KT. N. RM. THENAPPA CHETTIAR & ORS.

N. S. KR. KARUPPAN CHETTIAR & ORS •

. January 31, 1968

(J. C. SHAH AND V. RAMASWAMI, JJ.] Trust-founded for certain religious purposes with contributions from a nun1her of persons-whether all of them 'follnders' of th~ 1r11It-Ril!ht

of any one interested in proper 111a11age1ne11r of trust 10 file a suit for re- 1noval of managing trustee or for frcmlng a sche1ne of 1nanagment.

The appellants filed a suit praying for the settlement of a scheme in respect of a trust and f\Jr an account of the n1anagement of the trust by C and for certain incidental reliefs.

Their case \Vas that the trust was a joint foundation made on November 12. 1919 by the ancestors of various parties to the suit and the first ·espondent's late father C; that it was founded for conducting certain special and ordinary Pujas 10 the Mutt and for the feeding of the pupils. It was alleged that at the time of the foundation C contributed Rs. 25,000 and four others contributed Rs. 6,250 each and the joint founders had t the time of foundation appointed C, \vho was the 1argest conlributor. as the Manager and executive trustee.

On November 27, 1943 C had nominated the. second respondent. his grandson, as the executive trustee.

Various lleiations of mismanagement of the trust were made against the second respondent claiming tat he had stopped the Pujas and various other activities for which the 1rust wa~ created. The Trial Cotirt disrn-issed the suit on the findin~ that C was the sole founder of the. trust who had conducted it with the monev contributed by himself and other persons and that at the time of the foundation the other four contributors did not reserve for themselves. any right in the trusteeship of the Mutt. lt also held that the charges of mismanagement were ...:nfounded and no case was made out for fr:iming: a scme. An appeal to the High Court was dismissed.

On appeal to this Court.

HELD : (i) The High Court was right in finding the appellants had failed to establish that they were joint founders of the trus• and that thev

\Vere entitled in turns to management in proportion to their contribution.

It is not a correct proposition of law to state tha' every donor contri-

...: buting at the time of foundation of a trust becom-:s a founder of the trust. lt may be that in a particular case all the contributors of a trust fund be~ come the founders of the trust itself, but the question when a contributor would become in law a joint founder of the trust would depend not inere1y upon the fact of his contribution but also upon the s.urrounding circum-

G tances proved in the parliC'Ular case and the subsequent conduct of the

parties. [901 HJ

fo the Matter of the Endowed Schools Act, 1869-and Tn the Malter of the St. Leonard, Shoreditch, Parochial Schools. 10

A.C. 304 and Settikara Venkataran1a ChetJiar v. 0. P. Damodarc1n Chettiar, 51 M.L.J. 457: refc.rred to.

Even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme. for the purpose .of cffc.ctively ca"rrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee. a suit can be brought in a civil court by any person interested for the removal of the trustee and for the

898 SUPREME COURT llEPOllTS

[1968] 2 S.C.R.

proper administration of lhe endowment.

In the present case the appellants being contributors to 1he trust were interested in the proper administration of •he trust and had a sufficient right to bring a suit in ca<; e there w~ mismanagement or breach of trust on. the.part of the managing trus:U and for framing of a scheme. However, m view of the concurrent lindma of both the lower Courls 1hat the llllegaliollll of breach of tru.'1 or management had not been established, no grou.id had been made out on behalf of lhe appellants for framing of a scheme or for the removal of

the second respondent. [904 A.CJ

Pramotha Nath Mu//ick's case. 52 I.A. 245; Manahar Maalerj" "· Peary Mohan, 24 C.W.N. 478; and Bimal Krizhna'r case, 41 C.W.N. 728; ttferred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 355 of 1965.

Appeal by special leave from the judgment and order dated April 4, 1961 of the Madras High Court in Appeal No. 99 of 1957.

N. C. Chatterjee, R. Thiagarajan for R. Ganapathy Iyer, for lhe appellants.

K. Gopa/achari and R. Gopa/akrishnan, for the respondents.

The Judgment of the Court was delivered by

Ramru; wami, J. This appeal is brought on behalf of the plaintilfs, by special leave, against the judgment of the Madras High Court dated April 4, 1961 in Appeal No. 99 of 1957.

In the suit which is the subject-matter of this appeal, the plaintiffs prayed for the settlement of a scheme in respect of a Trust known as Sina Ravanna Mana Pana Sona Guru Puja Mutt at Pillamangalam Alagapuri, Tiruchnapalli District and for dn account of the management of the Trust by the late N. S. Chockalingam Chcttiar and for certain incidental reliefs.

The case of the plaintiffs was that the Trust was a joint foundation made on November I 2, 19 I 9 by Sinnakaruppan Chettiar, father of plaintiffs I and 2 a.nd grand-father of plaintiffs 3, Raman Chettiar, father of plaintiff no. 4, Subramaniam Chettiar Plaintiff no. S, Perianan Chettiar. father of defendant no. 3 and Chockalingam Chettiar, father of defendant no. 1 and grand-father of defendant no. 2. It was said that the Trust was founded for conducting puja to God Vinayagar installed in the Mutt, by an Oduvar; to do !pecial pujas for the Samayarcharyars, vii:;., Appar, Sundarnr, Sambhandar and Manickavachakar and ordinary pujas to the other 63 Nayanmars on their birth days; to conduct a Thevaram PatasaJa, and feeding the pupils.

It was alleged that at the time of the foundation Chockalingam Chettiar contributed Rs. 2S,000/- Sinnakaruppan Chettiar, Raman Chettiar, Subramaniam Chettiar, and Perianan Chettiar contributing Rs. 6,250/- each.

Hundie! were passed by the four contributors for Rs. 6,250 each in favour

THESAPPA v. KARUPPAN (Ramaswami, I.) 899

of the first defendant's father on November 12, 1919 and they were cashed in due course. It was alleged that the joint founders had at the time of foundation appointed Chokalingam Chettiar who was the largest contributor as the manager and executive Trustee and the latter had constructed buildings for the Mutt and bought lands in Manakkarai village, Mannargudi taluk. . On November 27, 1943, Chockalingam Chettiar nominated defendant no., 2, his grand-son as the executive Trustee. It was alleged by the plaintiffs that defendant no. 2 had stopped the pujas to the Nayanmars and Samayacharyas and had discontinued the Thevararn school and the feeding of the boys. Several other acts of mis-management were alleged in the plaint.

The suit was mainly contested by the second defendant who alleged that the sole founder of the Mutt was the late N. S. Chockalingarn Chettiar, his grandfather, who at first installed the Vinayakar image and also the 63 Nayanmars and established the pujas for the four Samayacharyars and the Nayanmars, He was also the sole trustee and was in exclusive management from the foundation of the trust till November 29, 1943 when by a registered instrument he appointed the second ?ef.endant and hi~ escendant~ s heredit111'. trustees.

It was denied that the plamuffs were 1omt-founders. though they had made contributions .{Qr the management of the Mutt.

It was said that from the very"date of contribution the plaintiffs never bargained for any rights as trustees but they accepted N. S. Chockalingam Chettiar as the sole trustee.

The charge of mis-management was totally denied by the defendants and it was said that the trust was being maintained and conducted on a much grander scale than during the trusteeship of the senior Chockalingam.

It was asserted that the daily puja to the Vinayakar and the ordinary and special pujas to the Nayanmars and the Samayacharyars were all performed with scrupulous re~.ula- F rity.

The suit was dismissed by the Subordinate Judge of Pudu-, klmtai by his judgment dated January 31, 1957. The finding of the Subordinate Judge was that the sole founder of the trust was the senior Chockalingam Chettiar who conducted it with the aid gf moneys contributed by himself and other persons and th:; ii at the time of the foundation the other four contributos did not

re!Crve for themselves any right in the trusteeship of the Mutt.

