copy of the petition filed by his agent before the presiding officer but he was informed that it was not traceable. Ex. P-8 is the intimation given to him by the office of the Deputy Collector, wherein it was stated :
'You are informed that the record copy of which you have requested for is not available with this office.'
13. The main evidence adduced by the respondent for establishing the corrupt practice under Section 123(5) was that of P. W. 6, who is a member of the Legislative Assembly from the Gadwal Legislative constituency which adjoins the constituency of Alampur. He deposed that on the- 25-2-1957, the date on which the polling for the Alampur constituency took place, he was at Amaravai village from 2 to 4 or 4-30 P. M.
He owns lands in that village and had gone there to look after them. He was at a distance of 50 or 60 paces from the polling booth for 2 or 2 1/2 hours, watching the polling. He saw a jeep transporting voters and it came four or five times. He asserted that the jeep was transporting the voters of the appellant. He stated :
'The jeep was her own. It means of her husband or sombody related to her.'
He told the polling agent of the respondent, Narayan, that voters were being transported and found fault with as to why he did not go and report the matter to the presiding officer, whereupon Narayan made a report. In cross-examination it was elicited from him that he was not a voter in the Alampur Constituency but that he had just gone to see the polling. He knew the appellant very well. He knew her husband also for a number of years. He had once seen the jeep car with the husband of the appellant when ho visited him. About the identity of the jeep car, he stated :
'The number of the jeep may be H. T. U. 109, The colour of the jeep may he chocolate.'
Narayan wrote the application in his presence and he saw him taking it inside the polling booth hut he could not say whether Narayan delivered it to the presiding officer or not. He did not also know what the presiding officer had written on the application.
14. The presiding officer at Amaravai polling station was examined by the respondent, as P. W. 7 He stated that Narayan, the polling agent of the Respondent gave him a complaint that the voters of the appellant were being transported in a jeep-cat. Ho admitted having given the receipt, Ex. P-7, to Narayan. In cross-examination, he stated that the complaint was given to him at about 3 O'clock but that he did not remember whether the number of the car was mentioned therein. He was not shown by the polling agent the jeep in which the voters were conveyed. He came out of the polling station but he did not there find any jeep nor did he see voters being transported. This is all the evidence adduced by the respondent.
15. The appellant examined herself as H.W.I. She deposed that one car and one jeep were used for organization purposes'. She stated ;
'We have no jeep(bearing) No. H. T. U. 109, It has not come for elections nor have we used it. I have not used any jeep for carrying voters from Amaravai. We did not transport any of the voters.'
It is important to note that not a single question was put to this witness by the respondent with regard to the conveyance of voters to the polling station at Amaravai or any other polling station, with the result that the appellant's assertion remained unchallenged. The significance of the omission of the respondent to cross-examine the appellant on the material part of his case was lost sight of by the Tribunal. If there is anything in a witness's statement which is disputed and the opponent 'avoids asking questions on those matters in cross-examination, the evidence in chief-examination must be accepted unless of course there are inherent improbabilities.
16. In the election petition the respondent undertook to prove the charge at the time of the enquiry. He made no attempt even to prove that the appellant had used transport for the conveyance of voters at other polling stations. The issue, therefore, was narrowed down to the use of a jeep car at the Amaravai polling station. Admittedly the respondent himself was not present at the polling station. Therefore, he could not have seen the transportation of voters by the jeep car.
He could not give the registration number of the jeep car. What is more, he did not even examine Narayan, his polling agent at Amaravai. This is a serious omission and no explanation has been attempted by the respondent for not examining this material witness; and it is reasonable to infer that Narayan, if examined, would not have supported his case. The respondent's case now rests on the sole testimony of P. W. 6.
