# GAJANAN KRISHNAJI BAPAT AND ANOTHER v. DATTAJI RAGHOBAJI MEGHE AND OTHERS

- **Citation:** [1995] Supp. 2 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 1995-07-18
- **Case number:** Civil Appeal No. 640 of 1993
- **Bench:** As. Anand, M.K. Mukherjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gajanan-krishnaji-bapat-and-another-v-dattaji-raghobaji-meghe-and-others-13092
- **Pages:** 73

## Headnote

Representation of People Act, 1951-Generally--Right to elect or be
elected-Nature of-Whether statutory or common law right.
Representation of People Act, 1951-Sections 81 and 98-Election
result-When can be inteif ered with.
Representation of People Act, 1951-5ections 123 and 87(2)-Charge
of conupt practice-Nature of-Degree of proof required-Onus of proving
charge-Liability of the returned candidate-Direct and circumstantial
D evidence-Evidence Act, 187rSection 106.
Representation of People Act, 1951-Section 83-Election Petition-Pleadings-Requirement of-Code of Civil Procedure-Order VI.
Representation of People Act, 1951-Section 116A-Appeal-Scope
E of-Evidence-When can be reappraised.
F
Representation of People Act, 1951-Sections 77 and 123-Expenditure
beyond pennissible limit-When amounts to conupt practice-Held, should
be incun-ed or authorised by the returned candidate or his election agent.
Representation of People Act, 1951-Section 77(1)-"ln connection
with the election''-Meaning of-Expenses made after declaration of result-If
included.
Civil Procedure Code, 1908-0rder VI Rule 17-Election petiG lion-Amendment of-When should be allowed-Further evidence on
amended pleadings-Desirability of-Representation of People Act,
1951-Section 87(1).
The appellants, who were electors of Nagpur Parliamentary Constituency, challenged the election of Respondent No. 1 to the Lok Sabha
H from their constituency, on the ground that Respondent No. l/his election
186
-
•
--·--\
G.K. BAP AT v. D.R. MEG HE
187
agent had incurred expenditure far in excess of the limit of Rs. 1,50,000 A
permitted under Section 77. It was alleged that the expenditure actually
incurred/authorised by Respondent No. l/his elt.ction agent was shown to
have been incurred by various organisations some of which were nonexistent.
The High Court allowed several amendment petitions, one of them
after recording the evidence of some of the witnesses. The High Court also
allowed the recall of some witnesses in view of the amendments allowed by
it. After recording the evidence and hearing the parties, the High Court
held that Respondent No. 1 had not disclosed an expenditure of Rs. 58,220
in his return of expenditure lodged under Section 78 of the Representation
of People Act, 1951. However, even after addition of the said amount of Rs.
58,220 to the amount of expenditure shown in the return filed by the
respondent No. 1, the total expenditure did not exceed the permissible limit
of Rs. 1,50,000, the High Court held that the respondent No. 1 did not
commit any "corrupt practice" and dismissed the election petition,
The High Court held that 1180 liters of petrol had been purchased
by respondent No. 1, the expenditure whereof had not been disclosed in
the return of expenditure. The High Court calculated tlie amount of petrol
consumed on the basis of oil- petrol ratio required in a particular car used
B
c
D
by respondent No. 1 during campaigning. The High Court held that to use E
the quantity of oil purchased by respondent No. 1, 1180 liters of petrol in
excess of that disclosed in the return was required and therefore, the High
Court allowed the claim of the appellant that an amount of Rs. 17,900
incurred in purchase of petrol had not been disclosed by respondent No.
1. The High Court further held that certain expenditure made on adverF
tisements had not been disclosed by respondent No. 1.
The appellants filed an appeal before this Court. Respondent No. 1
also filed a cross objection challenging the findings of the High Court
which were against him. Before this court the appellant contended that G
besides the amount found to have been suppressed by the High Court
several other expenditure b1curred/authorized by respondent No. 1 had not
been disclosed by him. The appellant alleged that respondent No. 1 got
voters card distributed to all the voters of the Constituency incurring an
expenditure of Rs. 2,25,000. Further, it was alleged that respondent No. 1
got posters printed at the c

## Text

_Characters 0–39,955 of 185,577. This is a partial read: ask again with offset=39955 for what follows._

A
B
c
GAJANAN KRISHNAJI BAPAT AND ANOTHER
v.
DATTAJI RAGHOBAJI MEGHE AND OTHERS
JULY 18, 1995
[AS. ANAND AND M.K. MUKHERJEE, JJ .]
Representation of People Act, 1951-Generally--Right to elect or be
elected-Nature of-Whether statutory or common law right.
Representation of People Act, 1951-Sections 81 and 98-Election
result-When can be inteif ered with.
Representation of People Act, 1951-5ections 123 and 87(2)-Charge
of conupt practice-Nature of-Degree of proof required-Onus of proving
charge-Liability of the returned candidate-Direct and circumstantial
D evidence-Evidence Act, 187rSection 106.
