Civil Appeals Nos 775 and 1107 of 1975
From the Judgment and order dated the 9 4 1975 of the Allahabad High Court in Election Petition No 24 of 1974 N section Bindra
K C Agarwala
R D Uppadhaya and M M L Srivastava for the appellant in CAs 77575
Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh for the appellant in CA 110775
N section Bindra K C Agarwala R D Uppadhaya and M M L Srivastava for the respondent in CAs 110775
Yogeshwar Prasad Miss Rani Arora and Bir Bahadur Singh for respondents 1 and 2 in CAs 77575
The Judgment of the Court was delivered by SHINGHAL J
Civil Appeal No 775 of 1975 has been filed under section 116A of the Representation ofPeople Act l95l hereinafter referred to as the Act by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974 has been set aside by the Allahabad High Court by its judgment dated April 9 1975
The appellant has been
held guilty of committing a corrupt practice under section 123S of the Act
and has been disqualified for a period of six years
this election was challenged on several grounds by an election petition filed by respondents Prakash Chandra and Jai Chandra hereinafter referred to as the election petitioners who were electors of the constituency
There were several candidates at the election but the main contestants were appellant Balwan Singh of the Bhartiya Kranti DaI BKD who secured 34968 votes and Ragunath Singh respondent No 2 of the Congress R party who secured 31008 votes
Appeal No1167 of 1975 is by election petitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners
337 The allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant his workers agents and supporters with his consent hired and procured vehicles for the free conveyance of electors
A concise statement of the mate rial facts in that respect was made in paragraph 12 of the election petition
Particulars of the vehicles used for the free conveyance of the electors were given in Schedule III of the petition
The appellant denied the allegation and pleaded in his written statement that none of the vehicles mentioned in Schedule III was either procured or hired by him or his workers and agents with his consent for the purpose of carrying voters to and from the polling stations and that no such vehicle was used for the purposes of carrying electors to and from the polling stations on the date of poll
It was also stated that the allegations contained in sub paragraphs 12a 12b and 12c were not the facts required by section 83
They were totally vague and lack ed in material particulars and were liable to be struck off
The High Court considered that and the other objections and stated in its order dated August 30 1974 in regard to the objection that the names of the persons who procured or hired vehicles were not given in paragraph 12 or Schedule III that the counsel for the election petitioner had undertaken to furnish the names
The election tioners furnished better particulars by adding paragraph 12d stating that the names of the persons who hired or procured the vehicles by which the electors were carried free of cost from their houses to the polling station on the date of election by respondent No 1 were given in Schedule IIIl
They save the percentage and residence of the persons named in Schedule III as also particulars and names of the persons who hired and procured vehicles for the free conveyance of the electors and the names of the owners of the vehicles
An objection was then taken that such an amendment was not permissible
The High Court rejected that objection by its order dated October 10 1974 except that the names of two new persons were not allowed to be inserted in Schedule V with which we are not concerned
The High Court framed several issues including issue No 2 which was as follows 2
Whether the respondent No 1 himself or his workers and agents with his consent hired or procured vehicles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and  
thereby the respondent No 1 committed corrupt practice
 After recording the evidence of the parties the High Court recorded its finding as follows My answer on issue No 2 accordingly is that the respondent No 2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta Jaganpur and Tigain polling stations and further that the respondent No 1 thereby committed a corrupt practice under section 1235 of the RP Act 338 It was in view of that finding that the election petition was allowed with costs the election of the appellant was declared void and he was disqualified as aforesaid
That is how appeal No 775 has arisen The other appeal No 1 107 has been filed by election petitioner
Prakash Chandra as he feels aggrieved against the High Court s findings on the other issues but Mr Yogeshwar Prasad has stated that he would not press that appeal
We have therefore only Balwan Singh s appeal for consideration
It has been argued by Mr Bindra on behalf of Balwan Singh hereinatter referred to as the appellant that the High Court ought not to have entertained the election petition as it was not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings even though that was the clear requirement of section 831c of the Act
We asked the counsel to refer us to any such objection of the appellant in the triaI court and all that he could do was to invite our attention to paragraph 5 of the application dated November 27 1974
