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Shantilal Vs. Bipinlal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 41 of 1963
Judge
Reported inAIR1964MP92; 1964MPLJ160
ActsRepresentation of the People Act, 1951 - Sections 77, 77(1), 77(3), 90, 120, 123, 123(6), 123(7); Madhya Pradesh Land Revenue Code - Sections 224 and 258; Code of Criminal Procedure (CrPC) - Sections 45; Conduct of Election Rules, 1961 - Sections 13(2) and 13(3); Code of Civil Procedure (CPC) - Rule 578; Code of Civil Procedure (CPC) ; Legal Practitioners Act, 1879
AppellantShantilal
RespondentBipinlal and ors.
Appellant AdvocateY.S. Dharmadhikari, ;M.V. Tamaskar and ;B.G. Karve, Advs.
Respondent AdvocateR.S. Dabir and ;V.S. Dabir, Advs. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredK. C. Sharma v. Election Tribunal Chhattarpur
Excerpt:
- - the appellant-shantilal, who was defeated at the election, then filed an election petition giving rise to this appeal, praying that the election of the respondent-bipinlal be declared void and that he, who had secured the largest number of votes after the said respondent, be declared duly elected. 10 produced by the appellant clearly indicated that roshanlal acted as bipinlal's polling agent; the object of the provision is clearly to prevent a candidate from using government-machinery or the influence of a government-servant in furthering the prospects of his election. discharge any police functions' occurring in sub-clause (f) clearly governs village revenue officers, known by whatsoever name, who have been excluded earlier in the clause from the category of revenue officers, 6......dixit, c.j.1. this is an appeal under section 116a of the representation of the people act, 1951, (hereinafter referred to as the act) against the order of the election tribunal, seoni, dismissing a petition filed by the appellant under section 81 of the act calling in question the election of the respondent no. 1, bipinlal, to the madhya pra-desh legislative assembly from waraseoni constituency.2. seven persons, including the appellant, filed their nominations for election from the said constituency. respondents nos. 5 and 6 withdrew their candidature. the respondent no. 1, bipinlal, secured the largest number of votes and was declared as elected candidate. the appellant-shantilal, who was defeated at the election, then filed an election petition giving rise to this appeal, praying that.....
Judgment:

Dixit, C.J.

1. This is an appeal under Section 116A of the Representation of the People Act, 1951, (hereinafter referred to as the Act) against the order of the Election Tribunal, Seoni, dismissing a petition filed by the appellant under Section 81 of the Act calling in question the election of the respondent No. 1, Bipinlal, to the Madhya Pra-desh Legislative Assembly from Waraseoni Constituency.

2. Seven persons, including the appellant, filed their nominations for election from the said constituency. Respondents Nos. 5 and 6 withdrew their candidature. The respondent No. 1, Bipinlal, secured the largest number of votes and was declared as elected candidate. The appellant-Shantilal, who was defeated at the election, then filed an election petition giving rise to this appeal, praying that the election of the respondent-Bipinlal be declared void and that he, who had secured the largest number of votes after the said respondent, be declared duly elected. The election of the respondent was sought to be set aside on several grounds which included charges of corrupt practices said to have been committed by him. For the disposal of this appeal, it is unnecessary to mention all of them as before us Shri Dharmadhikari, learned counsel for the appellant, assailed the findings of the Election Tribunal only in regard to four of the charges of corrupt practices set out in the election petition.

3. The appellant averred that the respondent Bipinial committed a corrupt practice under Section 123(7)(f) of the Act by appointing Roshanlal, who was Patel of village Seoni (Waraseoni), as his polling agent at booth No. 22 of Waraseoni; that as a Patel Roshanlal discharged Police functions; and that the respondent-Bipinlal utilized the services of Roshanlal 'in canvassing and furtherance of the prospects of his own election'. The material allegations in paragraph 4(c) of the election petition relating to this corrupt practice are as follows:

'That the Respondent No. 1 appointed on 21-2-1962 Roshanlal s/o Kushoba Patel of village Seoni (Waraseoni) as his Polling Agent for the polling booth No. 22, of Waraseoni No. 6, for the election for which the Respondent No. 1 has been declared as elected. That the said Roshanlal has been appointed as Patel and Mukaddam by Additional Deputy Commissioner, Waraseoni on 22-1-1956 in Revenue Case No. I/A of 1953-54 and he is continuing in that appointment. That Roshanlal is required to perform the Police functions, That the Respondent No. 1 has been utilizing the services of Roshanlal in canvassing and furtherance of the prospects of his own election'.

In his reply to the petition, Bipinlal admitted that he had appointed Roshanlal as his polling agent at the aforesaid polling booth. He, however, denied that Roshanlal was ever appointed as a Patel or that he discharged Police functions. In paragraph 4(c) of his counter-statement Bipinlal stated:

'It is denied that the said Roshanlal had been appointed a Patel and Mukaddam by the Additional Deputy Commissioner on 22-1-1956 in Revenue Case No. I/A/53-54. It is denied that the said Roshanlal continued in that appointment. It is denied that the said Roshanlal was required to perform Police functions. It is denied that a Patel or Mukaddam in Madhya Pradesh has to perform Police functions. It is denied that the answering respondent had been utilising the services of the said Roshanlal in canvassing and furtherance of the prospects of his election. It is denied that the conduct of the answering respondent amounts to corrupt practice envisaged under Clause 7 of Section 123 of the Representation oi the People Act.'