It was also found by the Subordinate Judge that the charges of mis-management were unfounded and no case was made 'out on behalf of the plaintiffs for framing a scheme. The judgment of the Subordinate Judge was affirmed by the High Court in Appeal No. 99 of 1957 by its judgment dated April 4, 1961. The High Court substantially agreed with the finding of the Subordinate Judge. It was held by the High Court that the eVidence made it quite clear that the contributors agreed to leave the management of the trust solely in-charge of the senior Chocka!ingarn.

The High Court also agreed with the Subordinate Judge that the

SUPREME COURT REPORTS fl 968] 2 s.c.R.

plaintiffs had failed to establish that all the contributories were joint founders and that they were entitled to turns of management in proportion of their contributions.

The only matter on which the High Court expressed its disagreement with the Subordinate. Judge was with regard to the date of the foundation of the trust. The High Court expressed the .view that the trust was founded in 1919 but the Subordinate Judge found that the trust had been founded much earlier, though it took a definite shape in the year 1919.

As regards the charge of mis-management, the High Court agreed with the Subordinate Judge and held that non.: of the charges had been established and accordingly there were no grounds made out for the framing of a scheme or the

removal of the second defendant from the management of the trust.

The first q11esuon to be considered in this appeal is whether the appellants are right in their contention that they were joint founders of the trust along with the senior Chockalingam. It was contended on their behalf that Exs. A-1 and A-3 described the contributions of the sum of Rs. 6,250/- as having been made towards I/8th 'Pangu' or share.

Reference was also made to Ex. A-5, ledger account of the Mutt in which the contribution is

descrid as the share capital.

It was pointed out by Mr. N. C.

Chatterjee thafthe vilasam of the trust S.R.M.P.A.S. supports the claim of the appellants that they were joint founders. The High Court has, however, rightly pointed out that these two circumstances are not decisive. There is on the contrary an admission on behalf of the first plaintiff that the contributories were not treated as founders.

In the course of his evidence the 5th plaintiff as P.W. I stated as follows :

"As Chockalingam Chettiar he!d the largest number of shares the other four requested him to administer the suit trust maintain accounts and render accounts to the four other shares on demand ............ AU the five pangudars were present when the decisions to found the charity was arrived at.

We decided that senior Chockalingam should manage the charity to be founded.

None of us demanded that the pangudars should administer the trust by rotation. None of us suggested that the te•ms of the endowment should be reduced to writing.

We wanted senior Chockalingam to consult us with reference to important matters pertaining to the administratfon.

We did not define the nature of the matters with reference to which we should be consulted.

THENAPPA V. KARUPPAN (Ramaswami, l.) ./ ./ Since the inception of the trust no meeting of the five pangudars was ever held.

Nor were minutes of such proceedings kept. Chockalingam used to have informal consultations with us. At no time, between 1919 and 1945, the year. of senior Chockalingam's death did we ever call upon him to show us his accounts. Nor did he show us his accounts. We never asked him to what the total income from the lands and buildings was.

I do not remember the particulars of information which senior Chockalingam voluntarily gave us."

90!

The conduct of the parties subsequent to the foundation of the trust is also not consistent with the claim now' putJorward on behalf of the appe!lants. Senior Chockalingam:,, acquired considerable properties between 1919 and 1945 on behalf of the trust. Exhibit B-2, dated June 23, 1920, Ex, B-3; dated January 27, l927, Ex. B-5, dated June 18, 1931,_.Ex<. B;6:datecl June 22, 1931.

Ex. B-7 dated January 4, 1934, Ex, B-8 dated March 2, 1934.

Ex. B-9 dated September 30 1934, Ex.

B-10 dated September 30, 1934, Ex. B-11 dated June 6, 1936 and Ex. B-12 dated April 5, 1937 are all sale deeds solely in the name of the senior Chockalingam. The mutt bui)ding had always stood in the name of the senior ChockaJingam in the register of Alagapuri Panchayat Union.

The oral evidence adduced on behalf of the respondents which has been accepted both by the Subordinate Judge and by the High Court also shows that there was a total non-interference on the part of the plaintiffs in the management of Chockalingam till he app:iinted the second defendant as his succeeding trustee under Ex. B-1 and there was a total non-interference also with the management of the second defendant after that date.

P.W. 1 alS<> admitted in his evidence that the second defendant was appointed as the successor of senior Chockalingam and at the time of the appointment all the plaintiffs and defendant no. 3 agreed that defendant no. 2 should be so appointed as the sole managing trustee. If the plaintiffs had any right to manage the trust by turns, as they now claim. it is not likely that they would have agreed to the second defendant being appointed as the sole trustee in place of senior Chockalingam.

In our opinion, the High Court was right in reaching the finding that the p'aintiffs have failed to establish that they were the joint founders of the trust or that they were entitled in turns to management in proportion to their contributions.

It is not a correct proposition of law to state that every dono~ contributing at the time of foundation of a trust becomes a founder of the trust. It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself, but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his

902 SUPREME COUllT REPORTS (1968] 2 s.c.R.

contribution "ut also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the parties.

Jn In the Matter of the Endowed Schools Act, 1869-and In the

Matter of the St. Leonard, Shoreditch, Parochial Schools(') it was held by the House of Lords that where a charity is established b~ subscriptions the original subscribers alone are the founders, and the later benefactions are on the footing of the original foundation.

At page 308 of the Report Earl of Selbome, L.C. stated :

"Now let us consider what is the reasonable manner of applying to such a charity the word 'founder'.

It is reasonably clear that not every subscriber or contributor could be a founder having control over the school, or capable within the meaning of the Act of Parliament of impressing on it, by his own act or by his own authority a denominational character.

It i> also reasonably plain, when you have once started with a foundation in 1705, though by smail beginnings, yet that everything afterwards added, every accretion to the original subscriptions, which was not an endowment for any new and special purpose, must be taken to be upon the footinl! of the original foundation; not a new foundation, but something contributed for the purpose of the original foi:odation .............. Now it is quite cot\ceivable that a number of per; ons mi?ht have met at that time, and miht have come tQ a comm'JO agreement as to the purposes for which they should subscribe and solicit subscriptions; a'ld if th1~ had been embodied in writin!!, and if th"y had solicited subsc, iptions on the footing that either they themselves were to make a law for the char:ty and giv~ it sa•uts. or that this was to be done by ohrs in a particular manner, or if in any original documents soliciti.n, f sub- Jcriptions there had been a written law laid ., t}6wn for the charity expressing the purposes for which it was to be founded, those persons so initiating .tlfe subscriptions, and so declaring the purpose for which they were made and solicited, might be regarded as founders within the meaning of this clause.., But it appars to their Lordships to be q11ite impossible to attribute that d1aracter to those who come after them-whthcr they contributed to the building fund Or any other fund in aid ..:if the existin!! charity or notJ They did not found the

harity; they found it existing; they merely aided and .assisted it."

(I)" l" :t..C. 3114.

In Sattikara Venkatarama Chettiar v. 0. P. Damodaram Chettiar(') there was a deed of trust executed by V in favour of 19 persons known as Chettithanakaras which stated that he a.lone was unable to make and set up idols of Ramalingam and Choudeswari Amman in the Choudeswari Amman Temple Devasthanam built by him and that the nineteen persons agreed to raise a fund and to put up the idol in the temple anj according to the aeei; n.ent that they set up the idols of Rama, ingam and Choudeswljff Animan and they agreed to purchase property for endowing the temple. and the document then went on to state "that the nineteen prsons should manage the temple from generation to gi; neration."1 /Funds were coliected by V and by the ninete€'n persons mentioned in. the document; they built the. temple installed the idols in it, and collected funds for the upkeep of. the temple and managed the temple under the deed of trust.

