Case: Joshbhai Chunibhai Patel Vs. Anwar Beg A. Mirza

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.10. This brings us to the examination of Section 123 (5) with a view 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:"The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person 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 family or his agent) to or from any polling station provided under Section 25 or a place fixed under sub-section (1) of Section 29 for the poll: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." .The 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, it 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 other 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.11. In the present case there is proof that the vehices 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 not proved and therefore the ingredients of the Section have not been established. In our opinion therefore there is no room for interference although, our reasons are slightly different from those of the High Court.12. It was next contended that a general recount was demanded in the case and has been wrong 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. 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 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 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.10. This brings us to the examination of Section 123 (5) with a view 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 theSection 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, it 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 other 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.11. In the present case there is proof that the vehices 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 not proved and therefore the ingredients of the Section have not been established. In our opinion therefore there is no room for interference although, our reasons are slightly different from those of the High Court.12. It was next contended that a general recount was demanded in the case and has been wrong 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 interferedour 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 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.