# JOSHBHAI CHUNIBHAI PATEL v. ANWAR BEG A. MIRZA

- **Citation:** [1969] 2 S.C.R. 97
- **Court:** Supreme Court of India
- **Decided:** 1968-09-13
- **Case number:** Civil Appeal No. 788 of 1968
- **Bench:** M. Hidayatullah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joshbhai-chunibhai-patel-v-anwar-beg-a-mirza-4825
- **Pages:** 7

## Headnote

Repre;entation of the People Act, 1951, s. 123(5)-lngredlents of
th~ corrupt practice that must be proved-Prayer for general recount
lvlfhout pleadings on which it could rest-if can be granted.
The appellant challenged the respondent's election to the
Gujarat
State Legislative Assembly in February 1967, on the ground, inter a/ia,
that he had committed corrupt practice under s. 123 (5) of the Representation of the People Act, 1951. It was alleged that a car was hired
or procured by the returned candidate and on. the date of the poll it was
used for free conveyance of three ladies ro the polling booth.
The High
Court dismissed the petition.
In the appeal to this Court it was
contended that an inference arose in the present case that the ladies must
have been taken free to the polling booth and reliance was placed in this
respect on certain findings given by the High Court. There was also a
prayer that a general recount was wrongly disallowed by the High Court
and that it should be ordered in the present appeal.
HELD : Dismissing the appeal :
(i) S. 123(5) requires threo things, (I) hiring or procuring of a
vehicle; (2) by a candidate or his agent etc. and (3) for the free conveyance of an elector. [102 B-C]
In the present case there was proof that the1 vehicles were procured;
there was also proof that a particular vehicle was in fact used for the
conveyance of the three lady voters to the polling booth; what was not
proved was that there was free conveyance of the ladies in that vehicle.
The burden of establishing that this fact was on the appellant-petitioner
and it \Vas not impossible' of proof because the owner of the car or the
driver or the ladies could have been examined to show that the ladies
had travelled free in the vehicle.
In the absence of this proof the ingredients of tl>z section had not heen established and there was therefore
no room for interference with the High Court's decision though based
on slightly different reasons.
The High Court's finding that the ladies
must have travelled free was a mere surmiSe because there was no evidence whatever on this part of the case. [100 H, 102 G, HJ
(2) A scrutiny of the pleadings showed that there was no plea on
which the prayer for a recount could be rested though in the relief
clause there was mention of a general recount.
The pleas concerned the
votes caste by impersonators and rejected votes and as these had already
been considered. there was no room for a further count. [103 BJ

## Text

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JOSHBHAI CHUNIBHAI PATEL
v.
ANWAR BEG A. MIRZA
.September 13, 1968
(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.]
Repre;entation of the People Act, 1951, s. 123(5)-lngredlents of
th~ corrupt practice that must be proved-Prayer for general recount
lvlfhout pleadings on which it could rest-if can be granted.
The appellant challenged the respondent's election to the
Gujarat
State Legislative Assembly in February 1967, on the ground, inter a/ia,
that he had committed corrupt practice under s. 123 (5) of the Representation of the People Act, 1951. It was alleged that a car was hired
or procured by the returned candidate and on. the date of the poll it was
used for free conveyance of three ladies ro the polling booth.
The High
Court dismissed the petition.
In the appeal to this Court it was
contended that an inference arose in the present case that the ladies must
have been taken free to the polling booth and reliance was placed in this
respect on certain findings given by the High Court. There was also a
prayer that a general recount was wrongly disallowed by the High Court
and that it should be ordered in the present appeal.
HELD : Dismissing the appeal :
(i) S. 123(5) requires threo things, (I) hiring or procuring of a
vehicle; (2) by a candidate or his agent etc. and (3) for the free conveyance of an elector. [102 B-C]
In the present case there was proof that the1 vehicles were procured;
there was also proof that a particular vehicle was in fact used for the
conveyance of the three lady voters to the polling booth; what was not
proved was that there was free conveyance of the ladies in that vehicle.
The burden of establishing that this fact was on the appellant-petitioner
and it \Vas not impossible' of proof because the owner of the car or the
driver or the ladies could have been examined to show that the ladies
had travelled free in the vehicle.