It was held by the Madras High Court that the deed of trust conferred the hereditary right to the trµsteeship upon V and tile nineteen Chettithankars. -At page 461 of the Report the High Court stated as follows :

"If persons invite subscriptions on a representation that they would devote the subscriptions so , collected to a particular purpose and they divert the subscriptions to some other purpose the subscribers have tsf object to the funds being diverted to other purposes/than those for which they were collected.

But so loefg as the subscribers do not object to the person or P, ersons collecting subscriptions for building or endowing any particular institution, the person or persons so building or and endowing it have the right to provide for its management for all time to come.

There is nothing in the evidence to show that the persons wo/gae subscriptions gave them on the understanding that the founders should not have the hereditary right . of management.

All that appears from Ex. A is, that subscriptions were collected, funds were raised, a temple was built and idols were installed and the management was in the hands of Venkatarama Chetti and others and all of them."

As we. have already stated, the appellants have failed to prove that all the contribuwrjes were the joint founders of the trust and that they" were all in turns entitled to management in proportion to the amounts that they had contributed. On the other hand, the evidence makes in11,1i te cleat that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam/ and subsequently of defendant no. 2.

We are acocrdingly of the opinion that Mr. N. C. Chatterjee has been lll)able tomake good his argument on this aspect of the case.

(1) 51 M.~.J. 547.

904 SUPREME o6URT REPORTS

We proceed to coos~ the next question aris; ng in this appcaJ, viz., whether the p!ori'ntifij are entitled to ask for the settlement of a scheme even on tlie aumption that they were not co-founders of the trust. .The parties in this case have proceeded on the footing that the' trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment.-( See, for example, Pramatha Nath. Mullick's case(') and Manohar Mookerjee v. Peary Mohan('), There are also authorities to the effect that a Civil Court may frame a scheme in !he case of a private endowment at the ins•ance of the parties interested.

The question has been discussed by the Ca!cu; ta High Court in Bi ma/ Krishna's case(8 ) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court.

Mookerjce. J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for managemept framed for the administration of the private trust.

In Pramatha Nath Mu/lick's(') case to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial court for that purpost..

Io the present case the appellants being contributors to the trust are interested in the proper administration of the trust and, in out opinion, they h'ave a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and fer framing of a scheme.

But the question in the present appeal is whether the appellants have made out any grounc!S, for framing of a scheme or for the removal of the second defe.ndant from the management of the trust.

It was alleged by the apJ>, C!}lants in .the plaints that the trust had G been mismanaged by the, enior Chockalingam and by his grandson, 2nd defendant and; botb have been guilty of breach of trust.

The main char¥e Jeveljed against defendant no. 2 was the nonperformance of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils. The Subordinate Judge ha~ examined the evidence dealing with the charge and found that it H

(I) 52 IA 245.

(2) 24 C.W.N. 478.

(3) 41 C.W.N. 72 .

was not established. The High Court, upon a11alysis of the evidence, has reached the same conclusion. It was also alleged by the appellants that Account Books/ Exs. A-9 and A-10 have been fabricated by defendant. no. 2 but the Subordinate Judge and. the High Court both held that the allegation was not true.

Certain other charges were also levelled by the plaintiffs against defendant no. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated The question whether defendant no. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is' a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant no. 2 from the office of the managing trustee.

It follows that the suit brought by the appellants has been rightly dismissed.

For these reasons we hold that the judgment of the High Court dated April 4, 1961 in Appeal No. 99 of 1957 is correct and this appeal must be dismissed with costs.

R.K.P:s.

Appeal dismissed .

L3Sup.C. l./68-l 6-l-69-2,500-GIPF.

KT. N. RM. THENAPPA CHETTIAR & ORS

N. S. KR. KARUPPAN CHETTIAR & ORS

C. SHAH

V. RAMASWAMI, JJ.

November 12. 1919

November 27, 1943

Pramotha Nath Mu//ick

Manahar Maalerj

Peary Mohan

Bimal Krizhna'r

CIVIL APPELLATE JURISDICTION

N. C. Chatterjee

R. Thiagarajan

R. Ganapathy Iyer

K. Gopa

R. Gopa

Ramru

wami

Pillamangalam Alagapuri

Tiruchnapalli District

N. S. Chockalingam Chcttiar

November I 2, 19 I 9

Sinnakaruppan Chettiar

Raman Chettiar

Subramaniam Chettiar

Perianan Chettiar

Chockalingam Chettiar

Appar

Sundarnr

Sambhandar

Manickavachakar

Chockalingam Chettiar

Raman Chettiar

Subramaniam Chettiar

Perianan Chettiar

November 12, 1919

Chokalingam Chettiar

Manakkarai village

Mannargudi taluk

N. S. Chockalingarn Chettiar

November 29, 1943

N. S. Chockalingam Chettiar

Chockalingam

Nayanmars

Subordinate Judge of Pudu-, klmtai

January 31, 1957

April 4, 1961

Chocka!ingarn

SUPREME COURT REPORTS fl 968] 2 s.c.

N. C.

Chatterjee

September 30, 1934

June 6, 1936

April 5, 1937

ChockaJingam

Alagapuri Panchayat Union

Earl of Selbome

Ramalingam

Choudeswari Amman

Rama

Choudeswljff Animan

Madras High Court

Venkatarama Chetti

Pramatha Nath. Mullick

Bi ma/ Krishna

Mookerjce

India

Pramatha Nath Mu


GHASIRAM v.

DAL SINGH & OTHERS

February 7, 1968

[M. HIDAYATULLAH AND K. S. Hl!GDE, JJ.)

Representation of the People Act. 1951, s. 123(1), (2) .le (1)-Elecftd candidate being Minister b'!fore election using discretionary funds to remove publiC grlvances-1/ co"upt practice.-Spending fu.nt/S for general prtblicgood only jus, before election-Evil practice. -

The first respondent was elected to the Haryana State Legislative Assem- My at the election held on February 19, 1967. The appellant challenged his election by an election pef..ition on the grounds, inter alia, that prior to his election, the respondent, who was a Minister in the State Government and had available to him certain discretionary funds, had used theae funds to bribe the v"..ecs; it was alleged that prior to the election he had visited several villages in his constituency and the voters had told l>.im that they would not vote for him as he had done nothin~ for their uplift: he had therefore ma~ various discretionary grants to Oram Pan .. chayats. given funds for the construction of a sacred tank in one village. for building public utility works, community centres and for repairs of Harijan well in different villages. It was also alleged that he had used liis position as Minister 1to favour some of the villagers by providing certain irrigation facilities in some villages with a view to securing support for his candidature. The High Court dismissed the election petition.

On appeal to this Court.

HELD : On the evidence before it, the High Court had rightly di!!· n1issed t'he petition.

The law requires that a corrupt practice involving bribery must be fully stablished. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. The position of a Minister is difficult. It io; obvious that he cannot cease to function when his election is due.

He must of necessity attend to the grievances. otherwise he must fail. Hr n1ust imorove the image' of his administration before the public. If everv one of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out of them, the administration must necc.ssarily come to a stand-still. [109 F-G] In the present case the money was not distributed among the voters directly but was given to Panchayats and the public at large.

It was t.o be used for th" good of those for and those against the cannidate.

No doubt this had the effect of pushing forward the respondent's claims but that was inevitable even if no money was spent but good administra~ tion changed the people's condition. It could not therefore be held that there was any corrupt p'ractice.