Representation of People Act, 1951-Section 83-Election Petition-Pleadings-Requirement of-Code of Civil Procedure-Order VI.
Representation of People Act, 1951-Section 116A-Appeal-Scope
E of-Evidence-When can be reappraised.
F
Representation of People Act, 1951-Sections 77 and 123-Expenditure
beyond pennissible limit-When amounts to conupt practice-Held, should
be incun-ed or authorised by the returned candidate or his election agent.
Representation of People Act, 1951-Section 77(1)-"ln connection
with the election''-Meaning of-Expenses made after declaration of result-If
included.
Civil Procedure Code, 1908-0rder VI Rule 17-Election petiG lion-Amendment of-When should be allowed-Further evidence on
amended pleadings-Desirability of-Representation of People Act,
1951-Section 87(1).
The appellants, who were electors of Nagpur Parliamentary Constituency, challenged the election of Respondent No. 1 to the Lok Sabha
H from their constituency, on the ground that Respondent No. l/his election
186
-
•
--·--\
G.K. BAP AT v. D.R. MEG HE
187
agent had incurred expenditure far in excess of the limit of Rs. 1,50,000 A
permitted under Section 77. It was alleged that the expenditure actually
incurred/authorised by Respondent No. l/his elt.ction agent was shown to
have been incurred by various organisations some of which were nonexistent.
The High Court allowed several amendment petitions, one of them
after recording the evidence of some of the witnesses. The High Court also
allowed the recall of some witnesses in view of the amendments allowed by
it. After recording the evidence and hearing the parties, the High Court
held that Respondent No. 1 had not disclosed an expenditure of Rs. 58,220
in his return of expenditure lodged under Section 78 of the Representation
of People Act, 1951. However, even after addition of the said amount of Rs.
58,220 to the amount of expenditure shown in the return filed by the
respondent No. 1, the total expenditure did not exceed the permissible limit
of Rs. 1,50,000, the High Court held that the respondent No. 1 did not
commit any "corrupt practice" and dismissed the election petition,
The High Court held that 1180 liters of petrol had been purchased
by respondent No. 1, the expenditure whereof had not been disclosed in
the return of expenditure. The High Court calculated tlie amount of petrol
consumed on the basis of oil- petrol ratio required in a particular car used
B
c
D
by respondent No. 1 during campaigning. The High Court held that to use E
the quantity of oil purchased by respondent No. 1, 1180 liters of petrol in
excess of that disclosed in the return was required and therefore, the High
Court allowed the claim of the appellant that an amount of Rs. 17,900
incurred in purchase of petrol had not been disclosed by respondent No.
1. The High Court further held that certain expenditure made on adverF
tisements had not been disclosed by respondent No. 1.
The appellants filed an appeal before this Court. Respondent No. 1
also filed a cross objection challenging the findings of the High Court
which were against him. Before this court the appellant contended that G
besides the amount found to have been suppressed by the High Court
several other expenditure b1curred/authorized by respondent No. 1 had not
been disclosed by him. The appellant alleged that respondent No. 1 got
voters card distributed to all the voters of the Constituency incurring an
expenditure of Rs. 2,25,000. Further, it was alleged that respondent No. 1
got posters printed at the cost of Rs. 3,40,250. It was also alleged by the H
188
SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.
A
appellant that respondent No. 1 sent letters to all the voters in the
Constituency through one Sarva Dharma Samajik Sangathan at the cost
of Rs. 12,40,830. the appellant further alleged that Respondent No. 1 had
incurred/authorised huge expenditure on advertisements in various
newspapers including certain "thanks giving" advertisements published
B
after the declaration of the result of the election.
Dismissing the appeal of the appellants and partly allowing the cross
objection of respondent No. 1, this Court
HELD : 1. The right to elect and the right to be elected are statutory
C rights. These rights do not inhere in a citizen as such and in order to
exercise the right certain formalities as provided by the Act and the Rules
made thereunder are required to be strictly complied with. The statutory
requirement of election law are to be strictly observed because the election
contest is not an action at law or a suit in equity but is a purely statutory
D proceeding unknown to the common law. The Act is a complete code in
itself for challenging an election and an election must be challenged only
in the manner provided for by the Act. [203-E]
E
F
2.1. Though the election of a successful candidate is not to be
interfered with lightly and the verdict of the electorate ups~t, this Court
has emphasised in more than one case that one of the essentials of the
election. law is to safeguard the purity of the election process and to see
that people do not get elected by flagrant breaches of the law or by
committing corrupt practices. It must be remembered that an election
petition is not a matter in which the only persons interested are the
candidates who fought the election against each other. The public is also
substantially interested in it and it is so because election .is an essential
part of a democratic process. It is equally well settled by this Court and
necessary to bear in mind that a charge of corrupt practice is in the nature
of a quasi criminal charge, as its consequence is not only to render the
election of the returned candidate void but in some cases even to impose
G upon him a disqualification for contesting even the next election. The
evidence led in support of corrupt practice must therefore, not only be
cogent and definite but if the election petitioner has to succeed, he must
establish definitely and to the satisfaction of the court, the charge of
corrupt practice which be levels against the returned candidate. The onus
H lies heavily on the election petitioner to establish the charge of corrupt
' :).
