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1965 Supreme(MP) 121
High Court Of Madhya Pradesh
T. P. Naik and N. M. Golvalker, JJ.
HARIRAMSINGH - Appellant
Versus
KAMTAPRASAD SHARMA - Respondents
First Appeal 88 Of 1964
Decided On : 10/29/1965
M.V.TAMSKAR, R.K.Tankha, Y.S.DHARMADHIKARI
Headnote:(1) Representation of the People Act, 1951 - S.123 (1)-corrupt practice - must be a proved beyond reasonable doubt - installation of public fountains be a candidate and his election agent as office bearers 4 a Municipal Council-presumption to be made in favour of candidate
It is settled law that charges of corrupt practices are quasi criminal in character and must be established by person setting it up beyond reasonable doubt by evidence which is clear and uaambiguous - proof by mere preponderance of probabilities, as in the trial of a civil suit is not enough. 1957 SCR 370 and AIR 1964 SC 1366 relied on, [para 5
The appellant candidate and his election agent were Chairman of the Standing Committee and President of the Municipal Council, respectively. On the application of the inhabitants recommended by the Municipal Officials and ward members after charging the requisite fees, they got three public fountains erected under a resolution of the council. It was contended that this work being done on the eve of the election, was bribery.
Held: It may be that in carrying out his public duties, a candidate may be actuated by two motives, one innocent and laudable and the other corrupt; but in judging of his motives, it is always fair to give him the benefit of doubt, unless there is strong evidence justifying the only reasonable inference that corrupt motives alone operated to guide his actions. It would be highly dangerous and subversive of all good civic administration to start with a presumption that all benevolent and public utility acts on the eve of the election were done with a corrupt motive unless the contrary were proved. [Para 9
Under the circumstances, there was no good and sufficient reason to hold that the installation of three public fountains was done with a corrupt motive to make the appellant guilty of corrupt practice. [Para 10
(2) Representation of the People Act, 1951 - S.100 (1) (d) (iv)-some of the provisions contravened-election can be set aside only if prejudice proved-proof of prejudice may be onerous but has to be discharged.
An election of a returned candidate cannot be declared void under section 100 (1) (d) (iv) of the Representation of the People Act, 1951, unless the petitioner affirmatively establishes that the result of the election, in so far as the returned candidate was concerned, had been materially affected by any non-compliance with the provisions of the Constitution or the Representation of the People Act or of any rules or orders made then under. The requirement may be onerous but has to be discharged; and in the instant case there is no good and adequate evidence which could lead the Court to hold that it had been sufficiently discharged, even if it were to be held that the provisions of section 100 (1) (d) (iv) of the Act had been contravened. [Para 26
(3) Representation of the People Act, 1951 - Ss. 21 &; 22 - appointment of Returning Officer and Assistant Returning Officers-may be made by designation and not by name.
There is no reason to limit the power of appointment under sections 21 and 22 of the Act to any particular person.
The appointment or nomination by office is quite valid. [Para 17
(4) Representation of the People Act, 1951 –S.12 (1) -Deputy Collector appointed as Assistant Returning Officer- Deputy Collector appointed as Additional Collector-not directed to perform duties of Collector - remains a Deputy Collector-Land revenue Code, 1959 (M.P.) - S.17.
(5) Land Revenue Code, 1959 (M.P.) - S.17-Deputy Collector appointed as Additional Collector under sub-section (I)-no powers or duties of a Collector conferred by a general or special order-remains a Deputy Collector Representation of the People Act, 1951 - S.22 (1)
A Deputy Collector designated as an Additional Collector under sub-section (I) of section 17 of the M.P. Land Revenue Code, 1959, is a Collector only when exercising any powers or discharging any duties under sub-section (2). Where there is no evidence that such Deputy Collector by a general or special order, was directed to perform any of the functions or duties of a Collector under the Representation of the People Act, 1951, he could not be held to be a Collector but only a Deputy Collector.