If there was good evidence that the Minister bargained directly or indirectly for votes. he result might have been different, but there was no such evidence. [110 B..C]

Case Jaw referred to.

Obiter Election is something which must be conducted fairly. Tc arrange t._~ SRend money on the eve of elections in different constituencies~

GHASI RAM v. DAL SlNGH (Hidayatullah, /.)

I 03

:.ilthough for general public good is, when all is said, and do'ne, an evil practice, even if it may not be corrupt practice. The dividing line bet- "''een an evil practice an.cl a corrupt practice .is a very thin one. It should

te understood r.hat energy to do public good should be used not on. the eve of elections but much earlier and that even slight evidence might change this evil. practice into corrupt practice.

Payments from discretionary grants on the eve of elections sho11ld be avoided. [110 D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16~2 of 1967.

Appeal under s. 116-A of the Representation of the Peoples Act, 1951 from the judgment and order dated September 12, 1967 of the Punjab and Haryana High Court in Election Petition No. 24 of 1967.

Naunit Lal and B. P. Singh, for the appellant.

G. N. Dikshit and R. N. Dikshit, for respondent No. 1.

The Judgment of the Court was delivered by Hidayatullah, J. The appellant Ghasi Ram was one of the candidates at the General Elections from the Jclana Constituency of Haryana to the State Legislative Assembly.

The respondents were other candidates. The election took place on February 19, 1967 and the results were declared two days later.

The first respondent was declared elected having secured 9,000 and oJd more votes than the appellant. The present appeal has been filed by the appellant against the judgment of the High Court of Punjab and Haryana at Chandigarh, September 12, 1967, by which the election petition was ordered to be dismissed. The petition was based on certain corrupt practices of the answering respondent who was a Minister for Irrigation & Power in the Ministry of Shri Bhagwat Dayal Sharma till the result of the election. He was charged with having used his position as Minister in various ways to further his own election. The High Court on an examination of the evidence came to the conclusion that no corrupt practice \\'.as, in fact, proved against him and the election could not be said to be void. Since the filing of the election petition the Haryana Assembly has been dissolved, but as allegations of corrupt practice were raised in the petition the appeal bas been pressed before us. After hearing learned counsel in the appeal we have reached the same conclusion as the High Court and we find the appeal to be unsubstantial.

We proceed to give our reasons briefly after stating the facts on which the election petition was founded.

The corrupt practices charged against the answering respondent can be divided under three heads. . The first is that he used certain discretionery funds to bribe the voters. The second is that he used his position to favour some Of the villages whit a view to securing support for his candidature, and the last is that he exer-

SUPREME COURT REPORTS

[1968] 3 S.C.R.

cised undue pressure upon two Patwaris to work for him; when cthey declined, he ordered their suspension.

We shall deal with these allegations in the same order.

After the new State of Haryana was constituted on Novem ber I, 1966, the Government of Haryana placed at t]Je disposal of the Cabinet Ministers, Ministers of State and the Deputy Ministers certain sums of money for distribution at their discretion. This was by a Resolution of the Government in November, 1966 (Ex . . RW 14/1 ). This position is admitted. Since the answering respondent was a Minister, a sum of Rs. 50,000 was placed in his discretionary grant. From this sum the answering respondent made his discretionary grants and a sum of Rs. 12,500 in the aggregate was paid by him for various purposes in his constituency.

The allegation is that he macje this distribution as a bargain for votes in several villages and this amounted to corrupt practice.

The amount was cjistributed by him between December 8, 1966 and January 9, 1967. In most cases the money was paid after the poll but as promises were apparently made this makes no difference w the allegation of corrupt practice. Section 123 lays down what .are to be regarded as corrupl practices and it inter alia provides :

"123 .. Corrupt practices.-The following shall be deemed to be corrupt practices for the PU!'!'Oses of this Act:-

( 1) Bribery, that is to say,-

( A) any gift, offer or promise by a candidate . . . . of any gratification, to any person whomso- ever,. with the object, directly or indireclly of ind.ucing-

( a)

(b) an elector to vote or refrain from voting at gn

election . . .. . . . .

(2) Undue intiuence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate . . . . . . . with the free exercise of any electoral right

(7) The obtaining or pr<>curing or abetting or tempting to obtain or procure by a candidate . . . . . any assistance (other than the giving vote) for the furtherance of the ·prospects of that candidate's eletion,

GIL\SI RAM v. DAL SINGH (Hidayatullah, J,) 105

from any person in the service of the Government and belonging to any of the following classes, namely :-

(f) revenue officers other than village revenue officers known as lamardars, m.alguzars, patels, deshmukbs or by aJJ'f other name, whose duty to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and

A proini5e of a gift or offer is equally a corrupt practice but the dft, offer or premise must be made to an elector to vote or refrain from voting at an election; and, similarly, undue influence and obtaining or procuring of the service of apy person in the service D of the Government must be with the same intention. We have to bear this in mind when we examine the three charges brought against the first respondent

Under the first head of charges it is stated that he promised a payment of Rs. 20,000 to the Grampanchayat, J; gra; Rs. 5,000 on February 13, 1967 for a sacred tank ip village Ram Rai; E Rs. 1,000 on January 9, 1967 to the Grampanchayat, Bahmanwas; Rs. 2,500 in December, 1966 to the Grampanchayat, Bibipur and Rs. 500 each on January 9, 1967 for public utility works to the Grampanchayat, Ram Rai, Dhanak Community Centre at Lajwana ,.(alan, the. Balmiki Harijan Community Centre at village Mehrra and Rs. 500 for the repair of a Harijan well at Lajwana Khurd.

F It is said that before these grants were made. the Minister visited these several villages and the voters told him that they were not going to vote for him as he had done nothing for their uplift and on his promising the said sums the voters were won over with the result that the answering respondent secured the bulk of the votes from these villages. The High Court carefully 'considered the G evidence led to prove these allegations and came to the conclusion that it fell short of the requirements of s. 123 of the Act It is contended before us that the High Court was in error in reaching this conclusion both in fact and law. We shall first dispose of the facts before proceeding to examine what we consider to be corrupt practice in this context

H The donation to the Grampanchayat, lgra is attempted to be proved through the evidence of one Mehtab Sin$11 (P.W. 10).

He stated that the answering respondent, as Chairman of Block Samiti had promised Rs. 5,000 but had not paid it. When be came U Sup. CI/68-8

106 SUPREME COURT REPOll.Ta [1968] 3 s.C.ll..

for canvassing, the voters were unwilling to vote for him becall8e A he had not kept his rromise. He then persuaded them and prom!sed. to pay sme money .if they s.ave him. their .support. The High Court pomted out that this witness was a discharged Sub, Inspector .and the polling agent of the election petjtioner. He was foun<) to be telling lies when he said that the amount was received 7 days after the promise, becaUSe the record clearly showed that B this money was paid only in March, 1967, more than a month after the poll. Lakhi Ram (P .W. 5) admitted that there was a village schoql which was lying incomplete and money was needed for its completion.

It will be noticed, that this money was not paid directly to any voter or voters. It was handed over to the Grampanchayat for utilization. This meant that it would have gone to C the benefit of those who were going to support the answering respondent and also those who were opposed to him.

Tbe High Cou, t di4 not believe the evidence that there was any batgain for votes as requirt'.d by the definition of corrupt practice. On Ii reading of the l:vidence we are satisfied that the village CO!lllllunity

asked him for help and the answering respondent promised to help them to complete works of public utility. The amOllllt was paid D after the election was over.

