Shri Narboo Ram vs Shrimathi Lata Thakur and Another

D.B. Lal, J.—Narboo Ram, an elector in the Lahaul and Spiti Assembly Constituency of the State of Himachal Pradesh, has filed this election petition within the provisions of the Representation of People Act, 1951 (hereinafter to be referred as the Act), wherein he has challenged the election in favour of Lata Thakur (Respondent No. 1) who has been declared successful against Devi Singh (Respondent No. 2), having secured a margin of 1074 votes over him. The election took place on 4-6-1972 and the result was declared on 9-6-1972. There was a straight contest between Devi Singh and Lata Thakur. One Hira Nand had also filed his nomination paper which he had subsequently withdrawn, according to Petitioner, due to the gratification which he received from Lata Thakur.

According to Petitioner, Lata Thakur was not a member of the Scheduled Tribes and as such was not qualified to contest as a candidate. Apart from this, she also committed several corrupt practices of which particulars have been given in the petition. It is stated that she incurred unauthorised expenditure which for exceeded the limit of Rs. 5,000/-, although in her election expenses she has shown only Rs. 1,095/- as the amount spent by her. According to Petitioner a procession of more than 200 persons was taken by Lata Thakur between the dates 29-5-1972 and 1-6-1972 from Keylong to Udaipur and the members of the procession were entertained at villages Shansha, Thirot, Tozing and Udaipur. They were offered tea and cigarettes, and regular "langars" were opened. Lata Thakur is stated to have spent more than Rs. 5,000/- for all this.

In this connection it is further stated that Lata Thakur employed vehicles and spent Rs. 4,000/- for the charges of such vehicles. She also employed workers and made payments. In this manner she committed an act of corrupt practice u/s 123(6) of the Act for having incurred or authorised expenditure in contravention of Section 77.

It is then contended that Lata Thakur committed the corrupt practice of undue influence and also of appeal by her or her agents with her consent, to vote or refrain from voting on ground of religion and she also appealed to religious symbol like "Dubang" which is a holy-book of the Buddhists. According to Petitioner, nearly 120 voters of village Rangreek (Spiti) were exhorted by her as well as her agents to vote in favour of Lata Thakur. They were administered oath by placing ''Dubang'' on their heads, which was a form of oath which bound them under a threat of divine displeasure to vote in her favour. Similarly throughout Spiti area either she or her workers and supporters with her consent administered similar oath upon many voters whose number was in thousands. It was stated that such oaths were administered at Kaza, Tabo, Bargaon, Sangnam and Dankher.

In village Barri of Lahaul area Lata Thakur and her supporters administered a similar oath upon one Tashi Dawa and thus she committed the corrupt practice of undue influence and also of appeal to voters in the name of religion or religious symbol. According to Petitioner, the Lamas and Chomos (nuns) of Buddhist temples were threatened by her or her workers, when it was stated that their temples would be closed, their form of worship would be altered and that divine displeasure would follow in case they would not vote for Lata Thakur. This was done at Gimur where a panchayat was summoned, at Keylong (Barchi), Beeling and Sattingri.

The third candidate Hira Nand was persuaded by the Respondent No. 1 to withdraw from the election and in this manner she offered a bribe to him. She committed corrupt practice u/s 123(1) of the Act.

According to Petitioner, Lata Thakur also obtained or procured the assistance of Government servants. On 14-5-1972 she boarded the jeep of one Panchhi Ram, S.D.O. (P.W.D.), Keylong, from a place near Beeling and went towards Udaipur side. This she did in furtherance of her election prospects and thus committed the corrupt practice u/s 123(7) of the Act. For this incident, a complaint was also made by Devi Singh Respondent No. 2, which was enquired into by the Returning Officer. It is then asserted that Prem Chand Supervisor and Karam Dass Overseer of P.W.D. Udaipur made propaganda in favour of Lata Thakur. They openly threatened workers and ''beldars'' and thus secured large number of votes in her favour. The S.D.O. (P.W.D.) of Tindi similarly worked openly for her and he terminated the services of 7 coolies at her instance so that votes could be secured in her favour. According to Petitioner, jeep HIM-8056 belonging to the Executive Engineer, P.W.D. Key long was used by the election workers of Lata Thakur between the dates 29-5-1972 and 1-6-1972. That was also an assistance taken in furtherance of the election prospects. Similarly a jeep HPL-1 belonging to the Deputy Commissioner, Keylong, was used by Lata Thakur between the dates 21-5-1972 and 3-6-1972. According to Petitioner, the Deputy Commissioner told him that she had taken the jeep on hire. It is further submitted that the Executive Engineer, Udaipur, at her instance, sent a proposal for giving water supply scheme to the people of village Morrang. One Prem Nath was sent to village Ropsang to make a survey of the said scheme. At Shansha, submitted the Petitioner, Urgian Chhering, Branch Postmaster was her polling agent. He exhorted the voters with her consent and secured large number of votes. Lata Thakur herself made speeches, at several places and she told the people that road from Kaza to Samdo would be opened, that supply of firewood would be made by the help of helicopter and that a college would be opened at Spiti. All this was an offer of bribe to the voters.