-
G.K. BAPAT v. D.R. MEGHE
189
practice and in case of doubt the benefit goes to the returned candidate. A
In the case of an election petition, based on allegations of commission of
corrupt practice, the standard of proof is generally speaking that of
criminal trials, which requires strict proof of the charge beyond a
reasonable doubt and the burden of proof is on the petitioner and that
burden does not shift. (204-C-G]
Nihal Singh v. Rao Birendra 5_ingh & Anr., (1970] 3 SCC 239;0m
Prabha Jain v. Charan Das & Anr., (1975] Supp. SCR 101;Daulat Ram
Chauhan v. Anand Shanna, (1984] 2 SCR 419 and Quamarnl Islam v. S.K
Kanta & Ors., (1994] Supp. 3 SCC 5, referred to.
B
c
2.2. However, the returned candidate is not absolved from his
liability to bring forth evidence on the record to rebut the case of the
petitioner and to particularly prove such facts which are within his special
knowledge. Though, the nature of allegations in cases alleging corrupt
practices are quasi-criminal and the burden is heavy on him who assails
an election but unlike in a criminal trial, where an accused has the liberty D
to keep silent, during the trial of an election petition the returned candidate has to place before the Court his version and to satisfy the Court
that he had not committed the corrupt practice as alleged in the petition
and wherever necessary by adducing evidence besides giving his sworn
testimony denying the allegations. However, this stage reaches if and when
the election petitioner leads cogent and reliable evidence to prove the
charges levelled against the returned candidate as, only then, can it be said
that the former has discharged his burden. That necessarily means, that
if the election petitioner fails to adduce such evidence which may persuade
the Court to draw a presumption in his favour, the returned candidate will
not be required to discharge his burden by adducing evidence in rebuttal.
(205-A-C]
2.3. While it will be pertinent to mention that the election petitioner
E
F
has to establish the charge by proof beyond reasonable doubt and not
merely by preponderance of probabilities as in civil action, the courts are G
not required to extend or stretch the doctrine to such an extreme extent
as to make it well nigh impossible to prove any allegation of corrupt
practice. (206-A]
Surendra Singh v. Hardayal Singh, AIR (1985) SC 89 and Harcharan
Singh v. Sajjan Singh, AIR (1985) SC 236, relied on.
H
A
B
190
SUPREME COURT REPORTS [1995] surP. 2S.C.R.
2.4. Some times direct evidence about the commission of corrupt
practice may not be forthcoming or available and in that case, the charge
may be proved by producing circumstantial evidence but the courts, in
such cases insist, that each of the circumstances must be proved individually and all the circumstances put together must point unerringly
only to the hypothesis of the commission of the corrupt practice by the
returned candidate and must not be capable of any other hypothesis
consistent with the innocence of the returned candidate. [206-B]
Quamantl Islam v. S.K Kanta & Ors., [1994] Supp. 3 SCC 5;Raj
Narain v. Indira Gandhi, [1976] 2 SCR 347 and Ch. Razik Ram v. Ch.
C Jaswant Singh Chauhan & Ors., [1975] 4 SCC 769, referred to.
D
E
3.1. The election law insists that to unseat a returned candidate, the
corrupt practice must be specifically alleged and strictly proved to have
been committed by the returned candidate himself or by his dection agent
or by any other person with the consent of the returned candidate. or by
his election agent. Suspicion, howsoever strong, cannot take the place of
proof, whether the allegations are sought to be established by direct
evidence or by circumstantial evidence. Since, pleadings play an important
role in an election petition, the legislature has provided that the allegations
of corrupt practice must be properly alleged and both the material facts
and particulars provided in the petition itself so as to disclose a complete
cause of, action. Sec~ion 83 of the Representation of People Act, 1951 has
been held to be mandatory and requires first a concise statement of
material facts and then the full particulars of the alleged corrupt practice
so as to present a full picture of the cause of action. [206-D-G]
F
3.2. A petition levelling a charge of corrupt practice is required, by
law, to be supported by an affidavit and the election petitioner is also
obliged to disclose his source of information in respect of the commission
of the corrupt ·practice. This becomes necessary to bind the election
petitioner to the charge levelled by him. and to prevent any fishing or roving
G enquiry and to prevent the returned candidate from being taken by a
surprise. (206-H, 207-A]
Samant N. Balkrishna v. George Fernandez and Others, AIR (1969) SC
1201, referred to.
H
4. The jurisdiction to try an election petition has been vested in the
(
G.K. BAPAT v. D.R. MEGHE
191
High Court. Election petitions are generally speaking tried by experienced A
Judges of the High Court. Those judges have the benefit of observing the
witnesses when they give evidence. Therefore, the appreciation of evidence
by the High Court is entitled to great weight. Generally speaking this Court
accepts the findings of fact arrived at by the High Court after appreciation
of evidence. Being the Court of First Appeal, however, this court has no
inhibition in reserving such a finding, of fact or law, which has been
recorded on a misreading or wrong appreciation of the evidence or the law,
but ordinarily and generally speaking this court does not, as it ought not
to, interfere with the findings of fact recorded by the trial Judge of the
High Court, unless there are compelling reasons to do so. [207-B-D]
Sheodan Singh v. Mohan Lal Gautam, AIR (1969) SC 1024, referred
to.