Similarly, the sum of Rs. 5,000 said to have been paid to Grampanchayat, Ram Rai ls proved through the evidence of Devi Dayal (P.W. 11) and Mangal Singh (P.W. 12). This money was sanctioned on December 8, 196~ even before the Congress had E given ticket to the answering respondent. The evidence here also does not show that there was any bargain for votes. The two witnesses were proved to be hostile to the answering respondent.

Devi Dayal was his rival candidate in 1952 and had made sevel'l'~

applications against the answering respondent. The application for the Congress ticket was .made by the answering respondent on F December 6, 1966 and the grant being made on Decetttber 8, 1966 the evidence of Devi Dayal that the grant was after the nomination was definitely false. Man gal Singh is the editor of a weekly journal, which published several complaints against the answering respondent. The answering respondent stated that he had collected Rs. 25,000 for the sacred talik even before he became Minister; that through his efforts a pucca road, a dispensary, a veterinary G hO!'pital, a post office and water works were established. He had also got a primary school upgraded. Ram Rai being his native village be was interested in the work of the Panchayat and as there was water shortage he gave the village Panchayat this amount to help them to improve the sacred tank. The High Court did not find any evidence which would bring the matter withins. 123. It H declined to believe tese hostile witnesses and on a comideration of the evidence we are not satisfied that the conclusion was erroneous.

GBASI RAK v. DAL SNGH (Hidayatullah, /.)

I 07

A The sum of Rs. 1,000 was paid to the Grampanchayat, Bah manwas for a primary school. This was a month or a month and quarter before the election. This was sought to be proved through Ram Dutt (P.W. 20). It is in evidence that Ram Dutt was very friendly with the election petitioner and even gave his truck for the use of the petitioner. Evidence further shows that the school B building was without a roof for. some time and the children used to sit under trees.

We are satisfied that this amount cannot be described as a bribe.

There was no evidence to prove the payment of Rs. 2,500 to "Bibipur and as none was brought to our notipe this point wa5 C .rightly decided against the eleetion .petitioner.

The four sums of Rs. 500 each were paid for improvement of Community Centres. The attempt to prove that they were a part of a bargain was discountenanced by the High Court. In respect of the amount paid to Lajwana Kalan the evidence was that . of Ram Singh (P.W. 13), the polling agent of the election petitioner, Shri Phula (P.W .14), whose demeanour was commented upon D by the learned Judge, and one of the candidates Mangeram (P.W.

19) and Jailal (P.W. 21), a helper of one other candidate. Their evidence was found to be unsatisfactory either because of the interest in themselves or in other candidates or because of internal discrepancies and defects. We have read the evidence and we see no reason to differ. In support of the other tWo payments of E Rs. 500 each, the only objection raised before us was that the payments were made to the Dhanak and the Balmiki Communities with a view to obtaining their votes because, it was contended, that there was no community centre at these villages. Evidence, however shows that , there are Paras at these villages, where the Harijan Community ineets. In fact, in the petition, and the evid- F ence these are referrCd to as Community Centres. This action of the ; answering respondent was not found to amount to a corrupt pra, ctice and on a consideration of the evidence we are in agreeme!J.t with the High Court.

The next group of corrupt practices are said to involVe certiiin facilities provided in the matter of irrigation. For example, the G Distributory No. 8 at Jind was widened to give more 'water to Ramrai village, a footbridge over the Sunder Branch of Western Jumna canal for Nandgarh village, two outlets were promised from Distributory No, 2 for village Radhana, the size of the outlet of the .Sunder Br.anch was increased, a new Rajbaha or minor was opened to benefit village Dingaria and the Jind Distributories were u generally modified. None of these was accepted by the IDgh Conrt as eVidence of corrupt practice with a view to procuring the votes.

It seems that it was conceded in the IDgh Court itself that these orders were made by the first respondent in the ordinary course of

IOS SUPREME COURT lU!POITS

his duties as Minister for Irrigation.· There was nothing to. show that the first respondent went out of his way to do this. The point was, therefore, rightly decided against the appellant.

Mr. Naunit Lal argued vehemently that any gift which has the effect of changing the minds of the voters is a corrupt practice.

He read out to us the judgments of Riilley and Bucknill, JJ. from 8 the Borough of Kingston-upon-Hull(') case. In that case the charge against Sir Henry Seymour King was that he had distributed coals and given boxes of sweets to die children of the schools at the time or just before his election.

The motive of Sir Hemy Seymour King was never in doubt. The gifts were made to celebrate the twenty-fifth anniversary of his membership of the Central Division of Hull. After examin, ng the cases on the subject of gifts such as the Windsor(') case the Salisbury(•) case, the Wigan(') case, etc. the learned Judges avoided the election. In that case the presents were gratitious and not in furtherance of any dlily

which Sir Henry Seymour King owed in any other capacity. In

our courts this question has come up in ererit forms before and a word may be said about the cases. In S. Mahar Singh v.

Umrao Singh("), the Punjab High COurt held that a candidate ipaking a promise to get the grievances of certain refugees as a body remedied and even getting the Revenue Minister to reinforce his promise was not corrupt practice. It was pointed out that the proll!ise was l).Ot made to any particular voter or voters but to the general body of residents without distinguishing between those who ':Vere favourably inclined. and th060 not. The gist of the corrupt pracitce, theref9re, lay in attempting to do . something for those opposed to the candidate with a view to changing their votes; and as a bargain for votes. A case in point is1Maganlal Bagdl v. Hari Vishnu Kamath(') in which the .candidat¢ offered to construct a well in a village if the voters voted for him and not for the rival candidate. Money was actually deposited .for this purpose and P was. to await the result. of the election. . Here there was a clear bargain for votes. As observed by this 'Court. in Khader S1'eritJ

v. Munnunvami Gounder and Ors.('} it may be meritorious to make a .donation for a charitable pUipOse but on the eve of an election, such a gift may be open to construction that it was made with the intention of buying votes. As held in the Wigan(') case "charity at the election time ought to be kept by the politicians irr the background." But when a question does arise, corrupt

practice Which is a char~ quasi-criminal in nature. must be proved like any other fact. The gift must be proved to have a direct or indirect connection with votes. The gift must admit of no other -.--·

(I) 6 O'M .t. H 372.

(2) 2'l O'M .t. 'II 88.

(3) 40'M .t. H 28.

(4) 40'M &H 13. (S) A. l.R.. 1961 Punjab 244.

 (7) A.JeR, 1955 S.C. 775.

(6) IS E.L.R. 205.

GHASI RAM v. DAL mNGH (Hidayatullflh, /.) 109

reasonable excuse. In Khader Sheriff's(') case the payment of RS. 500 to the District Congress Colilillittee was not held to be a charitable donation but expenditure incurred for furthering the prospects of the candidate. Omission to show it as expenses. was regarded as corrupt practice. In Radha Krishna Shukla v. Tara Chand Maheshwar(') general promises by Ministers to redress certain public grievances or to erect certain public amenities like hospitals, if elected were held not to amount to corrupt practice.

They were treated as promises of general public action. In Gangadhar Maithani v. Narendra Singh Bhandari(') promises of public action were held excluded from corrupt 'practice. Therefore a. prQtllise by a candidate that if he was elected he would see that expendjtme on development plans was incurred in his constitµency was held pefmissible. In Ba/want Ral Tayal v. Bishan Saroop('), a promise to the Harijans of a locality by a candidate when he was

Cl\PVassing. for votes, that he w.ould do his , best to help them in the matter. of retaining an old mosque as a temple and for getting land for building houses was not held to amount to corrupt practice.

These cases which were cited before us are slightly different. But they point in the same direction. In Amircluind v. Surendra Lal Iha(') it was laid down that if a Minister redresses the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it is not corrupt practice unless he obtains promises from the voters in return, as a condition for .their help. In Anjaneya Reddy v, Gangi Reddy and others(•).