On these pleadings, the Tribunal framed the following two issues:

'4. (a) Whether the polling agent Roshanlal was Patel and Mukaddam at any material times?

(b) If so, whether in that capacity he was required to perform Police functions?

5. (a) Whether the respondent No. 1 utilized the services of the said Roshanlal in canvassing and for furtherance of his election prospects ?

(b) If so, whether the respondent No. 1 was guilty of corrupt practice under Section 123(7) oi the Representation of the People Act? Its effect?' The Tribunal held that admittedly Roshanlal was appointed by the respondent-Bipinlal as his polling agent for booth No. 22 of Waraseoni. It found that Roshanlal had been appointed as a Revenue Patel by the Additional Deputy Commissioner, Seoni, and he was a Patel at the material time, and that as a Revenue Patel he did not perform any Police functions. The Tribunal further held that the appellant had not been able to prove that Bipinlal utilized the services of Roshanlal 'in canvassing and for furtherance of his election prospects.'

4. Learned counsel for the appellant contended that the view of the Tribunal that Roshanlal did not discharge Police functions was erroneous; and that the duties of Patels enumerated in the rules framed under Section 258 of the Madhya Pradesh Land Revenue cCode, 1959, in Section 224 of the said Code, and in Regulations No. 688 of the C.P. and Berar Police Regulations as also Section 45, Criminal Procedure Code, showed that Revenue Patels appointed under the Land Revenue Code perform Police functions. It was further argued that the certified copy of the document of Roshamal's appointment as polling agent was wrongly excluded from consideration by the Tribunal; that the document was one by which Bipinlal made Roshanlal's appointment as polling agent, in Form No. 10 as required by Section 46 of the Act and Rule 13 of the Conduct of Election Rules, 1961, and the document was delivered to the Presiding Officer by Roshanlal as was evident from the fact that the appellant obtained a certified copy from the competent authority; that the document was open to inspection under Rule 93 of the Conduct of Election Rules, 1961, and was a public document which could be proved by production of a certified copy thereof; that the certified copy of Form No. 10 produced by the appellant clearly indicated that Roshanlal acted as Bipinlal's polling agent; and that, therefore, under Explanation (2) to Section 123 it must be taken that Roshanlal assisted in the furtherance of the prospects of Bipinlal's election. It was also urged that the Tribunal wrongly discarded the evidence of Nanhudas (P. W. 13), who deposed that Roshanlal canvassed for Bipinlal. and erred in holding that the appellant Shantilal had no personal knowledge as to whether Roshanlal rendered any assistance to Bipinlal for the furtherance of prospects of his election.

5. In connection with this contention advanced on behalf of the appellant, the principal question that arises for determination is one of the true construction of Section 123(7)(f) of the Act, and whether a Patel appointed under the M. P. Land Revenue Code discharges any Police functions. The corrupt practice mentioned in Clause (7) of Section 123 is in the following words:

''(7) The obtaining or procuring or abetting, or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of the candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

(f) revenue officers other than village revenue officers known as lambardars, malguzars, Patels, deshmukhs, or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and* * * *

The second Explanation to Section 123 says :

'(2) For the purposes of Clause (7), a personshall be deemed to assist in the furtherance of theprospects of a candidate's election if he acts asan election agent, or a polling agent or a countingagent of that candidate.'

It is clear from the plain wording of Clause (7) that the corrupt practice under that Clause consists in the candidate, or someone acting on his behalf, obtaining or procuring or abetting or attempting to obtain or procure the assistance of persons in the service of the Government for the furtherance of the prospects of the candidate's election. The object of the provision is clearly to prevent a candidate from using Government-machinery or the influence of a Government-servant in furthering the prospects of his election. Sub-clause (f) of Clause (7) makes the obtaining or procuring, or abetting or attempting to obtain or procure, any assistance from a revenue officer a corrupt practice. But it excludes from the category of revenue officers, village revenue officers, known by whatsoever name, whose duty is to collect land revenue and who are remunerated by share of, or commission on, the amount of land revenue collected by them but who do not discharge any Police functions. If a village revenue officer discharges any Police function, then the obtaining or procuring, or abetting or attempting to obtain or procure, assistance from him is also a corrupt practice. This is the plain meaning of Clause (7). Shri Dabir, learned counsel appearing for the respondent-Bipinlal suggested that Sub-clause (f) covers only those revenue officers who discharge police functions and that a Patel is not a revenue officer under the Land Revenue, Code. We are unable to accept the construction sought to be put by the learned counsel for the respondent, which is against rules of grammar and the plain language of Sub-clause (f). The words 'other than village revenue officers' in Sub-clause (f) plainly show that but for the use of those words the village officers would have fallen, under the connotation of 'revenue officers' as used in Sub-clause (f). The expression ''who do not. discharge any police functions' occurring in Sub-clause (f) clearly governs village revenue officers, known by whatsoever name, who have been excluded earlier in the Clause from the category of revenue officers,

6. If a village revenue officer is enrolled as a Police Officer under the Police Act, 1861, and is thus a member of the police force, then the obtaining or procuring, or abetting or attempting to obtain or procure, from him any assistance for the furtherance of the prospects of the candidate's election would be prohibited under Clause (d) of Suction 123(7) of the Act. If village revenue officers are not members of police forces but discharge any police function, it is Clause (f) that prohibits the obtaining or procuring, or abetting or attempting to obtain or procure, from them any assistance for the furtherance of the prospects of one's election. The question whether a Patel under the Land Revenue Code discharges police functions has necessarily to be answered with reference to the meaning of 'police functions' and the duties of a Patel.