That paragraph however relates to the objection regarding the defective verification of the affidavit accompanying the election petition which is a different matter
That is in fact the subject matter of Mr Bindra s second argument and we shall deal with it separately
The fact remains that an objection regarding the alleged defective verification of the election petition was not taken in the High Court and it was not a point at issue there
There is therefore no justification for allowing it to be raised here
It is in fact significant that even though an objection was taken on November 27 1974 in regard to the verification of the affidavit no such objection was taken about the verification of the main election petition
It was vaguely stated that verification of the affidavit and verification of the Schedule ie Schedule III were at variance but that was a different matter
In so far as the verification of the affidavit is concerned it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No 2 was concerned Schedule III it was verified in accordance with the prescribed form No25 of the Conduct of Election Rules 1961 as true to the election petitioner s information received from the persons mentioned in it
It was therefore quite in order
It may be mentioned that although the High Court examined the objections of the appellant on two occasions no objection was taken or pressed for its consideration in regard to the verification of the main election petition its schedules or the affidavits
An objection was raised in the appellant s application dated November 27 1974 that the election petition may not be tried because of defective affidavit but it was rejected by the High Court s order of the same date on the grounds that it was a belated objection and the allegation of corrupt practice could not be deleted merely because of the defective form of the affidavit
No issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal
It has next been argued by Mr Bindra that the High Court committed a serious error of law in allowing the election petition to be 339 amended after the expiry of the period prescribed for its presentation even though it did not allege that any vehicle was used for the free conveyance of any elector and did not specify the names of the persons who were alleged to have hired or procured the vehicles
It has been urged that as the facts alleged in the petition did not bring out all the ingredients of the corrupt practice there was no cause of action for trial
Reference in this connection has been made to Samant N Balakrishna etc
vs George Fernandez and Others1
Hardwari Lal vs Kamal Singh2 Rai Narain vs Smt
Indra Nehru Gandhi and another3 and Vatal Nagaraj vs R Dayanand Fagar4
By the amendment in question the election petitioners had applied for insertion of a new sub paragraph d in paragraph 12 of the petition as follows The names of the persons who hired or procured the vehicles by which the electors were carried free of cost from their houses to polling station on the date of election by respondent No 1 his workers and agents with his consent are given in schedule IIIi of the election petition
 Schedule IIIi gave the particulars and names of the persons who hired and procured the vehicles for the free conveyance of electors
The High Court took note of the law that a fresh corrupt practice could not be alleged by means of an application to amend the election petition and after referring to the decisions in Balwan Singh vs Lakshmi Narain and others5 and Joshbhai Chunibhai Patel vs Anwar Beg A Mirza6 given before and after the amendment made by Act 47 of 1966 it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for the free conveyance of any elector to and from any polling station it was a necessary particulars to allege and prove that the vehicle was used for the conveyance of the electors
It then noticed paragraph 9 iii  of the election petition which stated that the appellant his workers agents and supporters with his consent hired and procured vehicles for the free conveyance of electors and committed corrupt practice as provided under sub section S of section 123 of the Act
It also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating to the procuring and hiring of tractors jeep and car for free conveyance of voters to thc polling stations from their houses were given in sub paragraphs a and b
Those sub paragraphs clearly mentioned that the vehicles had been hired and procured for the free conveyance of the electors from their houses to the polling stations on the date of poll
Reference was also made to Schedule III of the petition for which it was stated in paragraph 12c of the petition that the full particulars in regard to the corrupt practice were given in it
That schedule contained the particulars of vehicles used for 1  2 3  1972 3 SCR 8114 5  340 free conveyance of electors on the date of election and contained not only the place from which the electors were conveyed the time of conveyance the name of the polling station
The particulars of The vehicle but also the names of the electors who were so conveyed and the names of the workers and agents who conveyed them