B
c
5.1. If a candidate incurs or authorises expenditure in excess of the
prescribed limits, he commits the corrupt practice under Section 123(6) D
of the Representation of People Act and his election is liable to be set aside
and he also incurs the disqualification of being debarred from contesting
the next election. From a plain reading of Sections 123(6) and 77 including
Explanation I to the Section 77 of the Act, it is clear that in order to be a
corrupt practice, the excessive expenditure must be incurred or authorised
by the candidate or his election agent. An expenditure incurred by a third E
person, which is not authorised by the candidate or his election agent is
not a corrupt practice. [208-F]
5.2. Unless the expenditure is in fact incurred or authorised by the
candidate or his election agent, he cannot be saddled with that expendiF
tore. Of course a candidate cannot be permitted to place his own funds in
the power of possession of a political party, an association, or some other
persons or individuals for being spent on his behalf and then plead for the
protection under Explanation (1) to Section 77 of the Representation of
People Act. Where the election petitioner successfully establishes that the
funds were provided by the returned candidate, if would be immaterial as G
to who actually made the payments, which ought to have been included in
the return of election expense. It is not "whose hand it is that spends the
money". The essence of the matter is "whose money it is" that has been
spent. In order that explanation (1) to Section 77 of the Act may apply,
therefore, it must be proved that the source of the expenditure incurred H
192
SUPREME COURT REPORTS (1995] SUPP. 2S.C.R.
A was not out of the money of the candidate or his election agent. [210-A-C]
Magh Raj Patadia v. R.K. Birla, AIR (1971) SC 129S;Raj Narain v.
Indira Gandhi, [1976] 2 SCR 347 and P. Nalla Thampy v. Union of India,
AIR (1958) SC 1133, relied on.
B
6. The High Court was wrong and it fell into a complete error in
c
making calculations for estimating consumption of petrol on the basis of
oil petrol ratio. The type of exercise done by the High Court had neither
any factual foundation in the election petition nor even in the evidence.
The High Court made out a new case-neither the one pleaded by the
election petitioners nor the one pleaded by the returned candidate. The
finding of the High Court is, not only conjectural but is based on surmises
and not of any evidence. [216-D]
7. The election petitioner has not adduced any cogent, satisfactory
or reliable evidence to establish that the expenditure of Rs. 2,25,000 and
D Rs. 3,40,250 as alleged in the petition had been incurred and/or authorised
by respondent no. 1 for printing of voter cards and the posters. On the
other hand it emerges, that the entire expenditure on that behalf was
undertaken and borne by the party of the petitioner and others and that
it was so done as per the past practice also. (221-E]
E
8. Though the practice followed by political parties in not maintaining accounts of receipts of the sale of coupons and donations as well as
the expenditure incurred in connection with the election of its candidate
appears to be a reality but it certainly is not a good practice. It leaves a
lot of scope for soiling the purity of election by money influence. Even if
F
the traders and businessmen do not desire their names to be publicized,
nothing prevents the political party from maintaining its own accounts to
show total receipts and expenditure incurred, so that there could be some
accountability. The practice being followed as per the evidence introduces
the possibility of receipt of money from the candidate himself or his
election agent for being spent for furtherance of his election, without
G getting directly exposed, thereby defeating the real intention behind Explanation I to Section 77 of the Representation of People Act. It is,
therefore, appropriate for the Legislature or the Election Commission to
intervene and prescribe by Rules the requirements of maintaining true and
correct account of the receipt and expenditure by the political parties by
H
disclosing the sources of receipts as welt Unless, this is done, the pos-
G.K. BAPAT v. D.R. MEGHE
193
sibility of purity of elections being soiled by money influence cannot really A
be ruled out. The political parties must disclose as to how much amount
was collected by it and from whom and the manner in which it was spent
so that the court is in a position to determine "whose money was actually
spent" through the hands of the Party. [222-E-H, 223-A]
9. The election petitioners have failed to examine any witness to show
that the letters had in fact been sent by respondent No. 1 to the electorate.
The letters were, on the face of it, sent by one Sangathan. No evidence has
been led to show that the money spent by the Sangathan had been provided
by respondent No. 1 either or that the Sangathan was a non-existent body.