Now 'police functions' have not been defined anywhere. From their very nature they are incapable of any very exact definition. The police functions spoken of in Sub-clause (f) clearly refer to the functions which a police officer discharges under the Police Act, 1861, with the powers and authority he has under the Police Act and the Code of Criminal Procedure. Sections 20 and 23 of the Police Act deal with the authority to be exercised by police officers and their duties. Under Section 20 of the Police Act a police office: enrolled under the said Act cannot exercise any authority except the authority provided for a police officer under that Act and any Act for regulating criminal procedure. Section 23 enume rates the various duties of a police officer. The important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances, to detect and bring offenders to justice, and to apprehend all persons whom the police officer is legally authorized to apprehend. The duties imposed on police officers under Section 23 of the Police Act were examined by the Supreme Court in State of Punjab v. Earkat Ram, AIR 1962 SC 276, and it was observed that

'it is clear in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order.'

The essential police function thus consists in the 'effective prevention and detection of crime in order to mantain law and order'.

The Code of Criminal Procedure contains various provisions giving - to the Police the powers of search, arrest, detention, investigation of crime, apprehension of persons etc. But they are all powers necessary to enable a police officer to fulfil the police function, namely, that of the effective prevention and detection of crime and of bringing offenders to justice.

7. Turning now to the duties of Patels appointed under the Land Revenue Code, Section 224 of the Code prescribes that it shall be the duty of every Patel to collect and pay into the Government treasury land revenue and cesses, to furnish reports regarding the state of his village to the Collector as directed by him, to prevent as far as possible encroachments on waste land, public paths and roadways in the village, to preserve and take care of boundary marks, to keep the village in good sanitary condition, (to prevent unauthorized cutting of wood or unauthorized removal of minerals or other properties belonging; to the Government, to control and superintend the Kotwar, to take such steps as may be necessary to compel the Kotwar to perform his duties-and to perform such other duties as may be prescribed by rules made under Section 258 of the Code. Rule 18 of the rules framed under Section 258 of the Land Revenue' Code enumerates various duties of every Patel. Almost all the duties comprise in rendering assistance to officers of Government, public servants, Patwaris, revenue inspectors in the discharge of their duties and to make reports to the competent authority on various matters. Every Patel is required inter alia- to report the commission of, or intention to commit, in or near his village any non-bailable offence, any offence under the Madhya Pradesh Game Act, 1935, any offence against the wild Birds and Animals Protection Act, 1912, the movements of suspicious characters and persons under police surveillance, and to report any matter likely to affect the maintenance of law anj order or the prevention of crime or the safety of person or property in regard to which the District Magistrate has directed him to communicate information.

A Patel has also to make reports in regard to any treasure found in the village and as regards any property left by a person dying intestate or without a known heir. Pie is also required to arrange for the burial of deceased paupers, strangers and friendless travellers and to report fires and conflagrations, and to supervise bazars and fairs. He can also employ the village Kotwar in such a way as to afford the utmost possible security against robbery, breach of the peace, and acts injurious to the public and to report to the Tehsildar all instances of misconduct and neglect committed by the village Kotwar. When the District Superintendent of Police inspects police stations, the Patel has to meet him in conference and discuss ways and means of furthering the efficiency, of village police. It will be seen from the enumeration of duties of Patels in Section 224 of the Land Revenue Code and rules made under Section 258 that a Patel does not discharge police functions. The making of reports on various matters without any more, holding conferences with the District Superintendent of Police, supervising bazars and fairs and keeping the village in good Santiary condition cannot in any sense be regarded as functions for the effective prevention and detection of crime in order to maintain law and order.

Our attention was drawn to regulations 321 to 328 and regulations 414, 415, 418 and 419 of the C. P. and Bcrar Police Regulations to show that some of the duties of the police are similar to those of the Patel enumerated in Rule 18 of the rules framed under Section 258 of the Land Revenue Code. It was said that the police also has to supervise fairs and make sanitary arrangements thereat, to control and put out fires, to make reports about missing persons and to take charge of unclaimed property. It is no doubt true that some of the duties performed by a Patel are similar to those which a police officer is required to perform under the Police Regulations. But this similarity does not make the Patel a person discharging any police function. There is a real distinction between 'any police functions'' and 'any duty discharged by a police officer''. The essential police function consists in the prevention and detection of crime in order to maintain law and order and not in supervising fairs or controlling and putting out fires and arranging for the disposal of a treasure found or property of persons dying intestate and without heirs. As a Patel no duty is cast on a person to arrest anyone. It is true that under Section 224 of the Land Revenue Code a Patel has to take such steps as may be necessary to compel the Kotwar to perform his duties and to employ him in such a way as to afford the utmost possible security against robbery, breach of the peace etc. But in exercising this control over the village Kotwar, the Patel does not discharge any police function but only exercises the power of control and superintendence he has over the Kotwar. A reference was also made to Section 45, Cri. P. C. which requires every village head-man and watchman, village police officer, owner or occupier of the land etc., to communicate to the nearest Magistrate or officer in charge of the nearest police station any information which he may possess regarding the matters mentioned in that provision. Even if it be assumed that a Patel falls under the category of persons enumerated in Section 45, Cri. P. C., that does not carry the matter any further. If a Patel discharges any duty under Section 45, he only does what any private person is bound to do under Section 44, Cri. P. C. It could scarcely be said that a private person is a police officer or discharges police function because of the duty imposed upon him by Section 44, Cri. P. C. or the authority to arrest given to him under Section 59, Cri. P. C. In our judgment, a Patel appointed under the M. P. Land Revenue Code does not discharge any police functions. The appointment therefore of Roshanlal by the respondent-Bipinlal as his polling agent does not come within the mischief ot Section 123(7)(f) of the Act.