The schedule was an integral part of the election petition and the original election petition thus contained what was required to be stated by section 83 of the Act and the amendment was meant to furnish some further particulars in regard to the same corrupt practice
It is therefore futile to contend that a new corrupt practice was allowed to be inserted by the High Court s order of amendment
It may be pointed out that as would appear from paragraph 12c of the appellant s original written statement to the unamended election petition he also understood the allegation in the election petition to mean that it related to the use of the vehicles for carrying the electors to and from the polling stations on the date of poll
It will be recalled that the issues were framed on August 30 1974 before the making of the application for leave to amend the election petition and issue No 2 clearly raised the question whether appellant Balwan Singh or his workers and agents with his consent hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose
 The appellant was therefore fully aware that the election petitioners has inter alia alleged the user of the vehicles also and that was why he joined issue for the trial of that allegation
There is thus no justification for the argument to the contrary
We have already made a mention of issue No 2 and the High Court s finding thereon in favour of  the election petitioners in respect of tractors No as UPG 9962 and UTE 5865 and jeep No UPW 359 for the free conveyance of electors to Naubasta Jaganpur and Tigain polling stations
Mr Bindra has challenged that finding and we shall proceed to examine his arguments in respect of the Naubasta polling station
The election petitioners alleged in the election petition that the appellant his workers supporters and agents hired and procured the vehicles mentioned in Schedule III with his consent for the free conveyance of electors from their houses to the polling stations on the date of poll namely
On February 26 1974
Particulars of the corrupt practice were given in the schedule
It was thus stated
in regard to Naubasta polling station that electors were conveyed there from Bbimpur and Basehi villages by tractor No UPG 9962
in a trolly
It was specifically stated that electors Munshi Lal PW2O Ram Swarup PW 13 and Misri Lal PW 13 of Bhimpur and Radhelal and Bahulal PWIl of Basehi were thus taken to Naubasta
So also it was stated that some of the workers and agents who conveyed the electors were Bhavwan Singh PW 11 and Babu Singh of Naubasta and Maikoo of Bhimpur
The appellant pleaded in his written statement that the allegation was totally incorrect and false and that none of the vehicles men 341 tioned in Schedule III was either procured or hired by the answering A respondent or by any of his workers and agents with his consent for the purposes of carrying voters to and from the polling station nor any such vehicles were used for the purpose of carrying electors to and from the polling stations on the date of poll
 It was not the case of the appellant that tractor No UPG 9962 was taken to Naubasta polling station in some other connection or that there was no occasion or question of hiring or procuring it as it was his own property or that it was otherwise utilised for his election campaign or for some other work
He merely stated that the tractor was not used in connection with the election
 It has been argued by Mr Bindra that the tractor really belonged to the appellant and that his wife was only a benamidar  so that there could be no question of hiring or procuring it whether on payment or otherwise within the meaning of sub section 5 of section 123 of the Act
Reliance in this connection has been placed on Surinder Nath Gautam vs Vidya Sagar Joshi 
That tractor No UPG 9962 belonged to the appellant s wife Smt
Vimla has been clearly admitted by him in his own statement in the High Court
In fact as has been stated it was not his case in the written statement that this was not so and that it was his own property and there could be no question of hiring or procuring it
A U Siddiqui PW2 tax clerk of the office of RTO Kanpur has proved that the tractor was registered in the name of Smt
Vimla Yadav wife of appellant Balwan Singh and that it stood in her name since May 1 1971
Balwan Singh s statement shows that she was an independent candidate for being coopted as a member of the Zila Parishad
and it appears from the statement of Vijay Kumar Singh P W 5 that she was her husband s counting agent
It cannot therefore be urged with any justification that the tractor which belonged to her must be deemed to belong to her husband or that it should be inferred that she was a mere benamidar  when that was not the appellant s case anywhere
We must therefore accept it as proved beyond doubt that tractor No UPG 9962 belonged to the wife of the appellant and was not his own property
There is thus no justification for contending that there could be no question or occasion for hiring or procuring it as it belonged to the appellant
The word procure  has been defined in the Century Dictionary to mean to obtain as by request loan effort labour or purchase get gain come into possession of
 It has been defined in the Oxford English Dictionary to mean to gain win get possession of acquire This in our view is the correct meaning of the words as used in sub section
5 of s123 of the Act