The allegation has remained totally unsubstantiated. [225-D]
10. The election petitioners have totally failed to bring any material
on the record to connect respondent No. 1 either with the publication of
or expenditure incurred in respect of the various advertisements as alleged
B
c
in the petition. Even though the names of the parties, organisations, D
associations, institutions, and individuals etc. had been mentioned in the
advertisements as the sponsors of the advertisements, the election
petitioners did not examine any one of them to elicit from them that they
had not issue or cause to be issued those advertisements or that they had
not incurred any expense in connection therewith. It is not unknown that
during the election, many sympathisers as well as 'others' come forward E
to support the candidature of a particular candidate and sponsor and pay
for the advertisements which they get published to further the prospects
of that candidate's election. Moreover, apart from the returned ·candidate,
the party which sponsors him as its candidate is equally interested in the
furtherance of the prospects of his election and may approach different p
organisations, associations or individuals to sponsor and publish the
ad:\'.j!rtis~ments at their expense in favour of the candidate. [245-B-C, F]
11. The "thanks giving" advertisements were published after the
declaration of result and therefore could not be said to have been issued
in connection with the election, even if the expression "in connection with
the election" is to be given a wide amplitude. There may be cases where
some expenditure can be incurred or authorised by a returned candidate
in connection with his election, even after the declaration of result, but
unless that expenditure can be related to the process of election, authorised
G
or incurred during the prohibitory limits set out in Section 77(1) of the H
194
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
Representation of People Act, it is not required to be included in the return
of expenses. [241-A-E]
B
c
12.1. The power of amendment given in the Code of Civil Procedure
can be invoked by the High Court because Section 86 of the Representation
of People Act itself makes Code of Civil Procedure applicable, as nearly as
may be, to the trial or election petition, but it must not be ignored that
some of the Rules framed under the Act itself over-ride certain provisions
of the Civil Procedure Code and thus, the general power of amendment
drawn from the Code of Civil Procedure must be construed in the light of
the provisions of the election law and applied with such restraints as are
inherent in an election petition. The High Court did not properly consider
the provisions of the election law while repeatedly allowing amendments
of the election petition in the present case. [257-B-C]
12.2. The High Court ought not to have allowed evidence to be led
by the election petitioners which was beyond the pleadings of the parties
D for no amount of evidence can cure a defect in the pleadings and it was all
the more Improper for the High Court to have allowed the pleadings to be
amended so as to be brought in conformity with the evidence already led
in the case. To say the least, it was not a desirable or a proper course to
be adopted in an election petition where the statutory requirements of the
E
law of election must be strictly observed. [257-F]
F
G
Jagannath v. Jaswant Singh, [1954] StR 892, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 640 of
1993.
From the Judgment and Order dated 3.8.92 of the Bombay High
Court in E.P. No. 1of1991.
Dr. N.M. Ghatate, R.K. Deshpande-, Arvind Mujumdar, Atul Batra
and Ms. Indu Malhotra for the Appellants.
V.R. Manohar, S. Fazl, D.B. Agrawal, S.A. Bobde, P.H. Parekh, Ms.
Lucy Fazl and AS. Bhasme for the Respondents.
The Judgment of the Court was delivered by
H
DR. ANAND, J. This appeal under Section 116-A of the Repre-
G.K. BAPAT v. D.R. MEGHE [DR. ANAND, J.]
195
sentation of People Act 1951 (hereinafter referred to as the Act), by two A
electors is directed against the judgment and order of a learned Single
Judge of the Nagpur Bench of the High Court of Judicature at Bombay
dismissing the election petition. The returned candidate has also filed
cross-objections challenging those findings which have gone against him.
Both shall be disposed of by this common judgment.
The appellants filed an election petition under Section 80 of the Act -
challenging the election of respondent No. 1, Dattaji Raghobaji Meghe, the
returned candidate from 23 Nagpur Parliamentary Constituency in the
elections held for the Xth Lok Sabha and also sought a declaration to the
effect that respondent No. 2 Shri Banwarilal Bhagwandas Purohit be
declared as the duly elected candidate from the said Constituency after
setting aside the election of the returned ~1.!_didate. The challenge to the
election of respondent No.1 was majnly bated on the allegations of commission of various corrupt practices by him 'and/or his election agent
detailed in the petition.
Appellant No.1 was at the relevant time the vice President of Bhartiya Janta Party (Nagpur City) Nagpur while appellant No.2 was a worker
of the Bhartiya Janta Party. Respondent No. 2, Shri Banwarilal Bhagwandas Purohit, the defeated candidate had been sponsored as a candidate by
the Bhartiya Janta Party while respondent No.l Datta Raghobaji Meghe,
the returned candidate, had been sponsored by Congree (I). Besides
respondents 1 and 2, the other candidates, who had contested the election
and had not withdrawn their candidatures from the contest, numbering
more than forty two were also joined as respondents to the election
petition.
B
c
D
E
F
The main case of the appellants projected before the High Court and
canvassed before us against the returned candidate was that the expenditure incurred or authorised by respondent No.1 or his election agent was
much more than what had been disclosed by him in the return of expenditure lodged under Section 1B of the Act with the District Election Officer G
and that huge expenditure incurred by him in connection with his election
had been suppressed. It was further alleged that though the expenditure
incurred in connection with the election of respondent No.l was shown to
have been incurred by the political party, some other sympathetic associations, organisations, individuals, friends and well-wishers, the said expenH
196
SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.