8. In this view of the matter, it really becomes unnecessary for us to consider whether Roshanlal did act as a polling agent of the respondent Bipinlal. But as the question whether Roshanlal acted as a polling agent and rendered any assistance to Bipinlal for the furtherance of his election prospects was debated at the Bar, it must be observed that in the election petition there is no clear averment as to whether Roshanlal acted as Bipinlal's polling agent. But the tribunal was not justified in excluding from consideration the certified copy of Form No. 10 filed by the appellant to show that Roshanlal did act as a polling agent. Under Rule 13(3) of the Conduct of Election Rules, 1961, a polling agent cannot be admitted into the polling station unless he has delivered to the Presiding Officer the instrument of his appointment under Sub-rule (2) of Rule 13 after duly completing and signing before the Presiding Officer the declaration contained therein. The certified copy filed by the appellant contains such a declaration and was obtained by him from the competent authority. If, therefore, Roshanlal, did deliver to the Presiding Officer the instrument of his appointment and sign before him the necessary declaration, then it would be legitimate to think that Roshanla! did begin acting as a polling agent of Bipinlal. If after his appointment as a polling agent Roshanial did act in that capacity, then under Explanation (2) to Section 123 it would be deemed that he assisted in furtherance of the prospects of Bipinlal's election. No evidence would then be necessary for proving that he assisted for the furtherance of the prospects of the respondent's election. The statement of Nanhundas (P. W. 13) that Roshanlal asked him to vote for the respondent No. 1 was rightly rejected by the Tribunal on the grounds that it did. But the Tribunal was clearly in error in observing that trie appellant himself had no personal knowledge as to whether Roshanlal rendered any assistance. In saying so, the Tribunal ignored the statement elicited in the appellant's cross-examination that on 13th February 1962 he had seen Roshanlal distributing in a procession leaflets and handbills on behalf of respondent No. 1 and at that time he was displaying the symbol of 'bicycle' allotted to the respondent-Bipinlal. There is no reason whatsoever for not acting on this statement of the appellant which unmistakably shows that Roshanlal assisted the respondent Bipinlal for the furtherance of Bipinlal's election prospects. In our opinion, on the material on record, it is clearly established that Roshanlal acted as a polling agent of Bipinlal and assisted him for the furtherance of the prospects of Bipinlal's election. But as he was not discharging any police functions, the respondent-Bipinlal cannot be said to have committed a corrupt practice under Section 123(7)(f) of the Act by the employment of Roshanlal as his polling agent and his acting as such.

9. The finding of the Tribunal which the learned Counsel for the appellant next attacked is in regard to the allegation of the appellant in the election petition that four days before the election the respondent-Bipinlal made a promise in the presence of Baliram and other voters to construct a well involving an expenditure of about Rs. 2,000/- for the villagers of Mehendiwada in case they voted for him, and that this amounts to bribery and was a corrupt practice under Section 123(1) of the Act. In his reply, Bipinlal denied having made any such promise at any time. According to him, at a meeting held on 9th May 1962, the District Advisory Committee proposed construction of wells in Mehendiwada and other villages at a total cost of Rs. 2000/-; that the Central Government contributed Rs. 1000/- towards the cost, the contribution of the State Government was Rs. 500/-, and the remaining Rs. 500/- were to be contributed by the public; and that this proposal was approved and sanctioned by the Collector, Balaghat, on 29th May 1962 and thus the well came into existence. The Tribunal found that the appellant had not been able to establish the allegation about this corrupt practice.

10. We agree with the Tribunal that this charge has not been proved. At the trial, the appellant sought to establish the charge by the evidence of P. W. 19 Gyandeo, P. W. 20 Tukaram, P. W. 21 Ramaji and P. W. 27 Mohammad Rafa. These witnesses were rightly held by the Tribunal to be unworthy of any credence. The appellant himself had no personal knowledge whatsoever as to how, when, in what circumstances and at whose instance the well was sunk. He admitted this while giving evidence (see paragraph 22 of his deposition). He stated that about a month and a half after, the election he learnt from one Tikaram that Bipinlal was getting the well sunk. Tikaram was not tendered in evidence. Nor was Bahrain, in whose presence the alleged promise was said to have been made, examined by the appellant. P. W. 19 Gyandeo gave the statement that some four days before the election Bipinlal came to the village and said that if the villagers had any difficulty, in regard to water-supply, then he would get a well constructed. According to the witness, this statement was made not at any meeting but in the course of talks that Bipinlal had with Pandu, Shambhu and some other persons. No reliance can be placed on this statement of Gyandeo.

Pandu and Shambhu were not produced in evidence and according to Gyandeo himself he was not in the group to whom Bipinlal, according to him, made the statement about the construction of a well. He was at that time at a Pan shop. He only saw Bipinlal passing in a car and going to the Gondi Mohalla of the village. The witness denied having any knowledge whether the well that was constructed was with the funds provided by the Government. He confessed that he did not know who took the contract for the construction of the well, and who paid the labourers and suppled material for the construction of the well. He further added that he never mentioned to the anpellant-Shantilal about the statement Bipinlal was paid to have made about the construction of a well. If that be so, it is surprising how the appellant tendered in evidence Gyandeo as a person who had knowledge of the promise alleged to have been made by Bipinlal. P. W. 20 Tukaram did not depose to any promise about the construction of a well having been made by Bipinlal. He said that he did not know who got the well sunk and that on Shivratri day the well was 'inaugurated' by Bipinlal. From the mere fact that the 'inauguration' or 'opening ceremony' of the well was done by Bipinlal it does not follow that the well was the result of a promise made by him on the eve of election in regard to the construction of a well.

