Judgment

HIDAYATULLAH, C.J.I. : 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.

2. 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.

3. The election petition set out a number of grounds on which the election of the returned candidate was challenged as void under 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 recount 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.

4. 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 Manilal 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 Manilal Shah to request the Presiding Officer of one of the booths to come out. Presiding Officer B. M. Bhat 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 car 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 allegation 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 earth 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 h