A
diture in fact had been incurred and/or authoris.ed by respondent No. 1
and/or his election agent and the amount spent by those organisations had
been provided out of the funds made available by respondent No. 1 to those
parties for making the payment and their names were given only to conceal
the truth of the transactions so as to escape from the mischief of Section
B
123( 6) of the Act. It was pleaded that some of the organisations under
whose names the advertisements had appeared, were in fact non-existent
and that the individuals who were shown ostensibly to have incurred some
expenditure for furtherance of the prospects of the election of respondent
No. 1, had actually no funds of their own to spend and respondent No. 1
C
had placed his own funds in their hands to meet the expenditure. According to the appellants, the expenditure incurred by respondent No. 1 was
far in excess of the limit prescribed by Section 77 of the Act read with Rule
90 of the Conduct of Election Rules 1961 (hereinafter the 'Rules') and the
return of election expenditure did not reflect the correct state of affairs.
Since respondent No. 1 had exceeded the prescribed limit of expense, he
D was guilty of committing the corrupt practice under Section 123(6) of the
Act and his election was, therefore, liable to be declared void and respon-
. dent No. 1 also disqualified for committing the corrupt practice.
E
F
Respondent No. 1 before filing his written statement raised a preliminary objection, through Ex.16 and Ex.17, to the effect that the allegations
made in the petition were vague and that material facts and particulars had
not been supplied and as such the vague pleadings were liable to be struck
off and the election petition rejected under Section 81(3) read with Section
86 of the Act. On 29.10.1991, however, Ex. 16 was rejected while application Ex.17 was allowed to the extent that the allegations made in the
petition regarding the commission of corrupt practice under Section 123(2)
and (3A) were found to be vague and non-specific and the pleadings in
that connection were directe:d to be struck off. Against the order of
rejection of the preliminary objection raised in Ex. 16, respondent No. 1
prferred a special leave petition being SLP(C) No. 19165-66/91 in this
G Court which was dismissed on 20th December 1991 by the following order:
H
"The special leave petition is dismissed. However, this order will
not prevent him from raising objections, which are available to him
according to law, when the evidence is made on the relevant
allegations."
---
G.KBAPAT v. D.R.MEGHE[DR.ANAND,J.]
197
Subsequetly, an application, Ex. 27, filed by the appellants for leave A
to amend the election petition for correcting certain inadvertant "errors,
omissions and slips" was allowed drt 28.11.1991 and the necessary corrections were carried out in the election petition. Again an application Ex.
47/A filed by the appellants seeking further amendment of the verification
clause of the petition was allowed by the Court on 18.1.1992, after an B
e.arlier application, Ex. 44, filed by the appellants seeking amendment of
the eleciton petition had been allowed on 18.12.1991.
A detailed written statement was thereafter filed by respondent No.
1 in which the charges levelled against him
1in the election petition were
vehemently denied. Respondent No. 1, in respect of certain items of C
expenditure, took a specific stand that the expenditure on those items as
detailed by the appellants in the election petition, were incurred by Nagpur
City District Congress Committee and Nagpur Gramin Congress Committee and not by him. Similarly, in respect of some other items of expenditure,
respondent No. 1 took the plea that the expenditure in respect of those
items was incurred by certain organisations, associations, individuals, D
friends and well-wishers, without any authority of consent of respondent
No. 1 or his election agent and completely on their own volitions. In the
written statement, the names of some of the organisations and individuals
as well as the associations of persons and the political party who had
incurred the expenditure were furnished by respondent No. 1. It was E
maintained by respondent No. 1 that he had not incurred any expenditure
besides the one reflected in the return of election expense and had not
committed any corrupt practice. After the amendments were carried out
by the appellants, the returned candidate, Respondent No. 1 filed yet
another application Ex.50 seeking striking out of some other 'vague and
non-specific' pleadings but the same was rejected, though the prayer of
Respondent No. 1 to amend the written statement made through application Ex. 49 was allowed on 9.1.1992.
From the pleadings of the parties, the following issues were framed
F
on 21.1.1992:-
G
(1) do the petitioners prove that they were electors in the election
held for the Tenth Lok Sabha from 23, Nagpur Parliamentary
Constituency?
(2)(a) Do the petitioners prove that a meeting was held in the H
198
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
office of the Maharashtra State Handloom Corporation on 17.5.91
during the Tenth Lok Sabha Election from 23, Nagpur Parliamentary Constituency?
(b) Do the petitioners further prove that the said meeting was
addressed by the respondent No. 1?
(c) Do the petitioners prove that in the said meeting, respondent
No. 1 had declared that labour charges for handloom weavers
would be increased by 0.35 paise per sq. metre from June 199-1?
( d) Do the petitioners prove that the said declaration of increase
in the labour charges was made by respondent No. 1 to hold out
promise of gratification for inducing the weavers numbering
1,50,000 to vote for the respondent No. 1?
( e) Do the petitioners prove that the said declaration made by the
respondent No. 1 amounts to commission of corrupt practice
within the meaning of Section 123(1)(A) i.e. bribery?