In the absence of this proof the ingredients of tl>z section had not heen established and there was therefore
no room for interference with the High Court's decision though based
on slightly different reasons.
The High Court's finding that the ladies
must have travelled free was a mere surmiSe because there was no evidence whatever on this part of the case. [100 H, 102 G, HJ
(2) A scrutiny of the pleadings showed that there was no plea on
which the prayer for a recount could be rested though in the relief
clause there was mention of a general recount.
The pleas concerned the
votes caste by impersonators and rejected votes and as these had already
been considered. there was no room for a further count. [103 BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 788 of
1968.
Appeal under section 116-A of the Repre!;entation of the
People Act, 1951 from the judgment and order dated October
17, 18, 1967 of the Gujarat High Court in Election Petition No.
5 of 1967.
98
SUPREME COURT REPORTS
(1969] 2 S.C.R.
Bishan Narain and B. Datta, for the appellant,
S. V. Gupte,
M. I.Patel,
R. P. Kapur,
M. N. Shroff for
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C.J.
This is an appeal from the judgment
dated 17/18 October, 1967 of the High Court of Gujarat in an
election petition filed by the present appellant.
The election
petition was dismissed by the judgment under appeal.
The matter concerns the Petlad constituency in Kaira District
from which election was to be held to the State Legislative
Assembly Gujarat at the 4th General Election.
The appellant
was a candidate for the Swatantra Party and the respondent a
candidate for the Congress Party. The poll was held on
February 21, 1967 and the result of the election was declared
on February 24, 1967. The appellant secured 23,795 votes
and the respondent 23,981 votes.
1806 votes were declared invalid.
The respondent was therefore declared elected to the
seat.
The election petition set out a number of grounds on which
the election of the returned candidate was challenged as void
nuder the Representation of People Act.
We are concerned in
this appeal with only one such ground.
There is also a prayer
in the appeal that a general re-count was wrongly disallowed by
the learned Judge who decided the election petition and that it
should be ordered here.
We shall come to the second ground
in due course.
As regards the first ground, the contention was that a car No.
GJH 108 was hired or procured by the returned candidate and
on the day of poll, it was used for free conveyance of three ladies
to the polling booth. In the election petition, the election petitioner had stated that the returned candidate had made extensive
use of hired and procured vehicles for the purpose of free conveyance of voters to and from the various polling stations.
Although another instance was cited in the election petition,
no
evidence was led to support that or any other instance of the user
of this or other vehicle.
The whole of the case therefore rested
on the use of vehicle No. 108 and also its use on one occasion
only, namely, when three lady voters were said to have been
brought to the polling booth in it.
According to the election petitioner, he was in the Sayagi Hospital compound wherein
two polling booths Nos. 8 and 9 were situated.
He was then
accompanied by Suryakant Manilaf Shah and Somabhai Chhotabhai Kachhia.
At about 12.30 P.M., a taxi bearing No. GTG
9021 came to the gate of the hospital compound, and a lady got
out of it.
The election petitioner alleges that he immediately
asked Suryakant Manila! Shah to request the Presiding Officer of
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JOSHBHAI v. ANWAR (Hidayatullah, C.J.)
99
one of the booths to come out.
Presiding Officer B. M. Bhatt
came to the gate and saw the lady who had got out of the taxi .
The lady had in her hand a voter's identity card with the congress symbol and her No. was Serial No. 535 of Electoral Unit
26/100 belonging to Ward No. 1 of Petlad.
This part of the
allegation in the election petition was not used as evidence of
free conveyance of voters.
This incident was recited as furnishing the immediate background of what followed. The allegation in
regard to car No. 108 starts from this point.
The ellegation is
that while the election petitioner was complaining to the Presiding Officer Bhatt about the other car, car No. 108 came to the
gate of the compound and the petitioner along with his companion and Bhatt were standing there.
Three ladies got out of this
car bearing identity cards from the congress party and their
numbers were 426, 424 and 386 of electoral unit 28/100.
Bhatt
then told the election petitioner that these voters would go to
the other booth and that he was not concerned with that booth.
The election petitioner says that he followed the three voters to
the next booth and called out the presiding officer K. D. Trivedi
and pointed. out the three voters to him stating that they were
brought by car No. 108.
He asked him to verify this from
Bhatt.