According to Petitioner, she obtained votes of Buddhists in the name of their religion. She told them that she would be bringing Dalai Lama for ''darshan''. In this manner, she aroused the religious sentiment of the people. On such false assurance the Buddhist voters flocked to her side and turned the scale in the election.

The Petitioner finally submitted that Government loud-speaker were used in the meetings addressed by her between the dates 2-5-1972 and 26-5-1972. Several illegalities and material irregularities were also committed. One wangial was supposed to have voted at polling station Darcha, but he was not even present in the village. He was having a training for librarian at Solan. Similarly Tanzin was supposed to have voted at polling station Keylong which he could not do as he was not even present in the village. At polling station Kardang, according to Petitioner, three underage persons voted. Two of them were Sonam and Kungzom. It is also stated that members of Armed Forces and Border Security Force were not given facility to cast their votes. In this manner, according to Petitioner, the corrupt practice u/s 100(1)(d)(ii) and (iii) was committed and the result of the election was materially affected.

With these allegations, it is prayed that, the election in favour of Lata Thakur be declared void and that Devi Singh Respondent No. 2 be declared elected. It is further prayed that Lata Thakur be debarred from contesting future elections as she has committed corrupt practices.

The Respondent Devi Singh has supported the Petitioner in all respects. In fact, whatever details were lacking in the petition were supplied by Respondent No. 2. This is so evident from the written statement filed by this Respondent. However, the allegations made in the petition are denied in to by Lata Thakur Respondent No. 1.

According to Lata Thakur, she very much belongs to Scheduled Tribe and as such was qualified to contest in the election. She denied that any procession was taken by her. Similarly she denied that any entertainment was given by offering tea, cigarettes or by organising "langars" as stated by the Petitioner. She did not engage any vehicles and hence never incurred any expense. Whatever vehicles were used, were supplied to her by the Congress organisation. The expenses were met from the organisation fund.

She neither threatened the voters nor exhorted them to vote in her favour by taking assistance of oath in any form. Neither she nor her agents administered any oath by "Dubang" or in any other form, nor did she or her agents appeal to voters to vote or refrain from voting on ground of religion or religious symbol. She denied that any oaths were administered by her or her agents at village Rangreek. She was not even present in Spiti area in the months of April or June, 1972 and as such she could not have administered oath upon the voters residing in villages Kaza, Tabo, Bargaon, Sangnam or Dankher. At any rate, neither she administered any such oath nor any of her agents did so. Similarly no oath was administered upon Tashi Dawa of village Barri, as stated by the Petitioner. She did not give threat to Lamas or Chomos, nor did she tell that the temples would be closed or their mode of worship would be altered. She denied that Hira Nand was ever asked by her to withdraw from the election.

According to Lata Thakur, she was going from a place near Beeling and came across the jeep of Panchhi Ram, S.D.O., who was known to her. She was, in fact, going for ''darshan'' at the temple of Trilokinath. She had not till then started her election compaign in Lahaul area. In fact, she wanted to have ''darshan'' of the deity which, according to her custom, was necessary before she opened her election campaign. As she was tired, she made a request to Panchhi Ram to let her travel in the jeep upto some distance, to which he agreed. Accordingly she boarded the jeep and her husband Nihal Chand also boarded it at village Jahlma. Both of them went to Trilokinath and had their ''darshan''. In this manner, it could not be stated that she obtained or procured the assistance of Panchhi Ram in furtherance of the prospects of her election.