It was held that the proof required to establish a corrupt practice must be almost of the character required .to establish a criminal charge.

In our opinion the law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. The position of a Minister is difficult. It is obvious that he cannot cease to function when his election is due. He must of necessity atteod to the gyievances, otherwise he must fail. He must improve the

imae of his administration before the public. If everyone of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a stand-still.

The State of Haryana came into existence on November 1, 1966. With an election in the near future, the political party had to do acts of a public nature. The grant of discre?onary grants were part of the general scheme to better community development projects and to remove the imme-

(I) A.LR. 1955 S.C. 11S.

(3) 18 E.L.R. 124.

(S) 10 E .. L.R. S1.

(2) 12 E.I.R. 376.

(4) 17 E.I.R. IOI

(6) 21 B.I.R. 247~

110 SUPlUlME COURT lUlPOllTS (1968] 3 S.c.ll,

diate grievances of the public. The money was required to be A spent in about 3 months' time.

The action of the Minister had often the concurrence and recommendation of his subordinate staff.

It is for this reason that the orders about the improvement of the supply of waters were not pressed. . They were incapable of being construed against the first respondent. Therefore, emphasis was placed upon the distribution of money.

The money B was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushing forward his claims but 'that was inevitable even if no money was spent, but good administration changed the peopl.e's condition. We 9annot, therefore, hold that there was any c corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different but there was no such evidence.

. Although we have held in this case that the action of the first respondent cannot be characterised as not innocent, we are constrained to say that the attitude of Government is far from laudable.

D Election is something which must be conducted fairly. To arrange to spend money on the eve of elections in different constituencies although for general public gciod, is when all is said and done an evil practice, even. if it may not be corrupt practice. The dividing line between an evil practice and a corrupt practice is a very thin one. It should be understood that energy to do public good E should be used not on the eve of elections but much earlier and that even slight evidence might change this evil practices into corrupt practice. Payments from discretionary grants on the eve of elections should be avoided. ·

. As regards the last point we are satisfied that the conclusion of the High Court is correct. The evidence about influencing the f Patwaris is most unsatisfactory. We do not think it necessary to discuss the evidence over again.

In the result the appeal fails and will be dismissed.

There shall be no order about costs.

R.K.P.S.

A.flpeal dismissed.

GHASIRAM

DAL SINGH & OTHERS

M. HIDAYATULLAH

Representation of the People Act

s. 123(1)

Oram Pan

Harijan

s. 116

Representation of the Peoples Act, 1951

Naunit Lal

B. P. Singh

G. N. Dikshit

R. N. Dikshit

Hidayatullah

Ghasi Ram

February 19, 1967

September 12, 1967

Bhagwat Dayal Sharma

Haryana

Novem ber I, 1966

Government of Haryana

December 8, 1966

January 9, 1967

Section 123

Ram Rai

Bibipur

Lajwana

Mehrra

Lajwana Khurd

s. 123

Mehtab Sin$11

SUPREME COURT REPOll.Ta [1968] 3 s.C.ll

Lakhi Ram

Ram Rai

Devi Dayal

Mangal Singh

December 8, 196~

Devi Dayal

Decetttber 8, 1966

Devi Dayal

Man gal Singh

Ram Dutt

Bibipur

Lajwana Kalan

Ram Singh

Phula

Mangeram

Jailal

Ramrai village

Nandgarh village

Radhana

Dingaria

IOS SUPREME COURT

Naunit Lal

Riilley

Bucknill

Henry Seymour King

Hemy Seymour King

Hull

Punjab High COurt

District Congress Colilillittee

State of Haryana

November 1, 1966

A.flpeal


01\t: PRABHA JAIN

ABNASH CHAND & ANR.

February 1, 1968

[M. HIDAYATULLAH AND R. S. BACHAWAT, JI.)

Election-Minister makiv discretionary grant-When amounts to corrupt practice.

The State of Haryaoa came nto existence on 1st November 1966.

The Cabinet placed certain sums of money at the disposal of the ministeis, one of whom was the appellant to be used at their discretion for purposes of public utility, for the benefit Of the general public and for the uplift of backward communities. The money had to be disbursed before 31st March 1967 through Pancbayat, Municipal or Government agencies. The appellant sanctioned cetlain payments for building twO dharnwshakls in two wards of a Municipality. Long after the sanction, her candidature for election to the Vidban Sabha of the State was recognised by her party and she stood for election from a constituency which included these two wards. She was elected, and some time later, the money was made available to the wards though the recipients were writing that the money should be made available at once. The first respondent challenged the election alleging corrupt practices and later amend,. ed the petition giving better particulars.

The pleasin the petition COD tradicted each. other, the evidence tendered at the trial of the petition contradicted the pleas, and the witnesses were found to be thoroughly unreliable. In spite of this the petition was allowed on the ground that the

circumstances showed that the sums were in fact paid to bargain for votes and to influence the voters in favour of the appellant.

In ·appeal to this Court,

HELD : The action Of the appellant could not be construed against her.

It was done in the ordinah' course of her duties as Minister and there was no evidence that it was, directly or indirectly, part of a bargain

with the voters. No hurry to make the money available to the recipients emanated from the appellant. It was only the persons who were to benefit by the discretionary grant that were anxious t.o lay hands on the money, as soon as possible, so that the grant might not be. cancelJed later by a change of attitude caused by the election going against tb.e particular party, [117 H; 118 A-C] . ·

Ghasi Ram v. Dal Singh & Ors. f1968] 3 S.C.R. 102 followed.

Bhagwan Dutta Shastri v. Ram Ratanji Gupta, A.I.R. 1960 S.C. 200 and Kandaswami v. Adiryan, 19 E.L.R. 260, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1862 of 1967.

Appeal under s. 116-A of the Representation of the People Act 1951 from the judgment and order dated November 16, 1967 of the Punjab and Haryana High Court in Election Petition No. 19 of 1967.

SUPREME COURT REPORTS [1968] 3 s.c.R.

A. K. Sen, B. Dutta, P. C. Bhartari, M. L. Aggarwal and A J. B. Dadachanji, for the appellant.

S. K. Mehta and K. L. Mehta, for respondent No. 1.

The Judgment of the Court was delivered by

Hidayatullah, J. This appeal is directed against the judgment of the High Court of Punjab and Haryana at Chandigarh, November 16, 1967 by which the election of tb.e appellant to the Vidhan Sabha of Haryana State from the Kaial constitu~!lCY has been ~Jared to be void. The election was held on February 19, 1967 and the result of the pool was declared on February 22, 1967.

The appellant had a margin of nearly 2000 votes over the fust

rpondent who was the closest rival. One other candidate had also stood but we are not concerned with him in the present appeal since he has not shown any interest in it. He secured less than

1000 votes and forfeited his security.

The election petition was based upon allegations of corrupt practice against the successful candidate. The gravamen of the charge was that she as a minister in the Government of Mr. Bhagwat Dayal Sharma used certain discretionary grants to bribe the voters of her constituency and in particular by paying two sums of Rs. 2,000 for the construction of two dharamsa/as for the Kumhar and the Sweeper Colonies at Kaithal. There were other allegations also against her but as they have been found against the election petitioner and have not been brought to oilr notice we need not say anything about them.. The learned Judge who tried the election petition did not accept the evidence tendered by the election petitioner to prove the corrupt practice outlined above but held on a general appraisal of the circumstances of the case that these sums were in fact paid to bargain for votes and to influence the voters in favour of the appellant. We shall now give a few facts of the case before stating our conclusion.

The election petition was filed on April 7, 1967. It was later amended and.better particulars were supplied on July 29, 1967.