The complaint of the election petitioner was then recorded by Trivedi and it appears from the evidence that he also
questioned Bhatt who endorsed the statement of the election petitioner that he had seen them get out of the car.
In support of this case witnesses were examined.
The net
result of the examination of these witnesses established the fact
that the ladies came by this car and that a complaint followed.
However no attempt was made to establish that these ladies had
come in the car free.
We need not traverse the entire evidence
to establish the above conclusions which in our opinion. are
quite clearly demonstrable from the evidenct'.
There is evidence
to show that the car did come, that the three ladies did get out
of the same and went to polling booth No. 9 and also that they
were holding identity cards issued by the Congress party.
Presumably therefore they were brought in this car for voting on
behalf of the Congress .
Attempt was then made to establish connection between the
returned candidate and this car.
On this part of the case testimony of the returned candidate was extremely unsatisfactory.
He first said that three cars were placed at his disposal by the
congress party between January 15 and January 31, 1967.
In
another place he said that he had been given only two cars.
Later he said that two of the cars were withdrawn from him and
that after the withdrawal of the cars he had no other car from
the congress party.
He denied the use of the cars contrary to
JOO
SUPREME COURT REPORTS
[1969] 2 S.C.R.
the evidence of the purchase of petrol and also denied any connection between himself and one person by name H. I. Pathan,
who had written requisition for petrol.
It was however proved
by cross-examination that this H. I. Pathan is probably one of
bis nephews, a fact which he denied also.
It appears that before
this car was used, the returned candidate opened a new account
in the name of Mahendra Electric Company C/o Anwarbeg and
petrol was bought for this car along with other cars right upto
21st February in the account of this Mahendra Electric Company and that was the returned candidate himself.
Since the
requisitions for petrol were issued by H. I. Pathan, the returned
candidate was at great pains to deny any connection with him
and even went to the length of denying the real names of his
own nephews.
However, this only proved that he had procured
the car No. 108 from the Congress party or somebody else for
his own use during the election propaganda and at the time of
the poll.
It also proved that he had purchased petrol not only
previously but also on the day of poll because entries in respect
of this car existed in the accounts of the petrol dealer's firm on
18, 19, 20 and 21 February.
The evidence also proved that the
three ladies did travel by this car on the date of poll and got out
of it at the gate of the hospital compund where the polling booth
was situated.
The question is whether all this evidence even taken in favour
of the election petitioner goes to satisfy the requirement of the
law under s. 123 ( 5) of the Representation of the People Act.
That section contains many ingredients and to them we shall
come presently; one such ingredient is that the car must be used
for the free conveyance of the voters to the poll.
The learned
Judge wl!o heard the case gave a finding that the car was so used,
that is to say, the three ladies were carried free to the booths in
this car.
There is no evidence to establish this.
The owner of
lhe car, the driver and the electors namely the three ladies were
not examined and there is nothing to show whether they had
travelled free or had paid for the privilege.
Mr. Bishan Narain argues in the alternative, firstly, that an
inference arises in the present case that the ladies must have been
taken free and he refers to the findings given by the High Court
on this part of the case.
Next, he argues that this is not the
requirement of s. 123(5) and he interprets the section so as to
save his case from the operation of that section.
As regards the finding of the High Court that the ladies must
have travelled free, we can only say that it is a mere surmise because there is no evidence whatever on this part of the case.
Mr.
Bishan Narain stated that the best evidence could come from the
returned candidate and that his client was not required to prove
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a negative.
In our opinion, the burden was upon the election
petitioner to establish this fact, if it was a requirement of law.
We do not think that it was an utter impossibility because the
owner of the car, the driver or one of the ladies could have been
questioned about it and something would have then come in
evidence.
Since no such attempt was made there is nothing on
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which we can say whether the ladies were brought free or on
payment and regard being had to the strictness of the law on the
subject of corrupt practice we must hold in favour of the returned candidate that the requirements of the section have not been
met.
This brings us to the examination of s. 123 (5) with a view
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to finding out what are its requirements.
We have already indicated that in our opinion the election petitioner must prove in
addition to the other ingredients of the section that the vehicle
was used for free conveyance of voters which ingredient we have
stated was not attempted to be established in the case.