Lata Thakur denied that Prem Chand Supervisor or Karam Dass Overseer or anybody or that department threatened the workers of ''beldars'' or secured any votes for her. Similarly she denied that the S.D.O. (P.W.D.) of Tindi worked for her or removed 7 coolies from service at her instance in support of her election. Similarly she denied that her workers used the jeep HIM-8056 of the Executive Engineer, P.W.D. on any of the dates mentioned by the Petitioner. She never hired the jeep of the Deputy Commissioner (HPL-1) nor did she use this jeep between the dates 21-5-1972 and 3-6-1972 as submitted by the Petitioner. She never asked the Executive Engineer, P.W.D., Udaipur to give water supply scheme to the people of village Morrang. None of her agents either asked him to do so. At any rate, neither she nor her agents obtained this assistance in furtherance of election prospect. She denied that Urgian Chhering of polling station Shansha at all helped her in the election. She did not give speeches concerning road or the supply of firewood or the opening of a college at Spiti. She did not appeal the Buddhist voters in the name of religion so that they would vote for her. She never promised nor could she make such promise that she would be bringing Dalai Lama for ''darshan''. She denied that Government loud-speakers were used in the meetings addressed by her. Similarly, according to her, no irregularities or illegalities were committed in the reception of votes, nor any noncompliance was committed of the provisions of the Constitution, or of the Act, or of the rules made thereunder.

It is, therefore, contended on her behalf that the petition should be dismissed with costs for the harassment given and expenses incurred by her.

Upon the pleadings of the parties, the following issues were framed for the decision of the petition:

ISSUES

Whether the Respondent No. 1 or any other person with her consent or the consent of her election-agent committed acts of corrupt practice, as alleged in para No. 7 and its various sub-paras of the petition. If so, with what effects?

FINDINGS

Issue No. 4:

The main contentions of the Petitioner fall within the ambit of this issue. The Petitioner has enumerated corrupt practices, with which according to him Lata Thakur can be indicted so as to defeat her election. The standard of proof, for a corrupt practice u/s 123 of the Act is of a quasi criminal charge. It has been held by the Supreme Court, the latest reported case being Manphul Singh v. Surinder Singh AIR 1973, S.C. 2158 that a charge of corrupt practice u/s 123 of the Act being quasi-criminal in nature must be proved satisfactorily as it has a double consequence, the election of the returned candidate being set aside and the candidate incurring a subsequent disqualification as well. All this would naturally be borne in mind when the Court decides a question whether the corrupt practice alleged has been established. The evidence would then be considered with the pointed attention, as to whether the standard of proof laid down is satisfied for any particular corrupt practice. I would then advert to the individual charges of corrupt practice.

At first I would take up the charge of bribery u/s 123(1) of the Act. In order to make the Respondent indictable, either she herself or her agent with her consent should be held to have committed the act of bribery. If any such act of bribery can be stated to be committed by an agent other than election agent of the Respondent, then u/s 100(1)(d)(ii) before the election can be set aside, material effect as a consequence to such act of bribery in the election in favour of the Respondent would be an additional factor to be established. How far the evidence of the Petitioner succeeds in proving all this, that is the question to be decided.

It is, therefore, unexceptional that the Petitioner miserably failed to prove the procession or entertainment either in the shape of ''langar'' or tea at any of these places.

Next averment in the petition relates to the corrupt practice of undue influence within the meaning of Section 123(2) and (3) of the Act. According to Petitioner, either Lata Thakur or her agents with her consent committed this corrupt practice. If any other person not being an election agent of Lata Thakur had committed this corrupt practice, then u/s 100(d)(ii) material effect on the election was required to be proved. It may at once be stated that there is no evidence worth the name for this material effect. If it is not proved that Lata Thakur or her agents or workers with her consent committed this corrupt practice, the inference would be inevitable that the Petitioner has failed to substantiate this plea. Since the plea of undue influence under Sub-section (2) and appeal to voters on the ground of religion or religious symbol a plea under Sub-section (3) of Section 123 are common in the petition, evidence with regard thereto is common and it shall be considered on merit as such. At first I shall take up the plea regarding the oath which was stated to be administered at village Rangreek of Spiti area.