Where under section 22 (1) of the Representation of the People Act. 1951, Deputy Collector was appointed Assistant Returning Officer, a Deputy Collector appointed as Additional Collector, could validly function as Assistant Returning Officer, when by a general or special order he was not given the powers of a Collector. [Para 18
(6) Representation of the People Act, 1951 - S.32 – oath or affirmation - may be taken before the date of scrutiny - form of oath need not accompany the nomination form-Constitution of India -Art. 173.
(7) Constitution of India-Art. 173 - oath or affirmation - form need not accompany the nomination paper - oath should be taken before the date of Scrutiny - Representation of the People Act, 1951 - S.32.
The qualification of a candidate to fill a seat has to be enquired into with reference to the date fixed for scrutiny of nominations, and consequently it is on that date that the requirements of Art. 173 as regards the requirement of oath or affirmation must be satisfied. A nomination paper which is unaccompanied with the required oath or affirmation is not invalid nomination. If the oath or affirmation is taken before the date of scrutiny, the nomination is valid. [Paras 23 & 24
( 1 ) THIS is an appeal under Section 116-A of the Representation of the People Act. 1951 (hereinafter called 'the Act') against the order, dated 20-10-1964, of the election Tribunal, Bhind, setting aside the election of the appellant to the Madhya pradesh Legislative Assembly from the Morena Constituency on the around that he and his election agent Sumati Chand Shastri were guilty of the corrupt pratice of bribery within the meaning of Section 123 (1) of the Act.
( 2 ) THE allegation of the respondent (petitioner) was that the appellant, returned candidate and Sumati Chand Shaslri, who were the Chairman of the Standing committee and the President, respectively, of the Municipal Council of Morena City at the relevant time, had by grossly abusing their status and power in the said municipality and without lawful authority, mala fide with the sole aim and purpose of unduly influencing voters to vote in favour of the appellant, laid water lines and opened a few new public fountains within about a week prior to the date of the poll. The appellant admitted that he was the Chairman of the Standing Committee at the relevant time and that his election agent Sumati Chand Shastri was the president of the Municipal Council and that the public fountains in question were opened by them. But is was denied that that was done with a view to influence the voters or with any corrupt motive.
( 3 ) THE Election Tribunal disbelieved the oral evidence of the petitioner's (respondent's) witnesses that the returned candidate and his election agent first demanded votes which were refused by the public and that on their giving promise to instal the fountains and then translating it into action they all promised to give votes It characterized their evidence as false, interested tutored and unnatural which did not inspire any confidence. It however, held that the documents produced by the returned candidate himself and the evidence of his witnesses amply proved that some three public fountains (taps) were opened by the municipal Council during the month of November 1963 and that this exhibition of public charity in the form of opening public fountains to the needy persons cannot be but viewed with the only intention that he had an eye on the votes of those persons whom he had obliged in this way.
( 4 ) THE learned counsel for the appellant contends that the conclusion of the election Tribunal is based on pure surmises and cannot be supported In our opinion, the contention is correct and shall have to be accepted. ( 5 ) IT is settled law that charges of corrupt practices are quasi criminal in character (see Harish Chandra v. Triloki Singh, 1957 SCR 370 at p 394 : ( (S, AIR 1957 SC 444 at p 456)) and must be established by the person setting it up beyond reasonable doubt by evidence which is clear and unambiguous--proof by mere preponderance of probabilities, as in the trial of a civil suit, is not enough (see mohan Singh v Bhanwarlal, AIR 1964 SC 1366 at p. 1370 ). In the instant case, the oral evidence as to the actual bargaining for votes having been disbelieved, the mere fact of the sanction his of three public fountains in localities where they were urgently needed could not lead to any necessary reasonable inference that it must have been done with a corrupt motive.
( 6 ) THE first public fountain complained of was applied for by Karansingh Jatav and others of Gandhipura Ward No. 2 of the Harijan locality of the Morena Municipality by their application, dated 19-11-1968 (Ex. A-44), their application was supported by Abdul Bashir and Manoharlal, who were members of the Municipality and who had endorsed on the application that the public fountain was necessary in the ward in question. On this, the Chief Municipal Officer directed the Incharge superintendent, Waterworks, to take necessary action and accordingly on Rs. 6 being deposited by Karansingh on 27-11-1968 a public fountain (tap) was ordered to be installed in that ward near the house of