11. The evidence of P. W. 21 Ramaji is of a partisan witness. He first said that some two days before the polling Bipinlal had told, him that he would get a well constructed in case the villagers voted fcr him; and that when the well was ready its 'inauguration' was done by Bipinlal on Shivratri day. Then he made the inconsistent statement that he had no idea whatsoever as to who got the well constructed. The partisan character of this witness is exhibited by the fact that this witness was the Sarpanch of the Gram Panchayat in March 1962. On 22nd March 1962 he got a resolution (Ex. P/9 -- p. 282 of the paper-book) passed by the Gram Panchayat expressing to Bipinlal thanks of the Gram Panchayat having fulfilled his promise of construction of the well. The witness admitted that on this date the well was not even ready and complete. When he was asked to explain as to how the resolution mentioned about the fulfilment of the promise when the well was not ready and complete, he answered by saying that Mahadeo Dekate, who seconded the resolution, would explain the matter. It is in evidence that it was the passing of this resolution that compelled Ramaji to resign the office of Sarpanch. Ramaji was succeeded by R. W. 5 Sheikh Rahim. During his regime as Sarpanch the Gram Panchayat passed two resolutions, one on 27th April 1962 and another on 9th May 1962 rescinding the resolution, dated 22nd March 1962, of thanks giving to Bipinlal and making it very clear that the well was constructed by contributions from Government and public and making the contribution of Rs. 300/-on behalf of the Gram Panchayat towards the cost of the construction of the well.

The circumstances deposed to by Ramaji and Sheikh Rahim as to the circumstances in which the three resolutions were passed only reveal the interest of Ramaji in the appellant and suggest that the resolution which Ramaji got passed thanking Bipinal for having fulfilled his alleged promise about the construction of well was a step obviously taken for helping the appellant. The evidence of P. W. 27 Mohammad Rafa is no better. According to this witness, when Bipinlal visited the village and the villagers told him that they had considerable difficulty in regard to water-supply, he told them that he would get the well constructed after the election. This statement of the witness cannot be acted upon when he was unable to depose to the details of the place, time and circumstances in which Bipinlal. according to him, gave the assurance and when he confessed that he did not know anything about the well which was sunk in Mehendiwada and said that he had no idea who got it constructed and bore the expenses.

12. In his evidence, Bipinlal denied having made any promise to the electors that in case they voted for him he would have a well sunk in the village at his cost. He has, no doubt, admitted that after the election, on Shivratri day, he did the ceremony of the commencement of the constructional work of the well, but this function he performed in his capacity as a Member of the Legislative Assembly. As stated earlier, the fact that Bipinlal performed the ceremony referred to above does not lead to the conclusion that he held out to the electors the promise attributed to him by the appellant. The matter is clinched by the statement of R. W. 4 Laxman Subedar, who was the Block Development Officer of Waraseoni at the material time. His statement was that a grant of Rs. 2000/- was made for the well that was constructed in Mehendiwada village and that the amount of Rs. 2000/- was made up of, a grant of Rs. 1000/- by the Central Government, a grant of Rs. 500/- by the State Government, and Rs. 500/- contributed by the public. This statement clearly shows that the well in question was not the result of any promise made by the respondent-Bipinlal; and if it was not so, then the possibility of Bipinlal having made any such promise altogether disappears. In our judgment, the Tribunal rightly concluded that the appellant has not been able to prove the charge of corrupt practice, namely, that the respondent-Bipinlal made a promise to the voters of Mehendiwada on the eve of election that if they voted for him he would have a well sunk in the village.

13. Lastly, learned counsel for the appellant challenged the correctness of the finding of the Tribunal in regard to a charge of corrupt practice under Section 123(6) of the Act. The relevant averment made by the appellant in regard to this charge is as follows:

'That the Respondent No. 1 did commit the corrupt practice falling under Section 123(6) of incurring or authorising of expenditure in contravention of Section 77 of the Representation of the People Act 1951. The expenses permitted according to maximum limit is Rs. 7000/- while the Respondent No. 1 has shown the amount of Rs. 6008.26 nP as his expenses; the expenditure incurred by Respondent No. 1 is in excess of the prescribed limit. The suppression is fraudulent and maintenance of accounts and vouchers is also contrary to law.'

The appellant then stated the various items of expenditure which, according to him, the respondent had incurred but had not shown in the statement of account lodged by him with the Returning Officer under Sections 77 and 78 of the Act, Of these items of expenditure, some were abandoned by the appellant himself at the trial and others were found by the Tribunal as not proved to have been incurred by the respondent No. 1.