It would therefore amount to procuring the tractor if it could be shown that the appellant obtained or got it or acquired it from his wife
As has been stated
the tractor did not belong to the appellant and in that view of the matter
it is not necessary for us to examine the correctness of the view taken by the Delhi High Court in Surinder Nath Gautam s case supra
1 342 We shall now examine whether tractor No UPG 9962 was used for the free conveyance of any elector to or from the Naubasta polling station on the date of the poll and whether it was hired or pro cured for that purpose by the appellant or his agent or by any other person with his consent
As has been stated polling in the constituency took place on February 26 1974
It has been stated by Vijay Kumar Singh PW S who was the polling agent of respondent Raghunath Singh that he saw the workers of the appellant bringing voters to Naubasta polling station in the trolly of tractor No UPG 9962
The tractor according to him carried the BKD flag and the posters of that party were pasted on the trolly
When he saw the tractor making the first trip to the polling station he made an oral complaint to the presiding officer
It took some time for him to come out of the polling station and by that time the tractor had gone
But when the tractor came for the second time he made written complaint exhibit 4 about it to Mr Singh who was the presiding officer and he made an endorsement on it in his presence
The witness has stated further that the presiding officer came out of the polling station and himself saw the tractor as well as the persons who got down from it
Those persons according to the witness were assisted by the workers of the BKD in standing in the queue at the polling booth
Parchis were given to them from the camp of the BKD which also had that party s flag and posters
According to Vijay Kumar Singh The tractor and the trolly made only two trips to the polling station the second trip being at about 330 pm
The witness has stated further that the presiding officer made an enquiry on his complaint and he must have mention ed the result of the enquiry in his diary
He has stated further that the presiding officer saw the tractor from a distance of about 100 paces and the registration number could be read from that distance
The witness was cross examined at length but nothing could be brought out to discredit his testimony except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh
That might be the reason why the witness was appointed as the polling agent of respondent Raghunath Singh but that distant relationship cannot justify the argument that the witness is unreliable and his testimony should be rejected for that reason
The statement of vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M P Singh PW 6 who was an employee of the UP Institute of Agricultural Sciences and was the Presiding officer of the Naubasta polling station
He has stated that the aforesaid complaint exhibit 4 was presented to him by Vijay Kumar Singh on February 25 1974 at 330 pm and that he made an endorsement to that effect on the complaint
The complaint exhibit 4 was in Hindi but it  is not disputed that its English translation reads as follows It is submitted that the workers of Sri Balwan Singh have brought voters in UPG 9962 tractor trolly bearing flag and the agents of BKD are setting them in queue
It is 343 entirely illegal
I have already spoken to you in this connection
But no action has been taken
Kindly taker proper action
 M P Singh has stated that he came out of the polling station as the polling agent said that he should see things for himself and also because he was aware of paragraph 60 of the Instruction to Presiding officers issued by the Election Commission of India
The witness admitted that it was the requirement of the instruction that the Presiding officer of the polling station should forward any complaint filed before him in regard to the illegal conveyance of voters to the sub divisional and other magistrate having jurisdiction with such remarks as he could make on his own observation and personal knowledge He saw on coming out of the polling station that a tractor and trolly were standing at a distance of 500 or 600 yards from the polling 
station
The witness admitted ultimately that the tractor was standing near the camp of the BKD he saw some persons getting down from the tractor and the trolly and that those who got down from the tractor were seen by me him going towards the BKD Camp
 It may be mentioned that the High Court allowed the counsel for the election petitioners to cross examine the witness as there was some inconsistency in the statement made by 1 him in the Court and the report exhibit 5 made in his diary
We shall refer to that report in a while
It was then that the witness stated as follows I had read the whole of the complaint exhibit 4 while going out
Having seen the tractor and the trolly outside the polling station near the BKD camp and having seen the persons getting down the tractor and trolly and moving towards the camp I concluded that everything contained in the complaint exhibit 4 was correct and it was for this reason that I mentioned in the report exhibit 5 that the facts of the complaint were found to be correct
I stayed outside the polling station for hardly 5 or 6 minutes