The evidence of P.W. 6 is not satisfactory. He did not mention the name of any of the voters who were conveyed by the jeep car to the polling station. It is surprising that he was not even positive about the registration number of the jeep car or its colour though be was at a distance of 50 or 60 paces from the polling station watching the polling for 2 or 2 1/2 hours. He gave evasive evidence when he stated that the number of the jeep car 'may be H. T. U. 109', and its colour 'may be chocolate.'
He was not even certain that the jeep car belonged to the appellant. While at one place he asserted that it belonged to her, he further elaborated the statement that he meant that it belonged to her husband or sombody related to her. It appears from the evidence of P. W. 6 that Narayan, the polling agent himself, made no complaint about this. He had to be told by P. W. 6 that he should go and report the matter to the presiding officer.
It is clear, therefore, that but for the advice of P. W. 6. Narayan had no intention of making a complaint. It is not explained why Narayan who was at the spot failed to take notice of this serious transgression of the election law. P. W. 6 saw Narayan taking the complaint inside the polling booth but he did not care to know whether he delivered it to the presiding officer or not.
17. As has been pointed out by their Lordships of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, : 1SCR370 , charges of corrupt practice are quasi-criminal in character, and the allegations relating thereto must be sufficiently clear and precise and must be proved by evidence of a conclusive nature. The evidence adduced by the respondent to establish the corrupt practice under Section 123(5) is neither convincing nor conclusive
The assertion made by the appellant that she had not arranged a transport for the conveyance of voters at the Amaravai polling station, which is the only instance sought to be proved by the respondent, remained unchallenged, there being no cross-examination on the point. Narayan the most material witness in the case, has been kept away from the witness-box.
The evidence of P. W. 6 cannot be accepted at its face value. In addition to the above infirmities, there is the evidence of the presiding officer, P. W. 7, that when he came out of the polling station on receiving the complaint of the polling agent, he did not there find any jeep car or the voters being conveyed.
18. The Tribunal observed that in view of the specific allegation made by the respondent, it was necessary for the appellant to produce some record to show that no such jeep car was used by her or was in existence. While undoubtedly the burden of proof-lay heavily on the respondent to establish the charge of corrupt practice alleged by him, by positive evidence, the Tribunal reversed the rule as to onus by holding that it was for the appellant to prove the negative.
This wrong approach has vitiated the finding of the Tribunal. The finding reached by the Tribunal that the corrupt practice specified in Section 123(5) had been duly established against the appellant, is not a conclusion which any reasonable mind could judicially reach on the evidence adduced by the respondent. The only conclusion to which we can come to, on the evidence, is that the respondent had not discharged the burden and the finding of the Tribunal cannot be sustained.
19. In this view, the other contention raised by the learned counsel for the appellant that the Tribunal has not comprehended the true scope of Section 100 of the Act might not arise for consideration, but as we have heard arguments, we would do well to express our opinion thereon,
20. In the penultimate paragraph of its judgment, the Tribunal observed that
'considering the narrow margin of votes by which the petitioner(respondent herein) was defeated(78 votes only), I am inclined to hold that but for this corrupt practice on the part of the respondent(appellant herein), the result would have been otherwise. I, therefore, hold that the result of election had been materially affected by resorting to the corrupt practice mentioned in Section 123(5).'
21. The grounds for declaring the election of a returned candidate to be void are set out in Section 100 which, so far as is material for the present purpose, reads as follows:
'Grounds for declaring election to be void.-
(1) Subject to the provisions of Sub-section(2), if the Tribunal is of opinion--
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
x x x
(d) that the result of the election in so far asit concerns a returned candidate, has been materiallyaffected;
(ii) By any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent.
the Tribunal shall declare the election of the returned candidate to be void.'
22. The consequence of a returned candidate or his election agent or any other person with the consent of a returned candidate or his election agent, committing a corrupt practice is that the election is void under Section 100(1)(b). In a case coming under Section 100(1)(b) it is not necessary to prove that the result of the election has been materially affected thereby. But Section 100(1)(d)(ii) envisages a corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent.