The only two items of alleged expenditure, which were negatived by the Tribunal and were pressed before us, relate to an expenditure of Rs. 625/- said to have been incurred by Bipinlal for the printing of a pamphlet dated 12th February 1962 by Eharat Press, Balaghat, and an expenditure of Rs. 2,000/- for petrol purchased for cash from Shastri Brothers of Waraseoni. Taking the item of Rs. 625/- first, the appellant has not specified the pamphlet in respect of which the expenditure was said to have been incurred. In the affidavit filed with the petition, there is no mention at all of this expenditure, The specification of the pamphlet was necessary as on 12th February 1962 two pamphlets were issued, one (Ex. P/4) by Lochansingh and the other (Ex. P/6) by the respondent No. 1. It, however, appears from the list of documents filed by the appellant along with the petition that the expenditure of Rs. 625/- has reference to the pamphlet (Ex. P/4) issued by Lochansingh. Bipinlal denied having committed any corrupt practice under Section 123(6), and said that the account of election expenses maintained by him and lodged with the Returning Officer was correct and there was no 'fraudulent suppression' of any item. The reply he made to the appellant's, allegation with regard to the alleged expenditure of Rs. 625 / - was in the following terms;

'It is denied that this respondent got the pamphlet styled as

^^okjkflouh fo/kku {ks=ds ernkrkls vihy**

by Bharat Press of Balaghat. It is denied that 23,000 copies of this leaflet were got printed. This leaflet was got printed by one Lochansingh who had placed an order for supply of 25,000 copies at Rs. 25/- per thousand but on account of heavy pressure of work only 10,000 copies were printed and supplied by the Press. It is denied that this respondent paid Rs. 625/- to the Bharat Press. Lochansingh paid Rs. 250/- through this respondent. Since the Bill and receipt were consolidated ones, the payment of Rs. 480/- has been shown in the return of expenses.'

In our opinion, the Tribunal was right in holding that the appellant had failed to establish that Bipinlal had omitted to show in the account of his election expenses the expenditure incurred in the printing of the pamphlets (Exs. P/4 and P/5). The appellant himself could not tell from his personal knowledge whether this expenditure was or was not incurred. He did not examine Lochansingh or Prayag Datta Tiwari, the proprietor of the Bharat Press. Not only that, when Bipinlal sought to tender in evidence Prayag Datta as a witness on his behalf, the appellant strongly opposed the step with the result that Prayag Datta was not examined at all. White giving evidence Bipinlal first clarified that in his reply he had through some inadvertence denied having got the pamphlet (Ex. P/6) printed. He said that the denial was really in regard to Ex. P/4, a pamphlet got printed by Lochansingh. The witness added that the total amount paid to the Press for the printing of both the pamphlets (Ex. P/4 and E. P/6) was Rs. 480/-which he had shown in his account, and that this amount of Rs. 480/- included the amount which Lochansingh was required to pay for the printing of Ex. P/4. Thus according to Bipinlal he showed in the account of his election expenses not only the expenses incurred by him for the printing of Ex. P/6 but also the amount spent by Lochansingh for the printing of Ex. P/4, which pamphlet contained inter alia an appeal to the voters to vote for Bipinlal. There is no reason whatsoever for discarding this statement of Bipinlal when on behalf of the appellant no attempt was at all made to establish that in fact Rs. 625/-were paid to the Bharat Press for the printing ot Exs. P/4 and P/6 or for the printing of Ex. P/4 alone.

Learned counsel for the appellant laid somestress on the difference between the statement of Bipinlal while giving evidence as regards the number of copies of the pamphlet (Ex. P/6) which were got printed and the number '25000' printed at the end of the pamphlet itself. It was said that if 25000 copies were actually got printed and the printing rate according to Bipinlal himself was Rs. 25/- per thousand, then the expenditure incurred on the printing of the pamphlet must have been Rs. 625/-. It is no doubt true that the statement of Bipinlal that though an order for printing 25000 copies was given actually 11000 printed copies of the pamphlet were supplied by the Press does not agree with the figure '25000' mentioned in the pamphlet. But this discrepancy with regard to the number of copies cannot furnish adequate ground for rejecting the unequivocal and uncontradicted statement of Bipinlal that the total bill of the Bharat Press for the printing of the two pamphlets was for Rs. 546/-, which included Rs. 21/- as sales tax; that the Press-owner agreed to 'give up his claim for Rs. 66/- and thus a total amount of Rs. 480/- was paid to the Press. The reason is that the figure '25000' appearing in the pamphlet cannot be regarded as decisive of the fact that, that number of pamphlets were actually printed. It is possible that while composing the pamphlet the figure '25000' was inserted, but for some reason, such as shortage of paper or labour, want of time, that number of printed copies of the pamphlet could not in fact be supplied by the Press.

14. In this state of evidence, the Tribunal was right in holding that the appellant had failed to show that an expenditure of Rs. 625/- was incurred over the printing of the pamphlet as alleged by him. Under Section 123 (6) the corrupt practice consists in the interring or authorising of expenditure in contravention of Section 77 and not in any omission to include certain item of expenditure in the account of election expenses as required by Section 77 (T). As pointed out by this Court in K. C. Sharma v. Election Tribunal Chhattarpur, AIR 1958 Madh Pra 236, Sub-section (6) of Section 123 does not mean that omissions in the accounts can be pointed out and the election tribunal made to embark upon an enquiry as to what was actually spent or not, and that for a charge under that provision it is necessary to show the incurring or authorizing of expenditure in contravention of Section 77(3) of the Act. It is now firmly settled that the burden of establishing a corrupt practice is on the person alleging it and that it must be established beyond reasonable doubt by clear and positive evidence. The appellant led no such evidence. A conclusion on a charge of corrupt practice cannot be based on mere conjectures or surmises which cannot take the place of legal evidence.