The averment in the petition is, that the workers and supporters of Lata Thakur, with her knowledge and consent, administered oath by ''Dubang'' upon 120 voters of Rangreek.

It is then contended that throughout the Spiti area Lata Thakur toured with her people. She administered oath by ''Dubang'' and also in some other form at Kaza, Tabo, Bargaon, Sagnam and Dankher. The allegation is that either she or her workers and supporters administered this oath. The Respondent No. 2 himself supplied the details. Perhaps the Petitioner did not know about the details when he submitted the writ petition. Lata Thakur did not even visit. Spiti area during those days. Therefore, it is absolutely incorrect to say that she herself administered oath on these dates at the places specified. Similarly there is no dependable evidence to prove that anybody else on her behalf administered any such oath.

Another series of oath and appeals to voters on the ground of religion or religious symbol, are pleaded with reference to Lahaul area. It is submitted by the Petitioner that Lamas and Chomos of Buddhist temples were threatened in the name of religion. It was stated that their temples would be closed and their mode of worship would be altered. They were threatened with divine displeasure and oaths were administered. No details were given in the petition. However, in the rejoinder the particulars were forthcoming, specially after the written statement was filed by Devi Singh who is the prime mover of this petition. I shall take ad seriatum this oath giving and appeals on ground of religion with reference to different places mentioned in the rejoinder.

For all that has been stated of oaths and threats, the particulars were given in the rejoinder. It is surprising that no information was given in the petition itself. The indication was that the witnesses were approached and it is only when assurances were received that the details were given in the rejoinder. It could even be stated that all these incidents were not included in the petition and were new pleas taken for the first time in the rejoinder. Nonetheless I have discussed the evidence on merit and in my opinion no incident of oath or threat is made out. At any rate, it could not be held with reference to any incident, that Lata Thakur was responsible for the oath or threat. The persons imputed against were not her agents. Thus the plea u/s 123(2) and (3) is not sustainable. I shall advert to another corrupt practice pleaded, which is, obtaininig or procuring assistance of Government servants within the meaning of Sub-section (7) of Section 123 of the Act.

For the reasons to be stated, no such assistance is proved on evidence. However, one incident is admitted and that relates to 14-5-1972 when Lata Thakur travelled in the jeep of Panchhi Ram, S.D.O., Keylong. Accroding to her, she was coming from Beeling and was going to Trilokinath for ''darshan''. She came across the deep and as she was tired appealed to Panchhi Ram to take her upto some distance, which he did. As she was not going for any election work, the journey did not in any manner improve her election prospects. This conduct of Lata Thakur of having travelled in the jeep of Panchhi Ram, S.D.O. neither amounted to obtaining or procuring the assistance of a Government servant nor it was in furtherance of her election prospects. Merely because a candidate travels in a Government jeep and the officer to whom the jeep belongs permits him to do so would not amount to obtaining or procuring assistance from Government servant in furtherance of election prospects. For any such conduct on the part of the candidate a nexus, has to be established between his conduct and the object achieved. In case the object achieved is election prospect, the conduct may be held culpable. The learned Counsel for the Respondent submitted that there must be a consensus of the two intentions, one of the candidate procuring and the Government servant giving such assistance. It may not be correct to say that in every case such a consensus of intention would be a condition precedent. A candidate may be in a position to obtain effective assistance of a Government servant, while the latter might be unaware of the same. The culpability of the candidate would nonetheless be there in such a situation. At the same time, ordinarily, both the candidate and the Government servant are aware as to what assistance is being procured or given and in what manner the candidate is to be benefited. In cases of this type where assistance is sought from Government servant, one has to guard against what are termed as "innocent acts" which are performed not with the avowed object of improving election prospects but are guided by personal relations. One has also to exclude such cases where the Government servant performs his official duty and gives that much benefit to the candidate which he is prone to give to any other person. Such cases are of the pattern where a candidate boards a bus or a train to reach a place where he intends holding an election meeting. The service rendered to the candidate in such cases is the ordinary service rendered to any citizen. It is manifest that no exception can be taken to this category of assistance which, in fact, is not for improving the election prospects in the sense provided by Sub-section (7) of Section 123 of the Act.