 The witness has therefore corroborated the statement of Vijay Kumar Singh PW 5 in several material particulars
He has thus stated that i complaint exhibit 4 was presented to him on February 26 1974 at 330 pm by Vijay Kumar Singh ii he read the whole of it iii he came out of the polling station to see for himself whether the allegation was correct iv he saw that the tractor and trolly were outside the polling station near the BKD camp v persons were getting down the tractor and trolly and vi they were moving towards the camp
The witness has also stated that he forwarded the complaint to the District Election officer and that he made report exhibit 5 in his diary to the following effect 22 Serious complaint made by the candidates
The Congress polling agent made a complaint that BKD workers were conveying voters to the polling station by a tractor and trolly  The fact of the complaint were found to be correct and the complaint forwarded
 344 M P Singh was cross examined in regard to the correctness of the report but he was unable to deny its genuineness or correctness
His explanation that he merely concluded after seeing what he has stated that everything contained in complaint exhibit 4 was correct but did not notice the registration number of the tractor and did not see any flag or posters on the tractor or the BKD agents setting them in queue cannot be accepted because of his statement that he went out of the polling station as he considered it necessary to see for himself whether the allegation was correct and also because of his contemporaneous note in the diary that the facts of the complaint were found to be correct
 We have therefore no reason to disagree with the view taken by the High Court that the statement of M P Singh and documents Exs 4 and 5 go to prove the correctness of the statement of Vijay Kumar Singh PW 5
Mr Bindra has argued that M P Singh could not have seen the registration number of the tractor as it was standing at a distance of 500 or 600 yards from the polling station and that there is no reason to disbelieve his statement to that effect
It would be sufficient for us to say in this connection that Vijay Kumar Singh PW 5 has stated that the Presiding officer had seen the tractor from a distance of about 100 paces and his statement to that effect has not been contradicted by any other witness except M P Singh PW 6 who as has been shown tried to give an inconsistent statement and was allowed to be cross examined by an order of the High Court
But even M P Singh has stated that he saw the tractor standing near the BKD camp
Section 130 of the Act prohibited canvassing or exhibiting any notice or sign within a distance of 100 metres of the polling station and Mr Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate his camp at that distance
Moreover if it had not been possible for M P Singh to see the registration number of the tractor he would not have recorded in his report exhibit 5 that the facts mentioned in the complaint exhibit 4 were found to be correct
 The same is the position in regard to M P Singh s statement that he did not notice whether the tractor and the trolly did or did not carry any flag or posters
It is pertinent to point out in this connection that the complaint exhibit 4 of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly and it would not have been possible for him to conclude that everything contained in the complaint exhibit 4 was correct if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the appellant
It has been stated by Vijay Kumar Singh PW S that the persons who got down from the tractor trolly went and took parchis from the BKD camp outside the polling station
M P Singh PW 6 has also stated that those who got down from the tractor were seen by him going towards the BKD camp
It is not the case of the appellant that they were not the electors of the constituency
In fact it would not have availed him or his workers to bring those who were not the electors to the polling station
The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta 345 were Babu Lal PW 11 and Radhey Lal PW 12 of village A Basehi and Ram Swarup PW 13 Misri Lal RW 13 and Munshi Lal PW 20 of village Bhimpur
While Babu Lal Radhey Lal Ram Swarup and Munshi Lal have been examined by the election petitioners Misri Lal RW 13 has been examined by the appellant
We have gone through the statement of these witnesses
Babu Lal PW 11 has stated that a tractor having a trolly came to Basehi on the date of poll carrying the flag and posters of the BKD and that he travelled in it to the polling station along with others including Radhey Lal PW 12 Kunji Lal Hira Babbu Prasad and Raghubar Dayal and that no fare was demanded or was paid Voluntarily
Radhey Lal PW 12 has stated much to the same effect except that he was not asked to name the other persons who travelled with him in the trolly
He has however stated that Babu Lal had gone with him in the trolly
Nothing has been elicited in the cross examination to shake the testimony of these witnesses
We have also gone through the statements of Ram Swarup PW 13 and Munshi Lal PW 20 of Bhimpur
Ram Swarup has stated that a tractor and trolly carrying the flag and posters having the symbol of Haldhar Kisan came to Bhimpur on the date of poll and that he and Munshi PW 20 and Lallu Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything
He has stated that he returned to the village in the same tractor after casting his vote
Munshi Lal PW 20 has deposed much to the same effect and he has stated that Ram Swarup PW 13 also travelled in the tractor trolly along with the other persons named by him
The statements of these witnesses have not been shaken in cross examination
As has been stated Misri Lal RW 13 was also named in the schedule to the election petition as the elector who was conveyed in the tractor trolly and he has been examined on behalf of the appellant
He has stated that there is a distance of 2 or 2 12 furlongs between the abadi of Bhimpur and the abadi of Naubasta and that he went on foot to cast his vote at the polling station
He has stated further that the persons living at Bhimpur had gone to the polling station on foot and that it was wrong to say that any tractor come to Bhimpur to transport the voters to the polling station
The appellant has admitted that he knew Misri Lal for 3 or 4 years and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has been made above
It was specifically stated in Schedule III of the election petition that Bhagwan Singh RWll and Babu Singh of Naubasta and Maikoo of Bhimpur were the workers and agents of the appellant who conveyed the electors to the Naubasta polling station
Of these only one Bhagwan Singh RWll has been examined on behalf of Balwan Singh
He has stated that it was wrong to say that he Maikoo and 346 Babu Singh brought any voters in tractor trolly from Bhimpur to Naubasta or that he got any parchis distributed to any voters in the queue at the polling station
It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur
Bhagwan Singh RWll has admitted that there r was another Bhagwan Singh in his village
He has stated that he did not see appellant Balwan Singh during the election in his village that he had put the flag and poster of the Congress party at his house and that he and his sons worked for the Congress in the election
As against this the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of BKD It therefore appears that Bhagwan Singh RWll cannot be said to be the worker named in the Schedule of the petition and nothing can possibly turn on what he has stated
It will be recalled that Vijay Kumar Singh PW5 who was the polling agent of the Congress candidate at Naubasta had stated in the trial court that he had made an oral as well as a written complaint about the conveyance of voters by the workers of the appellant to the Presiding officer
The appellant also appointed his polling agent at the polling station but he has not examined him in rebuttal of Vijay Kumar Singh s statement to that effect
We have gone through the other evidence which has been led by way of rebuttal of the allegation regarding the use of tractor No UPG 9962 for the conveyance of electors to Naubasta polling station
We have already dealt with the statements of Bhagwan Singh RW 11 and Misri Lal RW13 and have given our reasons for rejecting them as unsatisfactory
The remaining witnesses to whose testimony our attention has been invited by Mr Bindra are Vijai Pal Singh RW14 and appellant Balwan Singh RW34
Vijai Pal Singh is a self condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress o candidate and did not see any tractor trolly conveying voters to Naubasta polling station although he remained present at the polling station he admitted under cross examination that he was not a polling agent at the Naubasta polling station and had made a false statement to that effect
In so far as Balwan Singh RW34 is concerned it will be sufficient to say that he has admitted that he did not go to Naubasta on the date of the poll
He could not therefore disprove the evidence of the election petitioners in regard to the alleged corrupt practice
He once ventured to state that he came to know on the next day after polling that his tractor had gone to the National Sugar Institute for transporting seta and patwar but he qualified that statement by saying that the tractor may have been sent there by his wife and that seta and patwar were obtained before February 26 1974
An attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute but it was given up by Balwan Singh
He cannot therefore be said to have rebutted the evidence of the election petitioners
It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu 347 Singh and Maikoo in the election petition they were not examined in defence
It may be mentioned that some witnesses of the election petitioners namely Babu Lal PWII Ram Swarup PW13 and Munshi Lal PW20 named certain persons who according to them travelled with them to the polling station Naubasta free of cost
Most of those persons were summoned at the instance of the appellant but they were not examined ultimately and were given up
The election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for the conveyance of the electors to the Naubasta polling station
Amarpal Singh PW33 has stated in this connection that he held a diploma in motor mechanism and was running a repairing shop at Rawatpur for motors and tractors
The appellant was known to him and asked him to do the repair work of the vehicles at the BKD office at Rania for Rs 25 per day
He has stated further that he went to Rania and worked there for 12 days