15. In regard to the alleged expenditure of Rs. 2,000/- incurred by the respondent Bipinlal on account of petrol purchased for cash from Shastri Brothers, there was no material before the Tribunal on which it could have reached the finding that the said respondent purchased petrol of this value from Shastri Brothers and that the petrol purchased was used for vehicle or vehicles which Bipinlal used for election purposes. In his evidence, the appellant admitted that he did not know how much petrol and of what value Bipinlal purchased during lie election from Shastri Brothers. He said that the amount of Rs. 2,000/-, which he had stated in the election petition, was a conjectural estimate and he did not at any time go to Shastri Brothers and see any bills issued by Shastri Brothers for petrol sold by them to the respondent. When the appellant said that he did not see any bills he had also to say naturally that he did not see in whose names the bills wera issued.

In order to support his averment in the petition that Bipinlal 'purchased for cash from Shastri Brothers' petrol of the value of Rs. 2,000/-, the appellant had summoned M. G. Shastri to give evidence on his behalf. The witness was summoned accordingly. When he did not appear, a bailable warrant was issued for his appearance at the request of the appellant. Even then M. G. Shastri did not appear but sent an application to the Tribunal saying that he was suffering from 'blood-pressure' and was, therefore, unable to attend, enclosing with his application a medical certificate to that effect. Then the appellant made an application for having Shastri's evidence recorded on commission. This prayer was granted and a Commissioner was appointed. But again he could not be examined on account of his illness. Thereafter the appellant made an application on 3rd January, 1963, that M. G. Shastri was ill and that, therefore, he should be permitted to summon and examine instead W. G. Shastri and Debiprasad Munim. In this application, the appellant stated that he had had opportunity to inspect the account books of the firm of Shastri Brothers on 20-12-1962 and he has noticed the relevant entry there. 'The account books were shown by Shri W. G. Shastri, partner, and Debiprasad Munim'. This application came up for consideration before the Tribunal on 3rd January, 1963, on which the Tribunal made an order that a copy of the application be delivered to the respondent Bipinlal and that the application would be taken up for further consideration on 16th January, 1963.

On 16th January, 1963, the respondent filed his reply to the appellant's application dated the 3rd January, 1963. Bipinlal strongly opposed the prayer of the appellant on the ground that W. G. Shastri and Debiprasad Munim were not first cited as witnesses in the list of witnesses filed by Shantilal (appellant) on 1st October, 1962; that the appellant had never relied upon the account books of Shastri Brothers and had not shown those account books in the list of documents which he had filed; and that on his own showing the appellant did not consider the evidence of these two persons material till 2oth December, 1962. On 21st January, 1963, the Tribunal rejected the appellant's prayer mainly on the grounds that the appellant had never mentioned the names of these persons in the list of witnesses he had given, that he had never relied on the account books of Shastri Brothers, and that the appellant could have made this prayer much earlier but that the appellant insisted on having M. G. Shastri's evidence recorded on commission knowing full well that he was ill and did not ask for examination of any substitute witnesses even when on 19th December, 1962, it was made very clear to the appellant that his evidence 'stands closed on the Commissioner's returning the papers with or without examination of M. G. Shastri'.

16. Shri Dharmadhikari, learned counsel for the appellant, argued that the Tribunal wrongly prevented the appellant from tendering in evidence W. G. Shastri and Debiprasad to support his allegation about purchase of petrol of the .value of Rs. 2,000/-. It was said that the appellant's application dated the 3rd January, 1963, was kept pending for nearly three weeks and that the Tribunal could have disposed of that application on 3rd January, 1963, itself after hearing the respondent Bipinial and that if the application had been granted on that date the witnesses could have been examined before 21st January, 1963, on which date the application dated 3rd January, 1963, was rejected on the ground that it was belated. While at is true that the Tribunal could have disposed of the appellant's application dated 3rd January, 1963, on that very date or earlier than 21st January, 1963, the delay in the disposal of that application cannot be urged as a justification for granting that application. The Tribunal did not reject the appellant's prayer for the examination of W. G. Shastri and Debiprasad on the ground that their examination would delay the disposal of the election petition. The rejection of the prayer was based on the grounds that the appellant had never included the Lames of the two witnesses in question in the list of witnesses he had filed and that he could have at the stage when he applied for the issue at a commission for the examination of M. G. Shastri made a prayer that in place of M. G. Shastri he should be allowed to examine W. G. Shastri and Debiprasad. The validity of these reasons becomes obvious when one considers the implication of the averment in the election petition that petrol of the value of Rs. 2,000/- was 'purchased for cash'' from Shastri Brothers, of the statement made by the appellant on 3rd December, 1962, that he had never made any enquiries about the purchase of petrol from Shastri Brothers and had not seen any bills of theirs, and of the statement made in the appellant's application dated 3rd January, 1963. that the appellant had an opportunity of inspectnig the account books of Shastri Brothers on 2oth December, 1962, and he then noticed 'a relevant entry'.

It will be seen that the case, as stated in the petition, was one of cash purchase of petrol, whereas in the application dated the 3rd January, 1963, the appellant sought to establish that the petrol was sold on credit and there was an entry in the account books of Shastri Brothers about this credit sale and that the evidence of W. G. Shastri and Debiprasad Munim was necessary to prove the entry in the account books. If, as alleged in the petition, the sale of petrol was for cash, then there was no question of any entry in the name of the respondent Bipinial in the account books of Shastri Brothers with regard to this cash transaction. It is easy to see that it was for this reason that the appellant did not mention, an the list of documents relied on by him, the account-books of Shastri Brothers and did not make at any time till 3rd January, 1963, the prayer for being allowed to examine W. G. Shastri and Debiprasad Munim to establish the sale of petrol with reference to some entry in the account books of Shastri Brothers. Ey his application dated the 3rd January, 1963, the appellant attempted to set up a new case, namely, the sale of petrol on credit and sought to prove it by the evidence of two new witnesses. He was rightly disallowed to do so when he had specifically stated in the election petition that petrol of the value of Rs. 2,000/-was purchased on cash from Shastri Brothers.

