JOSHBHAI CHUNIBHAI PATEL versus ANWAR BEG A. MIRZA

Citation: [1969] 2 S.C.R. 97 · Decided: 13-09-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• • 
A 
B 
c 
D 
E 
F 
G 
H 
JOSHBHAI CHUNIBHAI PATEL 
v. 
ANWAR BEG A. MIRZA 
.September 13, 1968 
(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.] 
Repre;entation of the People Act, 1951, s. 123(5)-lngredlents of 
th~ corrupt practice that must be proved-Prayer for general recount 
lvlfhout pleadings on which it could rest-if can be granted. 
The appellant challenged the respondent's election to the 
Gujarat 
State Legislative Assembly in February 1967, on the ground, inter a/ia, 
that he had committed corrupt practice under s. 123 (5) of the Repre-
sentation of the People Act, 1951. It was alleged that a car was hired 
or procured by the returned candidate and on. the date of the poll it was 
used for free conveyance of three ladies ro the polling booth. 
The High 
Court dismissed the petition. 
In the appeal to this Court it was 
contended that an inference arose in the present case that the ladies must 
have been taken free to the polling booth and reliance was placed in this 
respect on certain findings given by the High Court. There was also a 
prayer that a general recount was wrongly disallowed by the High Court 
and that it should be ordered in the present appeal. 
HELD : Dismissing the appeal : 
(i) S. 123(5) requires threo things, (I) hiring or procuring of a 
vehicle; (2) by a candidate or his agent etc. and (3) for the free con-
veyance of an elector. [102 B-C] 
In the present case there was proof that the1 vehicles were procured; 
there was also proof that a particular vehicle was in fact used for the 
conveyance of the three lady voters to the polling booth; what was not 
proved was that there was free conveyance of the ladies in that vehicle. 
The burden of establishing that this fact was on the appellant-petitioner 
and it \Vas not impossible' of proof because the owner of the car or the 
driver or the ladies could have been examined to show that the ladies 
had travelled free in the vehicle. 
In the absence of this proof the in-
gredients of tl>z section had not heen established and there was therefore 
no room for interference with the High Court's decision though based 
on slightly different reasons. 
The High Court's finding that the ladies 
must have travelled free was a mere surmiSe because there was no evi-
dence whatever on this part of the case. [100 H, 102 G, HJ 
(2) A scrutiny of the pleadings showed that there was no plea on 
which the prayer for a recount could be rested though in the relief 
clause there was mention of a general recount. 
The pleas concerned the 
votes caste by impersonators and rejected votes and as these had already 
been considered. there was no room for a further count. [103 BJ 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 788 of 
1968. 
Appeal under section 116-A of the Repre!;entation of the 
People Act, 1951 from the judgment and order dated October 
17, 18, 1967 of the Gujarat High Court in Election Petition No. 
5 of 1967. 
98 
SUPREME COURT REPORTS 
(1969] 2 S.C.R. 
Bishan Narain and B. Datta, for the appellant, 
S. V. Gupte, 
M. I.Patel, 
R. P. Kapur, 
M. N. Shroff for 
I. N. Shroff, for the respondent. 
The Judgment of the Court was delivered by 
Hidayatullah, C.J. 
This is an appeal from the judgment 
dated 17/18 October, 1967 of the High Court of Gujarat in an 
election petition filed by the present appellant. 
The election 
petition was dismissed by the judgment under appeal. 
The matter concerns the Petlad constituency in Kaira District 
from which election was to be held to the State Legislative 
Assembly Gujarat at the 4th General Election. 
The appellant 
was a candidate for the Swatantra Party and the respondent a 
candidate for the Congress Party. The poll was held on 
February 21, 1967 and the result of the election was declared 
on February 24, 1967. The appellant secured 23,795 votes 
and the respondent 23,981 votes. 
1806 votes were declared in-
valid. 
The respondent was therefore declared elected to the 
seat. 
The election petition set out a number of grounds on which 
the election of the returned candidate was challenged as void 
nuder the Representation of People Act. 
We are concerned in 
this appeal with only one such ground. 
There is also a prayer 
in the appeal that a general re-count was wrongly disallowed by 
the learned Judge who decided the election petition and that it 
should be ordered here. 
We shall come to the second ground 
in due course. 
As regards the first ground, the contention was that a car No. 
GJH 108 was hired or pr

Excerpt shown. Read the full judgment & AI analysis in Lexace.