(f) Do the petitioners furthe~prove that the ~aid declaratio~ m~de
by respondent No. 1 also am~qnts to undue mfluence conshtutmg
commission of corrupt practite U!!der Section 123(2) and further
amounts to direct or indirect interference or attempt to interfere
with the free exercise of electoral rights of the handloom weavers
who were electors in the said election?
I
(3) Do the petitioners prove that the respondent No. 1 has not
maintained correct and proper accounts as is required to be _
maintained under Section 77 and has incurred expenses in excess
of the limit prescribed thereunder and thereby committed corrupt
practice under Section 123(6) of the Act?
( 4) Do the petitioners prove that the respondent No. 1 incurred
more expenditure than what is disclosed by him in the return of
expenditure annexed as Annexure 7 to the petition, on the following items as alleged in paras 2, 4 to 2.10 of the petition, on account
of the -
(i) payments made to Shri Devi Sharda Mangal Karyalaya, Nagpur,
by way of office rent?
_.,..
G.K. BAP AT v. D.R. MEG HE [DR. ANAND, J.]
199
(ii) payments made to M/S vishwa Bharti Typing Institute, Nagpur. A
(iii) payments made to M/S Prince Travels, Nagpur, for hiring
autorickshaws and taxis.·
(iv) payments made to M/S Pramod Automobiles, Nagpur.
(v) payment made to M/S Raj Automobiles, Nagpur.
B
(5)(a) Do the petitioners prove that the respondent no. 1 has
authorised and/or incurred expenditure on the undermentioned
items which has not been disclosed in the return of expenditure
annexed as Annexure 7 to the petition as alleged in paras menC
tioned in the petition described against each item hereunder?
(b)(i) Do the petitioners prove that printing cards at Annexure 9
indicate that the same have been published by Nagpur City District
Congress Committee, Nagpur, but the expenditure incurred on D
printing and distribution of about 15 lacs voter- cards has been
made by respondent No. 1 to the extent of Rs. 2,25,000. Do the
petitioners further prove that the respondent No. 1 has got printed
those cards at Shakti Offset Works, Nagur and the said firm
received a total amoutl.t of Rs. 2,25,000 from respondent No. 1?
(ii) Do the petitioners prove that respondent 1 got printed 3,25,000 ·
posters of different sizes though those posters show that they were
issued by President, Nagpur District Congress Committee and the
entire expenditure of these posters to the tune of Rs. 3,40,250 was
made by respondent No. 1?
(iii) Do the petitioners prove that the respondent No. 1 published
his candidature by large size cut-outs at places mentioned in
Annexure 11 alleged to be prepared by persons whose names are
given in Annexure 10? Do the petitioners further prove that cost
E
F
of these cutouts comes out to Rs. 2,83,000 as given in Annexure G
11 and was incurred by respondent no. 1 by paying the same to
persons mentioned in Annexure 10?
(iv) Do the petitiones prove that the respondent No. 1 advertised
his candidature by wall paintings at different locations at AnneXure
12 costing about Rs. 88500? Do the petitioners further prove that H
200
A
B
c
D
E
F
SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
these wall-paintings work was got executed by respondent No. 1
through painters and incurred expenditure of it by payment of
charges of painters?
(v) Do th.e petitioners prove that about 12,40,830 letters such as
those at Annexure 13 $ 14 were got prepared by the respondent
No. 1 and were sent to voters and almost all the voters received
these letters? Do. the petitioners further prove that although on
this letter, it appears that the same is being sent at the instance of
Sarya Dharma Sambhav Samajik Sanghatna, the expenditure required in fact was incurred by respondent No. 1 to the extent of
Rs. 12,40,830?
(vi) Do the petitioners prove that advertisement in newspapers at
Annexure A at SI.Nos. A2, AS, A7, A8, A10, A14 to A19, A22 to
A27, A28(b), A30(a) (first part) A30 (b) (second part); Annexure
Bat Sl. Nos. B4 to B9, BU to B14, B17 and B18, Annexure Cat
Sl. Nos. Cl, C2, C4, CS, C10, C12, C14 to C18, C23 $ C24.
Annexure D: at Sl. Nos. Dl, D2, D3, DS, D7, D8, DU, D13 and
D15; Annexure Eat Sl. Nos. Ei, E2, E9 and E10; Annexure F, At
Sl. Nos. Fl, F2, F3, F6, F10, F14 and F16; Annexure G at Sl. Nos
Gl, G2 and G3; Annexure Hat Sl. Nos. HU to H14, H17 and H8
were published by respondent no. 1 himself in connection with the
election and he himself incurred the expenditure?
(vii) Do the petitioners prove that the advertisements appearing
in newspapers at -
Annexure A: at S.Nos. A6, A9, AU to A13, A20, A21, A27(a),
A28, A30(b) (first part) and A31(b);
Annexure B: At S.Nos. Bl, B2, B3, BlO, B15, B16 and B19.
G
Annexure C: at S.Nos. C3, C6 to C9, CU, C13, C19 to C22.