It must also be noted that even if W. G. Shastri and Debiprasad Munim had been examined to show that petrol of the value of Rs. 2,000/-was sold by M/s Shastri Brothers to Bipinial, that by itself would not have been sufficient to reach the conclusion that petrol of that value sold to Bipinial was used by him in a vehicle or vehicles used by him for election purposes. Unless and until it is proved that petrol of the value of Rs. 2,000/- was utilized by Bipinial for the running of vehicles used by him for election purposes, that amount could not be added to the amount of election expenses shown by Bipinial so as to lead to the exceeding of the maximum amount of election expenses prescribed. In his election petition, the appellant gave no particulars of the vehicle or vehicles for the running of which the petrol said to have been purchased from Shastri Brothers was utilized and say that those vehicles were used by the respondent No. 1 for election purposes during the relevant period. It is also surprising that the respondent No. 1, without asking for any particulars, gave the reply that he had purchased petrol and mobil oil of the value of Rs. 914.40 nP. and Rs. 174/- respectively, that M/s Shastri Brothers were paid this amount and it was shown by him in the return of expenses, and that the total of Rs. 2000/- given by the appellant was 'of a falsely alleged figure'. The parties thus went to trial despite the absence of full particulars of the use of petrol of the value alleged by the appellant for election purposes.

The evidence which the appellant led or intended to lead was only for the purpose of proving the alleged purchase and was not directed for showing in addition that the petrol was used by Bipinial for the running of certain vehicles for election purposes. From the mere fact that during the relevant period Bipinial possessed a vehicle or vehicles and on proof that petrol of the value of Rs. 2,000/- was purchased from Shastri Brothers, an inference that the said vehicle or vehicles were used for election purposes and for no other pur pose would not necessarily follow. What the appellant was required to allege and prove was not only the charges paid for the petrol purchased but also the use of that petrol for the running of certain vehicles, and the mileage that the vehicles did during the election period for election purposes. It may be difficult for the appellant to prove these facts positively. But the impossibility of proof of actual election expenses, which go to make a contravention of Section 77(3) of the Act, can constitute no ground for dispensing with the actual proof necessary for establishing the allegation. Merely proving that the respondent was in possession of certain vehicle or vehicles during the election time and that he purchased petrol of a certain value may only lead to a suspicion that the vehicles were used for the purposes of election and the petrol purchased was used for the running of those vehicles. But an inference in regard to corrupt practice under Section 123(6) of the Act cannot be drawn on 'suspicious circumstances''. It can be based only on cogent, positive, specific and definite evidence.

17. We are, therefore, of the opinion that the Tribunal was right in holding that the appellant had altogether failed to establish that Bipinlal purchased petrol of the value of Rs. 2000/- from Sashtri Brothers. What we have said above is sufficient for the rejection of the plea, which the learned counsel for the appellant made during the course of his arguments, that the evidence of W. G. Shastri and Debiprasad Munira should be recorded now.

18. Lastly it was submitted by the learned counsel for the appellant that the counsel's fee of Rs. 2950/- allowed to the respondent Bipinlal was disproportionate and could not be allowed when his (Bipinlal's) counsel had not filed any certificate of fees before the delivery of judgment of the Tribunal as required by the rules framed by this Court in regard to taxation of costs in suits. This objection cannot be accepted. Under Section 120 of the Act costs, including pleader's fees, are in the discretion of the Tribunal. Having regard to the course of the trial of the election petition and the time and the number of hearings involved in it, we do not think that the award of Rs. 2950/-as counsel's fee to the respondent No. 1 is unreasonable. It is true that according to Rule 578 of the Rules and Orders (Civil) counsel's fee cannot be taxed in a suit unless the party claiming to have the fee allowed files before the delivery of the judgment or the order, by which costs become payable, a certificate signed by the advocate certifying the amount of fee actually paid by or on behalf of his client. But this rule, which governs taxation of costs in suits, cannot be applied for taxation of costs in an election petition. The rules given in Chapter 27 of the Rules and Orders (Civil) with regard to taxation of counsel's fee are rules made by this Court under Sectitn 27 of the Legal Practitioners Act, 1879, read with Article 227 (3) of the Constitution. They are not rules made under the Code of Civil Procedure. That being so, it cannot be argued that inasmuch as Section go of the Representation of the People Act, 1951, makes the Civil Procedure Code applicable as nearly as may be to the trial of an election petition, therefore, the rules framed by this Court with regard to taxation of costs in suits also apply. The Tribunal allowed to the respondent No. 1 counsel's fee as 'per their certificates'. The respondent's counsel had filed certificates of the fees received by them though one certificate was filed after the delivery of the judgment of the Tribunal. On these certificates the Tribunal was satisfied that Rs. 2950/- were paid by the respondent Bipinlal to Ms counsel. The discretion of the Tribunal in regard to award of counsel's fee and its satisfaction that the fee allowed was paid to the respondent's counsel cannot be disturbed in this appeal.

19. For the foregoing reasons, this appeal is dismissed with costs of the respondent No. 1 Bipinlal. Counsel's fee is fixed at Rs. 250/-.


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