Case: Shri Balwan Singh Vs. Shri Lakshmi Narain &amp; Others

1. Three candidates, Balwan Singh (hereinafter referred to as the appellant), Ram Dulari and Gaya Prasad, contested the election to the U. P. Legislative Assembly from the Akbarpur Rural Assembly Constituency No. 6, at the last general elections held in 1957. The polling of votes took place on February 28, 1957, and the result of the election was declared on March 2, 1957. The appellant secured the highest number of votes and was declared duly elected. A voter named Lakshmi Narainwho will hereinafter be referred to as the first respondentsubmitted an application to the Election Commission of India to declare the election of the appellant Balwan Singh void on the ground inter alia that the appellant "and/or his election agent and/or other persons with his consent, had committed corrupt practices and the result of the election was materially affected by such corrupt practices committed in his interest." In Cl. (f) of paragraph 9 of the petition, which is material for this appeal, it was averred by the first respondent, that in villages set out in annexure D, the appellant, his agents and workers with the consent of the appellant, hired and procured bullock carts and tractors for conveying women electors to and from the polling station. In Sch. D, was set out a list of 30 villages. This election petition was referred for trial to the District Judge, Kanpur, who was constituted the Election Tribunal for trying the petition. The appellant by his written statement contended that the averments made in Cl. (f) of para 9 were untrue; that neither he nor his agents of workers had ever hired or procured bullock carts or trucks to convey women voters from the villages set out in Annexure D or any other village to the polling station. He also submitted that the first respondent had not disclosed the names of the voters nor the particulars of the conveyances, and that the latter could not in view of the defective pleading be permitted to challenge the election of the appellant on that charge. On July 15, 1957, the first respondent applied for leave to amplify the particulars set out in the various clauses of para. 9 including the particulars set out in Cl. (f) and prayed for leave to amplify the recitals in that clause by incorporating Ann.in the petition. In Ann.the first respondent set out the nature of the vehicles used, the names of the owners of the vehicles, the names of the villages from which women voters were conveyed at the expense of the appellant to the polling station and back, the hire paid, and the description of the families to which the women voters who were conveyed belonged. The appellant submitted in rejoinder that by his application, the first respondent in substance sought not to amplify the particulars given by him, but to make allegations about fresh corrupt practices, and prayed that several clauses including cl. (f) of para. 9 be deleted. On July 29, 1957, the Election Tribunal rejected the application of the first respondent. He observed that: "Merely saying that the corrupt practice was followed in the villages whose list was given in annexure D does not amount to giving particulars as were required to be furnished by the aforesaid Section 83(1)(b) of the Representation of the People Act" and directed that certain paragraphs including cl. (f) of para 9 and Annexure D be struck off :2. Relying upon a judgment of the Allahabad High Court delivered on September 9, 1957, Mubarak Mazdoor v. K. K. Banerji, 13 ELR 310: (AIR 1958 All 858  ) in which, the practice to be followed in dealing with the allegations of corrupt practices, made in an election petition, on the ground of vagueness, was enunciated the first respondent applied for review of that order. The Election Tribunal, by its order, dated September 13, 1957, accepted the plea of the first respondent for review of the order, and directed that the order dated July 29, 1957, be set aside.3. The appellant applied under Art. 227 of the Constitution, to the High Court of Judicature at Allahabad, challenging the correctness and propriety of the order of Election Tribunal reviewing its order dated July 29, 1957. By this order dated March 6, 1958, the High Court substantially confirmed the order passed by the Tribunal. The High Court observed that the Tribunal had jurisdiction to review its earlier order, and that in the circumstances of the case it was unnecessary to decide whether the order datedwas properly passed because the order dated July 29, 1957, was "unjust and improper," and the matter having been brought before it in a proceeding under Art. 227 of the Constitution, the High Court could rectify the error by setting aside the earlier order, Pursuant to the order passed by the High Court the averments made in Cl. (f) of para. 9 were restored, and Ann.was incorporated in the petition.4. By its order dated August 16, 1958, the Tribunal dismissed the petition holding that the first respondent failed to establish the corrupt practices on which the petition was founded. Dealing with the corrupt practice set out in Cl. (f) of para. 9, the Tribunal observed that the corrupt practice described in S. 123(5) of the Representation of the People Act, lies in the act of hiring or procuring vehicles by a candidate or his agent, and that this corrupt practice is not committed merely by conveying the voters, and as the particulars of hiring and procuring of the vehicles were not furnished in the petition, and the evidence adduced by the first respondent to support his case of hiring or procuring vehicles was unsatisfactory the case of the first respondent about the commission of a corrupt practice by the appellant stood unsubstantiated.5. In an appeal under S. 116A of the Representation of the People Act, against the order of the Election Tribunal the High Court of Judicature at Allahabad set aside the order and declared the election of the appellant void. The High Court held that the petition was defective in that it omitted to set out the date and place of the hiring of the tractor, which was proved to have been used for conveying voters to the polling station, but no prejudice was caused to the appellant as a result of that omission. In the view of the High Court the testimony of A. P. Malik, the Presiding Officer at Naholi polling station, corroborated by exh. 22, a petition submitted on the date of the polling by one Raghuraj Singh, agent of Ram Dulari, a contesting candidate, and further supported by the evidence of witness Kalika Prasad and another witness Raghuraj Singh, established that voters were conveyed in a trailer attached to a tractor, at the instance of the appellant to the Naholi polling station, and that the evidence of one Hanuman Singh established the contract of hiring the tractor used for conveying voters to the polling station. The High Court accordingly held that the appellant had committed the corrupt practice of hiring a vehicle for conveying voters to the polling station.

Reasoning:
But this appeal has been filed with special leave granted under Art. 136 of the Constitution.It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art. 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.12. This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. We may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before the Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the Naholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of voters".; that some persons, a majority of whom were women, were sitting on the tractor; that a red flag was hoisted and posters of the socialist party were pasted on the tractor; and that some men and women, who came on the tractor, were placed in the queue of voters. There was also the evidence of Raghuraj Singh, P. W. 38, a voter in the constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station ; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer ; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of the two witnesses, Raghuraj Singh, P. W. 30 and Raghuraj Singh Singh P. W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the appellant at the election. There was no sufficient reason for discarding this testimony. Witness Hanuman Singh, P. W. 56 deposed that he was present at the time of the settlement of the bargain of hiring the tractor belonging to Chandra Bahadur for conveying voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing.