Case: Ram Dayal Vs. Brijraj Singh And Ors

1. At the general elections held in February 1967, Brijraj Singh (first respondent in this appeal) was declared elected to a seat in the Madhya Pradesh Legislative Assembly from the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes. The appellant Ram Dayal who is a voter in the constituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two groundsthat the nomination paper of one Dhani Ram was illegally rejected by the Returning Officer; and(2) that Brijraj and his agents committed several corrupt practices in relation to thethird ground that Dataram (third respondent in this appeal) when his nomination was accepted was below the age of 25 and was on that account incompetent to stand for election, was sought to be set up an application for amendment of the election petition. The application was disallowed by the High Court. The High Court held that an application for amendment which sought to set up a new ground made after the expiry of the period prescribed for filing an election petition cannot be entertained. On a consideration of the evidence the High Court rejected the other grounds, and dismissed the petition. The appellant has appealed to this Court.2. An election petition has, under Section 81 (1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election. An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under Section 100 (1) (d) (i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not be permitted to be added. This Court in Harish Chandra Bajpai v. Triloki Singh, 1957 SCR 370  = (AIR 1957 SC 444 ) held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included, provided the ground or charges are specifically stated in the petition, but its power to permit amendment of a petition under Order VI, Rule 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charges to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred. By the amendment a new ground for setting aside the election was sought to be introduced and the High Court was right in rejecting the application for amendment.

Reasoning:
3. The plea that the rejecting of the nomination paper of Dhani Ram by the Returning Officer was illegal has no substance. On January 19, 1967 Dhani Ram delivered to the Returning Officer two nomination papers signed by him. Each nomination papers bore a thumb impression of one Gokla as the proposer. But the thumb impressions were not authenticated or attested in the presence of the Returning officer or any other officer specified in the Rules. The Returning Officer rejected the nomination33 (1) of the Representation of the People Act,Chhotey Lal has not appealed against the order recorded against him. He is impleaded as a party-respondent and he has appeared before this Court through counsel. At the hearing counsel appearing for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was guilty of the corrupt practice charged against him is contrary to evidence. But in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted to be agitated by him.The appeal was filed by the appellant challenging the order of the High Court refusing to set aside the election of Brijraj Singh on the three grounds set out hereinbefore. The scope of the appeal cannot be expended by permitting Chhotey Lal who could have, but has not chosen to appeal, to plead that he has not committed any acts amounting to a corrupt practice.8. The case that Brijraj Singh gave Rs. 250/- to Sone Ram and induced him to withdraw his candidature is unreliable. One Shanker Lal deposed that on Jan. 19, 1967, he set Brijraj Singh and Sone Ram in the compound of the office of the Collector, Morena, and the former induced Sone Ram not to contest the election and offered to pay a bribe of Rs. 250/-, and paid Rs. 250/- to Sone Ram. According to the witness there were several persons present at the time when the bribe was offered and paid, but none of those persons was called as a witness on behalf of the appellant. One Tikaram who was alleged to the present was examined on behalf of Brijraj Singh and he denied that any such offer was made or bribe paid. Sone Ram also denied that he had received any bribe from Brijraj Singh. He stated that he had borrowed Rs. 200/- from his maternal uncle to deposit the amount for his candidature but since his maternal uncle declined to incur any further expenditure and dissuaded him from contesting the election he had to abandon his candidature. In the opinion of the Trial Judge the witnesses Shankarlal was an untruthful witness and we see no reason to disagree with that view.The learned Judge summarised the evidence of the witnesses on behalf of the appellant and concluded that the appellant had "miserably failed" to establish that Brijraj Singh and his agents Laxmichand and Shankarlal had made any statements derogatory to the personal character of Pancham Singh. In the view of the learned Judge it was not proved that Brijraj Singh and his two agents had made statements that Pancham Singh was an associate of dacoits, nor was the statement that Pancham Singh had misappropriated the funds of the school proved. The learned Judge also held that the statement alleged to have been made by Brijraj Singh and his agents that Pancham Singh was responsible for getting the school at Pahadgarh closed and that "he lets loose ferocious dogs towards the persons who go to see him" were trivial and did not involve any moral turpitude, and even assuming that those statements were made, no corrupt practice could be said to have been committed on that account under Section 123 (4) of the Act.11. The learned Trial Judge found that Chhotey Lal committed a corrupt practice by distributing pamphlets casting reflections upon the personal character of Pancham Singh. But in the view of the learned Trial Judge there was no reliable evidence to prove that Chhoety Lal acted on behalf of Brijraj Singh or that the latter defrayed the expenses of the Pamphlet or that the agents of Brijraj Singh distributed the offending pamphlets. The learned Judge has carefully considered the evidence and no serious argument has been advanced before us on that part of the case which may justify us in taking a different view. Not a word was said that the expenses incurred by Chhotey Lal for getting the pamphlets printed were reimbursed nor was the evidence of the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the appellant that Brijraj Singh and his agents circulated the pamphlets true. The learned Judge observed that the story that out of the 2500 copies of the pamphlets printed, 2000 copies of the pamphlets had been handed over by Chhotey Lal to Brijraj Singh on the night of Jan. 19, 1967 was "a clumsy and crude invention of those two witnesses", and "was utterly false and unreliable". After considering the various improbabilities and the discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and Kalyansingh Tyagi, the learned Judge observed that those witnesses invented lies" and did "their best to introduce clumsy and crude improvements at the stage of evidence" with the "object of bolstering up" the appellants case and through him that of Raja Pancham Singh. In his view the story that the pamphlet Annexure A was issued or circulated with the consent of Brijraj Singh was false. The learned Judge also found on a consideration of the evidence that at no stage did Chhotey Lal support the candidature of Brijraj Singh and that it was not proved that the pamphlet Annexure A was ever issued or circulated with the consent of Brijraj Singh. In his view Brijraj Singh had no connection with the printing and publication of the pamphlet and on that account the plea of corrupt practice set out and founded on the circulation of the pamphlet was not proved. We see no reason to disagree with the view expressed by the learned Judge.There was no reliable evidence that the candidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of Gwalior. The opinion expressed by the witness Dataram cannot do duty for evidence in support of the case of the appellant. Sanwaldas Gupta and Kalyansingh Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his candidate for election, but they were told by the Maharaja that he had already decided to set up Brijraj Singh as his candidate and that they also should actively support him. The evidence of these witnesses was found to be unreliable by the High Court. In our judgment the High Court has rightly rejected their testimony. It was said that in certain villages speeches were made by Birjraj Singh that he was set up as a candidate by the Rajmata of Gwalior. But there is no reliable evidence in support of that case.A large number of witnesses Keshrisingh, Narayan, Sardarsingh, Dhaniram, Phoolsingh, Kanhiayalal, Mata Prasad, Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides the appellant, were examined in support of that case, Brijraj Singh admitted that on February 4 or 5 1967, the Rajmata had visited the villages Kelaras and Sabalgarh and had addressed meeting in those villages. But he denied that she declared in these meetings that he was set up as a candidate by her. He further stated that the Maharaja had visited on February 11 or 12, February 1967, five villages, Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter and addressed meetings in those villages. But in none of those meetings did he declare that Brijraj Singh was a candidate set up by the Maharaja. The witnesses examined on behalf of the appellant were, in view of their general tenor, found unreliable. The learned Judge therefore stated his conclusion that on February 4 or 5, 1967 the Rajmata of Gwalior visited two villages, Kelaras and Sabalgarh and addressed meetings there; and her son the Maharaja visited five villages, namely Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter on or about February 11 or 12, 1967 and addressed meeting there, but there was no reliable evidence to prove that Brijraj Singh was sponsored as a candidate by the Rajmata or the Maharaja of Gwalior. In the view of the learned Judge the testimony of the witnesses on behalf of the appellant was "so thoroughly unreliable that no reliance could be placed upon it." He concluded after considering the evidence of Budharam, that Brijraj Singh was an independent candidate and contested the election as an independent candidate, and even though meetings were addressed by the Maharaja and his mother - the Rajmata - they did not say that Brijraj Singh was set up as "their candidate." We have carefully gone through the evidence of the witnesses and heard the arguments advanced at the Bar and see no reason to disagree with the view taken by the learned Judge.17. The evidence of the witnesses that Brijraj Singh travelled with the Maharaja of Gwalior in his helicopter and visited several villages for his election campaign was also unreliable and was, in our judgment, rightly disbelieved. The evidence shows that when the Maharaja visited the village Kelaras the only occupants in the helicopter were the Maharaja and the pilot and that Brijraj Singh was not in the helicopter when the Maharaja visited Kelaras. Similarly about the village Jhundpura there is evidence that Brijraj Singh was not with the Maharaja in the helicopter. About the village Budhreta the witness Phool Singh deposed that Brijraj Singh was in the helicopter travelling with the Maharaja. But from the cross-examination of the witness it appears that his testimony was "worthless". The testimony of Phool Singh was inconsistent with the testimony of Ramcharanlal - Sarpanch of the village. Similarly about the visit of Sabalgarh village two of the witnesses examined were Budhram and Sanwaldas Gupta. Budhram said nothing about Brijraj Singh accompanying the Maharaja in the helicopter Sanwaldas Gupta supported the case of the appellant, but having regard to his interest in the appellant and the general unreliability of his testimony, he could not be believed. About the village Pahadgarh, according to Mata Prasad examined on behalf of the appellant Brijraj Singh was in the helicopter and the witness claimed that he had taken photographs of Brijraj Singh while he was in the helicopter. We have seen the original photographs. Exts. P - 11A, P-11B, P-12A, P-12B, P-13A and P-14A which are in respect of the journeys by the helicopter, the helicopter getting ready for take off, of the meetings addressed by the Maharaja and of the occupants in the helicopter. Some of the photographs are so hazy and indistinct that it is impossible to identify any one in the group. For instance the photograph Ext. P - 13A in which it is claimed that Brijraj Singh was in the helicopter shows merely a smudge and it is impossible to say that any one was sitting in the helicopter. In the view of the learned Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false testimony that Brijraj Singh had accompanied the Maharaja at the time when the helicopter landed and also when it took off and on the consideration of the evidence it was established that Brijraj Singh was not with the Maharaja of Gwalior either at the time when the helicopter landed at the five villages - Kelaras, Jhundpura, Budhreta, Sabalgarh and Pahadgarh or when the helicopter took off. The learned Trial Judge disbelieved the witness Mata Prasad. We have scrutinised the evidence of Mata Prasad and have seen the original photographs and have no doubt that the learned Judge was right in holding that the testimony of the witness Mata Prasad was unreliable.it is established that the expenditure was incurred in connection with the election by the candidate or by his election agent or was authorised by him it is not liable to be included under Section 77 of the Representation of the People Act.We agree with the High Court that under Section 77 (1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without anything more need not be included in the account or return, as such incurring of expenditure would be purely voluntary.Assuming that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be by Brijraj Singh it was not liable to be included in the account of the election expenses.19. We agree with the High Court that there is no evidence of the record to prove that Brijraj Singh actually spent any money on the helicopter used by the Maharaja in visiting the five villages and the two cars used by the Rajmata in visiting the two villages. There is no evidence on the record direct or circumstantial to prove that Brijraj Singh had authorised the Maharaja and his mother to incur the expenditure on the helicopter and the two cars. It is not necessary then to consider whether the expenditure incurred by the Maharaja and the Rajmata of Gwalior in respect of the helicopter and the motor cars can be said to be expenditure incurred by a political party for carrying on propaganda to promote their views and their party interest and their policies and to educate the electoral constituency, and on that account is not liable to be included in the election expenses of the candidate.20. Having carefully considered the evidence and having heard the arguments advanced at the Bar at considerable length, we are of the view that the appellant has failed to establish that Brijraj Singh was set up as a candidate by the Maharaja or the Rajmata of Gwalior as their nominee or that the Maharaja and the Rajmata had incurred any expenditure as an agent of Brijraj Singh or the expenditure incurred by the Maharaja and the Rajmata of Gwalior was authorised by the Brijraj Singh and was liable to be included in his account of election expenses under Section 77 of the Representation of the People Act, 1951.