In a case falling under Section 100(1)(d)(ii) it must be proved that the result of the election, in so far as it concerns a returned candidate has been materially affected. There is no finding by the Tribunal that the alleged corrupt practice had been committed by the appellant or her election agent. On the other hand, the Tribunal proceeded on the assumption that the case fell under Section 100(1)(d)(ii). If that is the assumption, on which the Tribunal's finding is rested, it is not possible to relieve the respondent of the duty imposed on him by law of establishing that the result of the election had been materially affected. This is a matter which had to be proved and he failed to discharge the onus.
23. Learned counsel for the respondent has then endeavoured to sustain the decision of the Tribunal by contesting the correctness of the findings on the other issues. The first of the grounds on which the election was sought to be set aside was that some persons, who were qualified to be enrolled as voters, had been excluded from the electoral lists of Harijan Vada, Dogarpet and Konderu.
Before the Tribunal, it was conceded by the respondent that the previous electoral rolls of Konderu village could not be secured with the result that it was only with regard to Harijan Vada and Dogarpet that the omission was held to have been satisfactorily established. The learned counsel has not been able to show that this alleged omission had the effect of vitiating the election under the Constitution or under the Act. Indeed, he eventually abandoned this contention.
24. Three other grounds remain, and the first of them is that the appellant was a partner of J.S. Narayana, who was a contractor for the supply of goods to the State Government. In his evidence the respondent stated that the appellant's husband and J.S. Narayana 'did business together', that J.S. Narayana was a contractor of irrigation canals in the Andhra Government and that the appellant also took a share out of the total profits earned by him.,
In cross-examination he admitted that he did not know whether J.S. Narayana was the partner of a firm, The appellant asserted that she had advanced a sum of Rs. 48,500/- under a promissory note dated 6-3-1956, and that by a general power of attorney dated 8-3-1956, it was agreed that the power of attorney agent should receive payment for the bills of J.S. Narayana and that the amounts so received should be adjusted towards the loan advanced by the appellant to J.S. Narayana.
Ex. B-2 is the general power of attorney and the document corroborates the evidence of the appellant, The respondent has not adduced any other evidence, and we are, therefore, satisfied that the conclusion of the Tribunal that there was no proof of the fact that the appellant was a partner of J.S. Narayana, is correct.
25. The other ground on which the election of the appellant was sought to be set aside was that the village officers of Vellore, Itkyal and Ramapuram actively canvassed in favour of the appellant, which is contrary to the provisions of Section 123(7)(f) of the Act, which reads :
'The following shall be deemed to be corrupt practices for the purposes of this Act :
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or, by any other person, any assistance(other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely :
(f) revenue officers including village accountants, such as, patwaris, lekhpals, talatis, karnamsand the like but excluding other village officers..................'
26. On behalf of the respondents, two witnesses were examined to prove this charge, and they are P.Ws. 2 and 8. P.W. 8 was the polling agent of the respondent and he admitted having canvassed for him at the time of the election. His evidence is interested. The evidence of P.W. 2, which is more or less to the same effect, is unworthy of credit; and the result is that there is no evidence worth the name in support of the charge made by the respondent.
27. The next charge on which the respondent grounded his election petition was that the Chief Minister and the Minister for Irrigation toured the Alampur constituency and addressed public meetings whereat they canvassed support for the candidature of the appellant. That they had done so is not in dispute. While holding that this would not constitute a 'corrupt practice' within the purview of Section 123 of the Act, the Tribunal felt constrained to observe that 'in the interests of fair and free elections the participation of highly placed persons of a particular party in the election campaign was not desirable.
This sententious observation does not find any warrant either in theory or practice of modern Democratic Government. It is true that public servants and ministerial officers ought not to take part in public affairs or participate in elections, but that interdict cannot apply to Ministers of Government.
28. It must be remembered that in our country there is a responsible system of Government both at the Centre and in the States. As pointed out by Berriedale Keith in his well-known Treatise, the Constitutional Law of the British Dominions :
'The essential basis of the working of a Responsible Government is the existence of the party system. The party serves to secure agreement on a course of action, the selection of candidates for election and the education of the electorate in the purposes of the party for which purposes public meetings, distribution of literature and canvassing are regularly employed and the persuation of voters to cast their suffrages at the elections for the candidates selected by the party organization.'
When candidates contest elections on the basis of their affiliation to a particular political party, there is nothing intrinsically wrong in Ministers canvassing support for their party candidates. This is not to say that Ministers are entitled to use their official position in any manner for the furtherance of the prospects of their party candidates or otherwise act in a manner which is not consistent with the Act. A minister merely by reason of his office does not suffer from any disability in this behalf; equally, by virtue of his office, he does not enjoy any special privilege. He has the same rights and obligations as any other citizen.
29. It is submitted by the learned counsel for the respondent that in England, Ministers do not take part in elections. No statutory rule or precedent has been brought to our notice that in England or other Commonwealth countries like Canada and Australia, where parliamentary democracy runs on party system, the Ministers are precluded from addressing election meetings and canvassing support for candidates belong to their own party. Under our Constitution or the Act, there is no such prohibition. In fact, the nature of party Government renders such a prohibition untenable.
30. In every State there is a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions. The Chief Minister is appointed by the Governor, and the other Ministers are appointed by the Governor on the advice of the Chief Minister and they hold office during the pleasure of the Governor.
The Council of Ministers are collectively responsible to the Legislative Assembly of the State. The leader of the party which commands the majority in the Legislative Assembly is entrusted with the task of forming the Government and the Ministers are chosen from the party. Therefore, the Chief Minister and other Ministers occupy a dual capacity.
In their capacity as leaders of their party, they have to explain to the electors the policies and programmes which they seek to enforce and one way of doing it is to ask the electors to vote for those who are pledged to support those policies and programmes. Presumably it is for this reason that Section 123(2)(b) of the Act provides that a declaration of public policy, or a promise of public action, shall not be deemed to he interference with the free exercise of any electoral right.
31. The last ground urged by the respondent is that the Chief Minister threatened voters with dire consequences if they did not support the appellant. The respondent examined P.Ws. 4, 5 and 9 for establishing these alleged threats. P.W. 4 deposed that the Chief Minister addressed a meeting in Alampur village and exhorted the electors to vote for the Congress and not for any other party.
It is conceded that no possible objection can be taken to this part of the exhortation. The witness also stated that he heard the Chief Minister saving that power was in his hands and that if they did not vote for the Congress party, they(voters) would be mined. P.W. 5 stated that he heard the Chief Minister saying that since the candidate with the cock symbol(the respondent) had been defeated twice, the cock should he destroyed and that if the voters voted for the Congress candidate, they would have many advantages and otherwise they would lose those advantages.
P.W. 9 deposed that he heard the Chief Minister saying that he would crush the people who opposed the Congress and that similarly he would crush the symbol(cock) under his feet. According to him, the Chief Minister said, 'Remember this.' It is worthy of note that P.Ws. 5 and 9 deposed in the witness-box that they voted for the Congress because they were frightened by what the Chief Minister stated. But curiously enough, this alleged fright did not prevent them from coming into the witness-box and giving evidence against the Congress candidate. The alleged speeches of the Chief Minister have admittedly not been recorded.
The witnesses have spoken to the contents of those speeches from their memory. The statements attributed to the Chief Minister look too crude and childish to have been made by a responsible person like the Chief Minister at a public meeting. The Tribunal rejected their testimony as untrustworthy and with this conclusion we entirely agree. None of the contentions raised by the learned counsel for the respondent can therefore be accepted.
32. Having regard to our above conclusions, we allow the appeal and dismiss the Election Petition of the respondent with costs, both here and before the Tribunal. Advocate's fee Rs. 300/-.