In the original election petition as filed by the election petitioner it was stated that a sum of Rs. 2,000 from the discretionary grant of the appellant was paid to the Harijans of Keorak Gate, Kaithal for the construction of a dharamsala.

The allegation then was that in the beginning of January 1967 the Harijans were approached by the appellant and were asked to vote for her.

They flatly refused to vote for her.

Thereupon she promised to provide funds for the crnstruction of a dharamsala in their' basti and tempted by this offer they agreed to vote for her. In regard to the other discretionary grant it was stated in the original petition that the Kumhar voters who reside in Do1ifan Gate. Kaithal, were also

OM PRABHA V. ABNASH CHAND (Hidayatuilah, J.) ll3

approached by the appellant in the beginning of January 1967 and were asked to vote for her. When they refused to vote she promised them a sum of Rs. 2,000 for building the dharamia/a in their locality. It was further pointed out that the first sum of Rs. 2,000 was paid through the Deputy Commissioner, Kamal. vide his Memo No. 78-BP-III/67 /335 of January 12, 1967. The second payment was also made on the same <!_ate through the' Deputy Commissioner, Kamal, vide Development Department Memo No. 47-BAP-III-67 /326.

The affidavit in support of the election petition was sworn by the election petitioner on information supplied by others and bee lieved to be true. It was stated in the verification clause that thi>

information was received "from my workers and believed to be true".

On an objection being raised that the particulars of the corrupt practice were not adequate and on the other hand vague and that D the affidavit did not disclose the persons from whom the information was derived the Court ordered that better particulars be supplied and a fresh affidavit filed.

The amended election petition was then filed in July, 1967. In this election petition a change was iritroduced. It was stated that on December 22, 1966 the Harijans were called to a Canal Rest House through one Om Pra- E kash Shorewala. President of the Municipal Committee, KaithaL Other members of the Municipal Staff including the Executive Officer Bhalla were also present. Among those who came were one Khaki Ram, Banwari Lal and one Harijan Lamberdar whose name was not given, In the presence of these persons request was made to the Harijans to vote for the appellant, and when they

refused to do a sum of Rs. 2,000 was promised from the discretionary grant, and on this offer the Harijan voters consented to vote for the appellant.

It was further alleged that this. amo11J1t was ultimately paid to Khaki Ram and Banwari Lal through Shri Om Parkash Shorewala (R.W. 4). As regards the second charge it was stated that on December 29. 1966 the Kumhar voters w"e

summoned t~ the Canal Rest House and three persons, Thakru, Altra and. Lilloo came as the representatives of the Kumhar community.

The same procedure, viz., asking them to vote for her candidature waS followed by the appellant and on their refusal to do so a sum of Rs. 2,000 was promised to them for the construction of a dharamsala in their bastr at Dogran Gate. Kaithal. This induced them to change their views.

The affidavit was also corrected. It was stated that the allegation was based upon information received from Pandit Kailash Chander, s/o Pandit Harl.Ram of Kaithal and Cb. Inder Raj, ex-Municipal Commissioner, Chandena Gate Gamri, Kaithal. ·

114 SUPREME COURT REPOllTS (1968] 3 s.c.ll.

In auswer to the amended election petition the written statement adued that the allegation was a pure concoction. The appellant pointed out that the grant for the construction of the dharamsa/as was made by the appellant as far tiack as December 19, 1966 and that the allegation that it was the result of a bargain either on December 22 or December 29, was a pure fiction.

The election petitioner examined fourteen witnesses.

We are, however, not concerned with all of them because they are eonnected with the other allegations in the election petition.

Witnesses bearing upon this case were only four. They were Gurbax Singh

(P.W. 1), who only proved certain documents, P. N. Bhalla (P.W. 3), the Executive Officer of the Municipality, Thakru (P.W. 8), whose name has already been mentioned by us and Abnash Chander, the election petitioner .. In the evidence a change was again introduced. It was attempted to be proved that the bargain which had been referred to in the election petitions actualiy took place on December 3, 1966. This time it was affirmed that the Kumhars and the Sweepers were called together. An objection was taken before the learned Judge that this evidence could not be considered because the plea was 'CjUite different. The learned Judge ruled that the objection would be decided later.

It appears that the learned Judge did not put too much emphasis on the change of pleading presumably because he found the evidence to be unsatisfactory and unreliable. On the side of the appellant were examined one R. N. Kapur (R.W. 1), the personal Secretary of the appeJlant who proved her tour programme to give a lie to some of the allegations in the election petition. Attroo (R.W. 3), who was said to have been present at the conferences, Om Parkash Shorewala (R.W. 4 ), the Municipal President, Mr. Bllagwat Dayal Sharma (R.W. 5), the Chief Minister in whose Ministry the appellant was working as the Finance Minister and the appellant herself.

It is not necessary to go largely into what the witnesses said because the learned Judge himself observed as follows :-

"Whereas according to the respondent the fact of the grant is not disputed, but it is denied that the grant was made in consideration of these communities voting for G her. If the matter had remained at this stage and the executing agency (the Sub-Divisional Magistrate) had disbursed these grants I would not have been prepared . to accept the oral evidence regarding the bargain which

led to the grants. But the manner, how the money was realised and disbursed, lends ample support to the evidence that the bargain was struck." H It is clear that the learned Judge was of the opinion that the evidence led to prove the conference and the bargain at the con-

OM PRABHA V. ABNASH CHAND (Hidayatuiiah,.J.j 115

ference was unacceptable. He, however, accepted it because it was supported by circumstantial. details of the withdrawing of the money which was sanctioned; but for this the learned Judge 'l'l"OU!d not have accepted the election petition.

We shall glance at this evidence which hlis been led in the case. As. pointed out above the only witnesses from the conference are Thakru (P.W. 8) and Bhalla (P.W. 3). With regard to Thakru it is sufficient to point out what the learned Judge himself said at the end of the deposition of Thakru : "The tei.timony of this witness has not at all. impressed me. I will place no reliance whatsoever on his testimony''. In view of this observation of the learned Judge we think we are entitled to ignore his testimony altogether. As regards Bhalla (P.W. 3), he seems to have deposed not only in respect of these two grants but evecy allegation made in the election petition. Mr. A. K. Sen, for the appellant, vecy pertinently described him as an omnibus witnes~.

His evidence is not convmcing. It appears on the record of this case (and it was in fact admitted by Bhalla) that the .appellant had taken action against him in respect of a house which fell down owing to the negligence of the Municipal Authorities. It appears to us that Bhalla was hostile to the appellant. There is enough material to show that he was tcying to get even with the appellant for her action in putting the blame upon' him for the falling down of a house from seepage of water from the municipal mains. The learned Judge did not place any direct relianre upon Bhalla's testimony.

As we have shown above, if it had not been for the circumstances attending the grant the learned Judge himself would have discarded his testimony. We must, therefore, proceed with extreme caution in dealing with Bhalla's evidence in the case.

It may be pointed out here that in the election petition as well as in the evidence it was itated that the Harijans and Kumhars were summoned through Bhalla and the peon was ordered by Om Prakash Shorewala to call the leaders of these two communities to !he Canal Rest House.

Sat Prakash, the peon was not examined m the case.

Of the persons present on the first occasion viz., Banwari La~ Khaki Ram, Lilloo and Attra and the Harijan 'Lamberdar who was not even named, none was examined except Aitrou and Thakru.

Attroo was eJ!:amined by the appeliant.

We have shown above that the learned Judge placed no 'reliance upon Thilkru's word He made a similar remark about Attroo also so that the case really comes to this that there is only the evidence of the parties and such other evidence as was furnished by Shorewala and Bhalla. The persons from whom information was derived as stated in the verification of the affidavit were not called as witnesses.