Section
123(5) of the Representation of People Act reads as follows:
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"The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel by a candidate or
his agent or by any other persoh with the consent of a
candidate of his election agent, or the use of such
vehicle or vessel for the free conveyance of any elector
(other than the candidate himself, the members of his
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family or his agent) to or from any polling station
provided under section 25 or a place fixed under subsection ( 1) of section 29 for the poll :
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Provided that the hiring of a vehicle or vessel by an
elector or by several electors at their joint costs for the
purpose of conveying him or them to and from any such
polling station or place fixed for the poll shall not be
deemed to be a corrupt practice under this clause if the
vehicle or vessel so hired is a vehicle or vessel not propelled by, mechanical power :
Provided further that the use of any public transport vehicle or vessel
or any tramcar or railway
carriage by any elector at his own cost for the purpose
of going to or coming from any such polling station or
place fixed for the poll shall not be deemed to be a
corrupt practice under this clause.
Explanation : In this clause, the expression "vehicle" means any vehicle used or capable of being used
for the purpose of road transport whether propelled by
mechanical power or otherwise and whether used for
drawing other vehicles or otherwise."
102
SUPREME COURT REPORTS
[1969] 2 S.C.R.
This section defines one of the corrupt practices and it consists
of the hiring and procuring whether on payment or otherwise of
any vehicle.
This hiring and procuring must be by a candidate
or his agent or by any other person with the consent of the candidate or his election agent and the hiring according to the section must be for the free conveyance of any elector other than
the candidate himself or members of his family or his agent to
and from any polling station. It will, therefore, appear that the
section requires three things, ( 1) hiring or procuring of a vehicle;
( 2) by a candidate or his agent etc. and ( 3) for the free conveyance of an elector. It will be noticed that the section also
speaks of the use but it speaks of the use of such vehicle which
connects the two parts, namely, hiring or procuring of vehicle
and the use.
The requirement of the law therefore is that in
addition to proving the hiring or procuring and the carriage of
electors to and from any polling station, should also be proved
that the electors used the vehicle free of cost to themselves.
The
contention of Mr. Bishan Narain that the requirement of free
conveyance is not necessary is therefore not borne out by the
words of the section.
The two provisos also prove · the same
thing.
The first proviso provides that it would not be a corrupt
practice for any elector to hire a vehicle for himself or even a
group of electors to join in hiring a vehicle and the second proviso lays down that the use of any public transport vehicle or
vessel or any tramcar or railway carriage by any elector at his
own cost is not a corrupt practice. In order words the
electors, if they have to perform the journey by hired vehicle
must pay for its hire themselves.
They cannot be taken in a
hired vehicle free of costs to themselves.
In the same way if a
procured vehicle is used, it must not be used for free conveyance
of voters.
The journey of the elector must be paid for by him.
If a candidate hires or procures a vehicle for free conveyance of
the electors that also is perhaps a corrupt practice but that aspect
need not be considered here.
The language seems capable of
that interpretation though we express no final opinion.
In the present case there is proof that the vehicles were procured; whether they were supplied by the Congress party or were
procured from private parties makes no difference.
There is also
proof that the vehicle numbered 108 was, in fact, used for the
conveyance of three lady voters.
What is not proved is that
there was free conveyance of the ladies in that vehicle.
Mr.
Bishan Narain contends that this is very difficult of proof but as
we stated earlier it is not impossible of proof because the owner
of the car or the driver or the ladies could have been examined
to show that the ladies had travelled free in the vehicle.
This is
not proved and therefore the ingredients of the section have not
been established.
Jn our opinion therefore there is no room for
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JOSHBHAI v. ANWAR (Hidayatullah, C.J.)
103
interference although, our reasons are slightly
different
from
those of the High Court.
It was next contended that a general recount was demanded
in the case and has been wrongly refused.
We have scrutinized
the pleadings on this point carefully and we find that no plea on
which it could be rested was made although in the relief clause
there is mention of a general recount.
The pleas concerned the
votes cast by impersonators and rejected
votes.
These have
been considered already and therefore there is no room for further count.
On the whole therefore we are of opinion that the
judgment under appeal cannot be interfered with. The appeal fail
and will be dismissed.
In view however, of the prevarications
ot the returned candidate which were not attempted to be explained by his learned counsel we are of opinion that we should not
allow him any costs either here or m the High Court and we
order accordingly.
R.K.P.S .
Appeal dismissed.