At this stage, a few authorities need be noticed which clarify the issue. The expressions "obtains" or "obtaining" have been used in the Prevention of Corruption Act, (1947)--Section 5(1)(d) of that Act. In Ram Krishan and Another Vs. The State of Delhi, their Lordships held that the word "obtains" in Section 5(1)(d) does not eliminate the idea of acceptance of what is given or offered to be given though it connotes also an element of effort on the part of the receiver. Similarly the expression "obtaining" occurs in Section 12 of the Limitation Act, (1963). In the The State of Bihar Vs. Md. Ismail and Others, it was observed that the expression "obtaining" connotes an element of effort on the part of the suitor or the Applicant who seeks the benefit u/s 12 of the Limitation Act, (1963). A division Bench of Allahabad High Court in Moti Lal Vs. Mangla Prasad and Others, was considering a case under the Representation of Peoples Act, (1951) with reference to its Section 123(7). The word "obtains" in Section 123(7), according to the learned Judges, has been used in the sense of the meaning which connotes purpose or efforts behind the action of the candidate. These cases, therefore, make it clear that the expressions "obtaining" or "procuring" signify an effort on the part of the candidate, and cases where the candidate makes no effort are excluded. In the instant case, Lata Thakur was just going on the road. She comes across the jeep of Panchhi Ram, S.D.O., and for that matter could have come across any other jeep. She makes a request and says that she is tired, Panchhi Ram as humanitarian act on his part. permits her to take a seat in the jeep. It is undoubted that Panchhi Ram, besides having ''official personality'' was also possessed of ''private personality''. The assistance given by Panchhi Ram, besides being not an assistance for election work, was given in token of his private personality as distinguished from official personality. Such an assistance could very well be procured by the candidate. A distinction between the two personalities of a Government servant is made out in Hafiz Mohd. Ibrahim v. Election Tribunal Lucknow 13 Election Law Reports, 262. The assistance must be taken from a Government servant because he happens to be a Government servant and not because such an assistance could be taken from any other person who might be present in similar situation in place of the Government servant. In the instant case, Lata Thakur would have obtained a lift in anybody''s jeep, had such person brought his vehicle on the road at that time. Therefore, whatever assistance was given by Panchhi Ram was neither for election purpose nor as a result to his being S.D.O., P.W.D. It was an assistance which was an act of courtesy on the part of any person going on a jeep and somebody asked him to give a lift as he or she is tired.

In this manner all the incidents pleaded by the Petitioner for assistance by Government servants are devoid of any merit and must be rejected.

The last corrupt practice pleaded is of the expenses which, according to the Petitioner, were more than the prescribed limit u/s 77 of the Act. It is stated that she has incurred or authorised expenditure in contravention of this Section. For this, the pleas regarding ''langars'' and entertainments were pertinent and I have already held upon the evidence discussed that such pleas are not sustainable. It is not proved that any ''langars'' or entertainments were organized or any processions were taken out so that the amount of Rs. 4,000/-or Rs. 4,500/- was spent in them.

There is absolutely no evidence for payment to any worker. The conclusion is, therefore, inevitable that Lata Thakur did not spend anything beyond what she has already shown in her accounts. It cannot be stated that she incurred or authorised any expenditure in contravention of Section 77.

This issue is, therefore, decided against the Petitioner.

It is abundantly clear that none of the grounds is made out to set aside the election of the Respondent No. 1 and hence her election cannot be declared void. The logical inference is that the Respondent No. 2 cannot be declared to be duly elected. The Petitioner is thus not entitled to any relief.

While awarding costs to the Respondent No. 1, I have taken regard of the fact that the Respondent No. 2 has been "alter ego" of the Petitioner and in fact supplied all the details to him. In fact, throughout the hearing of the petition, the Respondent No. 2 has taken keen interest to defeat the election of the returned candidate, namely Respondent No. 1. In these circumstances, in my opinion, whatever costs are awarded to the Respondent No. 1 shall be recoverable from both the Petitioner and the Respondent No. 2.

ORDER

The petition is dismissed. No corrupt practice has been proved to have been committed, at the election.

The total amount of costs payable to the Respondent No. 1 by the Petitioner and Respondent No. 2 is fixed at Rs. 3,000/-.

A substance of this decision shall immediately be intimated to the Election Commission and to the Speaker of the Legislative Assembly of Himachal Pradesh. Thereafter an authenticated copy of the decision shall be sent to the Election Commission.