One day before polling the tractor of the appellant was brought to Rania as it had developed some defects
Balwan Singh s wife Smt
Vimla and his driver were present when he was working on that tractor
Ram Swarup Sharma Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairing work as early as possible and he asked Smt
Vimla to send the tractor to Naubasta with Babu Singh for transporting voters
Witness has stated further that his partner Ramesh was present at that time
Ram Swarup Sharma is dead
Appellant Balwan Singh cited Babu Singh as a defence witness but gave him up
He did not examine Ramesh
Uma Shankar RW24 was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there but he has not stated anything about Amarpal Singh and it is difficult to place reliance on his statement as he was admittedly a worker of the BKD party in Rania
Rania according to the witness had a population of some 3500 persons and it is difficult to believe that the appellant had no office there
The appellant recorded his own statement to the effect inter alia that he did not employ Amarpal Singh for repairing any vehicle and did not give any instruction that Babu Singh should take the tractor for transporting voters
No reason has how ever been assigned why Amarpal Singh should have tried to implicate the appellant falsely
The trial Judge has placed reliance on his statement and we see no reason for taking a different view
Tractor UPG 9962 belonged to the appellant s wife Smt
Vimla and it was alleged from the very inception in the contemporaneous report exhibit 4 that it had been used for the conveyance of electors some of whom were named in the Schedule to the election petition along with the names of the workers and agents who utilised the tractor for the work
It could be expected of the appellant that he would give satisfactory particulars and details about any other use of the tractor on the date of the poll if that was within his special knowledge but he has not done so
On the other hand as has been 348 shown his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure
His wife Smt
Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal
It is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent but this can be inferred from 
the proved circumstances where such inference is justifiable
Reference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri vs Badri Narayan Singh and others1 and Shri Umed vs Raj Singh and others2
In the present case it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta 1  a polling station and r that it was so used by the workers of the appellant
Then there is the further fact that the voters were conveyed free of cost
It has also been proved that the tractor belonged to the appellant s wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose
In these facts and circumstances it would be quite permissible to draw the inference that the tractor had been procured by the appellant for the free conveyance of the electors
For the reasons mentioned above we have no doubt that the finding of the High Court that appellant Balwan Singh procured tractor No UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the Naubasta polling station and he thereby committed a corrupt practice within the meaning of  section 1235 of the Acts
is correct and must be upheld
In view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No UTE 5865 and jeep No UPW 359 for the free conveyance of electors to two other polling stations
It may be mentioned that in arriving at the above finding we have   taken due note of the view expressed by this Court in Ram Awadesh Singh vs Sumitra Devi and others8 in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produce a large number of witnesses some of whom may be seemingly disinterested and the view expressed in Rahim Khan vs Khurshid Ahmed and others4 that an election once held should not be treated in a light hearted manner and  the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate
So also we have noticed the view expressed in Baburao Ragaji Karem ore and others vs Govind and others5 that the Court should 1 AIR 1960 SC 200
2  3  4 19751 SCR 643
5  349 examine the evidence having regard to the fact that where the electorate has chosen their candidate at an election their choice ought not to be lightly upset
We have also taken notice of the view expressed by Ray CJ in Smt
Indira Nehru Gandhi vs Raj Narain1 that in an election contest it is the public interest not the parties  claims which is the paramount concern
Mr Bindra has placed consider  able reliance on these decisions
But as has been shown the finding of the High Court regarding the aforesaid corrupt practice is based on clear cogent and convincing evidence and there is no justification for interfering with it
Mr Bindra has laid much stress on the fact that the appellant was successful at the election to the UP Legislative Assembly from another constituency in 1957 but his election was set aside on the round inter alia that he andor his election agent andor other persons with his consent had committed corrupt practice including the corrupt practice of hiring a tractor for the conveyance of electors
He has argued that in view of this Court s decision against him in Balwan Singh vs Shri Lakshmi Narain and others supra he could not possibly have taken the risk of committing another similar corrupt practice at the election in question