We have shown that Bhalla's testimony must not be taken oil its face value. Om Prakash Shorewaia was support-

SUPREME COURT UPORTS

[1968) 3 S.C.R.

ing !he.election petitioner but even so his evidence goes in favour of the appellant. The fact, however, remains that the election petitiol!er himself was fumbling with the facts and was not able to state quite categorically when the conferences took place and on what date and at which place. He changed the dates as more infonnation came to hand. This was not information about the conferences but the date on which the grant was sanctioned and the dates on which the appellant c<>U!d be expected to have held the conferences. In these circumstances, we are i.atisfied that in this case the oral evidence is practically non-existing.

Mr. ¥ehta, who lll'gue(j the case on behalf of the answering respondent stated that it was not necessary at all .to give the facts al; lout the coµ4lrences and that the charge of bribery wuld be proved eyen without the details of how the bn'be came .to be given.

He relied .up<;>n e judgment of the Madras High Court in Kandaswami v. S .. B. Adityan(1) _for the proposition that a bribe is a bribe altho1.1gh the date on which it is given may not be capable of

llein~ spetjlie<! if it could be" estabjshed oerwi$0 that th~ money was 111, fact paid; and he further relied on a iudgment of this Court .in Bhagwan Datta Shastri v. Ram Ratan; i O:upta & Ors. (2) that

even if the fuli part.iculars be not gi\ren evidence might still .be led to determine whether .a corrupt practiee had in fact tak:en place or not: We need not decide .in. this c&Se what the pleadings and

th~:pr90f , shoulitbe". l'he ordinary rule of. law is that evidence is to be given olily on a plea properly raised and not in contradic• tion <Jf the plea. Here the pleas wen; made on two different occasions and contradicted ePch other. The evidence which was tendered contradicted both the pleas. the source of the information was not attempted to be proyed and the witnesses who were brought were found to be thoroughly unreliabfo. In these circumstances we do not propose to refer to the evidence in this judgment any more.

This brings us to the question whether the circumstances of this case clearly demonstrated that there must have been some kind of bargain before the grant was made aiid that this bargain was with a view to inducing the voters to support the candidature of th~ appellant. n Ghasi Ram v . . Dill Singh & Ors. (8 ) in which the judgment of this Court was pronounced today, the law re'ating to eorrupt practiee specially in the matter of giving of discretionary grants has been considered and stated. It has been pointed out that a Minister in the discharge of his duties may be required to do some acts of administration including the granting of money for the uplift of certain.communities and this action of the Minister is not to be construed against him unless it can be established

(I) 19 E.L.R. 26J.

(2) A.I.R. l96J S.C. 21JO.

(3) (1968] 3 S.C.R. I ' 2.

OM l'RABHA v. ABNASH CHA.ND (Hidayatul/ah, I.) 117

that there was a bargain with the voters for getting thtjr assistance at the election.

Since tbe oral evidence in this case is non'eXisting we must now look a. the circumstal!Ql!S whether this conclusion which has been drawn by the High Court can be irresistibly reached.

B The State of Haryana came into existence on November 1,

1966. Immediately afterwards the Cabinet placed certain sums of money at the disposal of the Chief Minister, the Cabinet Ministers, Ministers for. State and Deputy Ministers, to be used at their discretion for the uplift of the communities. A sum of Rs. 50,000

was placed in the discretionary grant of a Minister and the appel c !ant as the Finance Minister in the Ministry of Shri BhagwafDayal Sharma was required to spend this money. The money had io be disbursed before the. end of the Financial Year, that is to say, before March 31, 1967. It is reasonable to think that there must have been several demands in this State from the various. community centres for their own uplift and they must have been clamouring even before for money for the establishment of schools, D hospitals, supply of water, and so on. . The. policy tement attached to the sanction of the discionary grant stated the purp<ises for which the money could be utilised. It was stated quite clearly that the money shoulCI not be given to any private person but should be given through the Development Commissioner for. purposes of public utjlity and for benefit of the general I: public and that the execution of the works should be through certain named agencies such as Zilla Pill'ishad, Piznchayat Samit/es, the Panchayats concerned, the Public Works Department or any other Government Agencies or Municipality as the Millister may indicate. In the present case money was to be disbursed through the Municipal Committee.

F It is argued that the money was withdrawn and made available a day before the poll suggesting thereby that this was done to assure the voters that the money had come in as a result of the bargain. The hurry in reacbh.tg the money to these two wards in the Kaithal Municipality is the main reason behind the learned Judge's conclusion that it must have been a part of a bargain.

G Evidence, however shows that Bhalla (who was not favourable to the appellant) himself wrote saying that the money should be mad~ available at once; and this money came to the hands of Om Prakash

Shorewala, who, as we have alreitdy pointed out, was helping the answering respondent in his election. It appears to us that all this hnrry which did not emanate from the 'appellant was the result of ti an anxiety on the part of !he recipients the money should be made available as soon as possible. There is always a risk of a change of attitude partlcularly if the election goes against a particular party. The persons who were to benefit by the discretionary

118 SUPREME OO'VaT UPOR.TS'

[1963] 3 S.C.R.

grant !night themselves have n anxious to Jay hands on this money so that the grant might not be cancelled later. This money was actually made available not before the date of the poll but as late as March 3, 1967. No doubt the sanction was before the date of poll but that too was Jong before the date when even the candidature of the appellant was recognised by her party. The aetion of the appellant, therefore cannot be construed against her.

It must be accepted as done in the ordinary course of her duties as Minister. Since there is no evidence to show that it was a part of a bargain directly or indirectly the case does not satisfy the test which we have laid down in Ghasl Ram's(') case.

The appeal must succeed. It is accordingly allowed.

There will be no order about costs.

V.P.S.

Appeal allowed.

(I) [1968]. 3 S, C.R. 102.

...

01\t: PRABHA JAIN

ABNASH CHAND & ANR

February 1, 1968

M. HIDAYATULLAH

R. S. BACHAWAT

1968] 3 S.C.R. 102

CIVIL APPELLATE JURISDICTION

s. 116

Representation of the People Act 1951

A. K. Sen

B. Dutta

P. C. Bhartari

M. L. Aggarwal

A J. B. Dadachanji

S. K. Mehta

K. L. Mehta

Hidayatullah

November 16, 1967

Vidhan Sabha of Haryana State

February 19, 1967

February 22, 1967

Bhagwat Dayal Sharma

Kaithal

April 7, 1967

July 29, 1967

Hidayatuilah

Kamal

December 22, 1966

Om Pra- E kash Shorewala

Municipal Committee, KaithaL

Bhalla

Khaki Ram

Banwari Lal

Harijan Lamberdar

Om Parkash Shorewala

December 29. 1966

Thakru

Altra

Lilloo

Pandit Kailash Chander

Inder Raj

December 19, 1966

December 22 or December 29

Gurbax Singh

P. N. Bhalla

Abnash Chander

December 3, 1966

R. N. Kapur

Attroo

Bllagwat Dayal Sharma

OM PRABHA V. ABNASH CHAND

Hidayatuiiah,

Bhalla

Harijans

Kumhars

Om Prakash Shorewala

Sat Prakash

Banwari La~ Khaki Ram

Lilloo

Attra

Harijan 'Lamberdar

Aitrou

Thakru

Thilkru

Shorewala

Om Prakash Shorewaia

ehta

Madras High Court

State of Haryana

November 1,

1966

BhagwafDayal Sharma

March 31, 1967

Zilla Pill'ishad

Kaithal Municipality

Om Prakash

Shorewala

March 3, 1967

Ghasl Ram