Annexure D: at Sl. Nos. D6, D9, D10, D12 and D14.
Annexure E : At SI.Nos. E3 to E8.
H
Annexure F: at S.Nos. F3, FS, F7 to F9, FU to F13, & F15;
G.K. BAPAT v. D.R. MFJ1HE[DR.ANAND,J.)
201
Annexure G: at S.Nos. G4 to G8;
are published in connection with election by the respondent No. 1
and the expenditure of which is incurred by the respondent no. 1
himself though in the said advertisement the names of publishers
are shown as persons other than the respondent No. 1 as given in
Annexures.
(6)(a) Do the petitioners prove that the respondent No. 1 had
employed M/S Yugdharma Consultant and Commercial Services,
Nagpur to publicise his candidature and incurred expenditure as
A
B
per the details shown in Annexures 17 and 18 and alleged in para C
2.13 of the petition.
(b) Do the petitioners prove that besides the above agency, the
respondent No. 1 had employed two other agencies, namely,
Orange City Advertising and Prasad Publicity for publishing his
candidature by advertisements issued in the newspapers and there- D
by authorised and incurred expenditure as per details shown in
Annexure 18A, 18B and 18C and alleged in paras 2.23A to 2.23D
of the petition?
(c) Do the petitioners prove that election agent of respondent No.
1 incurred total expenditure to the tune of Rs. 39,500 on 14.1.91 E
and 17.6.91 for publication of advertisement in connection with the
election?
(7) Do the petitioner prove that the respondent No. 47 did not
properly scrutinise the nomination of the respondent No. 3 and he
was allowed to represent himself as such, although a wireless
message dated 26.4.91 to the contrary was received by the Returning Officer prior to the acceptance of the nomination papers from
the Chief Electoral Officer of the Maharashtra?
F
(8) Do the petitioners prove that by allowing the respondent No. G
3 to represent himself as the officiel candidate of R.P.I. (K), the.
result of the election of the respondent No. 1 has been materially
affected?
(9) Are the petitioners entitled to have inspection of the ballot
papers on the basis of the allegations made in paras 3.1 to 3.11 of H
A
B
c
D
E
F
202
SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.
the petition and the allegations made in paras ·1 to 13 of Ex. 28?
(10) Do the petitioners prove that the election of the respondent
no. 1 to the Tenth Lok Sabha from 23, Nagpur Parliamentary
Constituency is void on account of the commission of corrupt
practices under Section 123(1A) and Section U3(2) and Section
123(6) of the Act?
(11) Do the petitioners prove that the respondent No. 2 has
secured majority of valid votes to entitle him to be declared as duly
elected from 23, Nagpur Parlimentary Constituency to the Tenth
Lok Sabha?
(12) Do the petitioners prove that but for the votes obtained by
respondent no. 1 by alleged corrupt practices, the respondent No.
2 would have obtained majority of valid votes to entitle him to be
declared duly elected?
(13) Whether respondent no. 2 can be declared as duly elected to
the Tenth Lok Sabha from 23, Nagpur Parliamentary Constituency,
Nagpur?
(14) What order?
After the evidence of some of the witnesses was recorded on behalf
of the appellants, Election Petitioner no. 1 filed an application, Ex. 701 on
27.5.1992, once again for amending the election petition in the light of the
evidence recorded. Respondent No. 1 filed his objections to the said
application through Ex. 834 on 15.6.1992. The learned Single Judge, allowed the application permitting the election petitioner to amend the
election petition once again and being of the view that no new issue was
required to be framed on the basis of the proposed amendments directed
that the Respondent no. 1 could apply for recalling any of the petitioners'
witnesses for further cross- examination. On 17.6.1992, Respondent No. 1
G filed an application Ex. 835 for leave to amend the written statement which
was also allowed. We shall advert to the proceedings concerning various
amendments in the latter part of this judgment.
The learned Single Judge after conclusion of the evidence and after
hearing learned counsel for the parties held that the appellants (election
H petitioners) had proved that respondent No. 1 had not maintained a correct
G.K.BAPAT v. D.R.MEGHE[DR.ANAND,J.)
203
and proper account of the election expenditure as is required to be A
maintained under Section 77 of the Act. It was also found that respondent
No. 1 had not shown in his return an expenditure to the extent of Rs. 58,220
apart from the expenditure shown by him in the return of election expenditure but since the addition of the said amount, to the amount of expenditure shown by respondent No. 1 in his return of election expenses, did
not exceed the permissible limit of Rs. 1,50,000, the returned candidate,
respondent No. 1, did not commit any corrupt practice as envisaged by
Section 123( 6) and dismissed the election petition but without any order
as to costs in favour of Respondent No. 1.
B
Since, in this appeal learned counsel for the appellants Dr. Ghatate C
has confined his case to issues 3, 4(v), 5(b) (i) (ii) (v) (vi) (vii); issue No.
6 (a) (b)(c); and partly Issue No. 10, we are, as such, relieved of the
necessity of dealing with the other issues.