The argument is based on mere conjecture and cannot disprove or rebut the clear cogent and reliable evidence on which the appellant has been held guilty of committing the corrupt practice in this case
Mr Bindra tried to argue further that the High Court committed an illegality in setting aside the appellant s election without finding that the result of the election had been materially affected thereby
The argument is misconceived for it is not the requirement of section 1001 b which has been found to be applicable to the corrupt practice in question that the High Court should declare the election of the returned candidate to be void only if the result of the election has r been materially affected by it
Another argument of Mr Bindra was that the corrupt practice in question should not have been found to have ben committed as the election petitioners did not examine themselves during the course of the trial in the High Court
There was however no such obligation on them and the evidence which the election petitioners were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely
In the result the appeal Civil Appeal No 775 of 1975 filed by Balwan Singh fails and is dismissed with costs
The cross appeal Civil Appeal No 1107 of 1975 is dismissed as not pressed but without any order as to the costs
PBR Appeal dismissed
1 AIR 1975 SC 299


Summary:
The appellant s election to the State Assembly was set aside by the High Court on the ground of corrupt practice falling under section 123S of the Representation of People Act
The appellant it was alleged hired and procured vehicles for the free conveyance of voters
This was however denied by the appellant
The High Court allowed amendment of the election petition by inserting a new sub paragraph 12d stating that the names of the persons who hired or procured the vehicles for carrying the voters to the polling station were given in schedule lIIi of the petition on the view that the information given was a necessary particular to allege and prove that the vehicle was used for the conveyance of the voters
It was contended in this Court
i that the tractor in which the voters were alleged to have been carried to the polling station was taken there in some other connection and that though the tractor was in the name of his wife as benamidar
it really belonged to the appellant and as such no question or hiring or procuring it whether on payment or otherwise arose so as to make it fall within the purview of section 1235 of the Act
and ii that the High Court had committed a serious
error of law in allowing the election petition to be amended after the expiry of the period prescribed for its presentation
Dismissing the appeal  HELD  The finding of the High Court that the appellant procured the tractor with trolly and used it for the purpose of transporting the voters to the polling station and thereby committed a corrupt practice within the meaning of section 1235 of the Act is correct
348E 1 a There is no justification for contending that there could be no question or occasion for hiring or procuring the tractor because it belonged to the appellant
It cannot be urged that the tractor which belonged to his wife mutt be deemed to belong to the appellant or that it should be inferred that she was a mere benamidar when that was not the appellant s case anywhere The tractor belonged to the wife of the appellant and was not his own property 341E F1 b It would amount to procuring the tractor if it could be shown that r the appellant obtained or got or acquired the tractor from his wife The dictionary meaning of the word procure is to obtain as by request loan effort labour get gain come into possession of
This is the correct meaning of the word used in section 125
341G H c It is not always possible for an election Petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent but this can be inferred from the proved circumstances where such inference is justifiable
348B 336 Bhagwan Datta Shastri vs Badri Narayan Singh and others AIR 1960 SC 200 Shri Umed vs Raj Singh and others
R 1975 SC is Ram Awadesh Singh vs Sumitra Devi and others
  Rahim Khan vs Khurshid Ahmed and others  Baburao Ragaji Karemore and others vs Govind and others  and Smt
Indira Nehru Gandhi vs Raj Narain
 referred to
2 It is futile to contend that a new corrupt practice was allowed to be
inserted by the High Court s order of amendment
The schedule was an integral part of the election petition and the original election petition contained what was required to be stated by section 83 of the Act and the amendment was meant to furnish some further particulars in regard to the same corrupt practice When issue No 2 was framed by the High Court the appellant was fully aware that the election petitioners had alleged the user of the vehicles also and that was why he joined issue for the trial of that allegation
340B C 3 There is no obligation on the part of the election petitioners to examine themselves at the trial in the High Court
The evidence which they were able to produce at the trial could not have been rejected for any such fanciful reason when there was nothing to show that the election petitioners wereable to give useful evidence to their personal knowledge but stayed away purposely 349F