Jay Veer Singh vs Hari Om Yadav
2021 Latest Caselaw 11302 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.10.2021
 
Delivered on 10.11.2021
 
AFR
 
Court No. - 46
 

 
Case :- ELECTION PETITION No. - 4 of 2017
 

 
Petitioner :- Jay Veer Singh
 
Respondent :- Hari Om Yadav
 
Counsel for Petitioner :- Jaiveer Singh (In Person),K.R. Singh
 
Counsel for Respondent :- Shivam Yadav
 

 
Hon'ble Manoj Misra,J.

In Re:- Civil Misc. Application No.2 of 2019 under Order VII Rule 11 CPC

1. Jay Veer Singh (the election petitioner) has filed Election Petition No.4 of 2017, under section 81 of The Representation of the People Act, 1951 (the 1951 Act) to declare the election of the respondent Hari Om Yadav as Member of Legislative Assembly from 99 Sirsaganj Assembly Constituency, District Farrukhabad as null and void and to set aside the same. The declaration as prayed for is sought on the ground that the respondent committed the corrupt practice of bribery, as defined in sub-section (1) of Section 123 of the 1951 Act, by offering; promising and gifting to the electors of the constituency road, etc on the condition that they agree to vote for him.

2. The averments made in the election petition to demonstrate commission of corrupt practice of bribery are contained in paragraphs 10 to 33 of the petition, which are extracted below:-

"10. That Sri Vijay Pratap Yadav the son of the respondent Hari Om Yadav is the President (Chairman) of Zila Panchayat Firozabad. Being the son of the respondent Sri Vijay Pratap Yadav always accompanied the respondent during the campaign in the constituency.

11. That as the respondent was having very bad reputation in the constituency therefore he adopted a very clever mode of corrupt practice of bribery to the electors to vote for him. Where ever the respondent went for campaign during the election, he offered and promised the electors that he will get a road constructed at the doorstep of electors only if they will vote for him otherwise the road will not be constructed. He also assured that his son is the President of Zila Panchayat Firozabad and he (the respondent) will fullfil their promise if the electors promise to vote for respondent.

12. That the election of 99 Sirsaganj Legislative Assembly Constituency was held in 1st phase of election. From the said election the notification was issued on 17.01.2017. The Model Code of Conduct was already imposed by the Election Commission of India upon declaration of the dates of the election.

13. That the respondent filed his nomination paper on 23.01.2017 and after filing the nomination paper he became a candidate at the election as defined under Section 79(b) of Representation of the People Act, 1951.

14. That after being a candidate in the election the respondent went to village Karikhera, Gram Panchayat Karikhera, Block Araon, which is one of the village in the constituency, on 25.01.2017 at about 2.00 P.M. at the Temple in the village. The respondent was accompanied by following persons-

Vijay Pratap alias Chhotu Yadav son of Harim Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

15. That when the respondent along with the aforesaid persons reached at the Temple in village Karikhera at 2.00 P.M. then a number of villagers get collected at the said place including Ram Bharose son of Charan Das, Dauji Ram son of Tulsi Ram, Rahul son of Mulayam Singh and Chandra Pal son of Raghubar Dayal, all the resident of village Karikhera. The respondent said to them that there is no road and he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from the house of Ram Bharose up to the house of Ram Nath and from the house of Vijai Singh up to the house of Ram Nath. The respondent immediately directed his son Vijay Pratap Singh to get the road constructed before poll and he agreed for the same.

16. That as per offer and promise made by the respondent the construction of the road started from 26.01.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

17. That the respondent also went to village Nagla Khandari, Gram Panchayat Karikhera, Block Araon, which is one of the village in the constituency, on 25.01.2017 at about 4.00 P.M. at the Chabutara of Anar Singh's house in the village. The respondent was accompanied by following persons-

Vijay Pratap Yadav alias Chhotu Yadav son of Hari Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of Village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

18. That when the respondent along with the aforesaid persons reached at the Chabutara of Anar Singh's house in village Nagla Khandari at 4.00 P.M. then a number of villagers collected at the said place including Ajeet Rajput son of Tara Singh, Indra Pal Singh son of Pati Ram, Ajab Singh son of Kunwar Sen and Dipty Singh son of Mahtab Singh, all residents of village Nagla Khandari. The respondent said to them that he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from the house of Diwari Lal up to the house of Ram Prakash. The respondent immediately directed his son Vijay Pratap Yadav to get the road constructed before poll and he agreed for the same.

19. That as per offer and promise made by the respondent the construction of the road started from 27.01.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

20. That the respondent also went to village Fakkarpur, Gram Panchayat Fakkarpur, Block Araon, which is one of the village in the constituency, on 27.01.2017 at about 11.00 A.M. at the Chabutara of Omkar's house in the village. The respondent was accompanied by following persons-

Vijay Pratap Yadav alias Chhotu Yadav son of Hari Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of Village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

21. That when the respondent along with the aforesaid persons reached at the Chabutara of Omkar's house in village Fakkarpur at 11.00 A.M. then a number of villagers got collected at the said place including Ankit Rajput son of Lalta Prasad, Subodh son of Vidya Ram, Laxman Singh son of Rohan Singh and Prithvi Raj son of Satya Dev Singh, all residents of village Fakkarpur. The respondent said to them that he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from the house of Mansha Ram up to the house of Vijai Pal. The respondent immediately directed his son Vijay Pratap Yadav to get the road constructed before poll and he agreed for the same.

22. That as per offer and promise made by the respondent the construction of the road started from 29.01.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

23. That thereafter the respondent along with all the aforesaid persons proceeded to nearby village Naadau, Gram Panchayat Bahadurpur, Block Araon and reached there at about 2.00 P.M. in front of the house of Hare Lal. Within a short while some of the villagers collected at the said place including Vinod Singh son of Ujagar Singh, Arun Kumar son of Jagannath Singh, Sandeep son of Jai Pal Singh, Ranjeet Singh son of Preetam Singh and Pramod Singh son of Ujagar Singh. The villagers made complaint about absence of road then the respondent made an offer that he will get the road constructed but the villagers have to vote for him in lieu of the road. It was decided that the road will be constructed from the house of Netra Pal up to the house of Ganga Singh. The villagers agreed and the respondent directed his son Vijay Pratap Yadav to get the Cement Concrete (CC) road constructed before the poll and he agreed for the same.

24. That as per offer and promise made by the respondent the construction of the road started from 29.01.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

25. That the respondent also went to village Rudhaini, Gram Panchayat Rudhanini, Block Araon, which is one of the village in the constituency, on 28.01.2017 at about 01.00 P.M. at the Chabutara of the house of Veerul Kashyap in the village. The respondent was accompanied by following persons-

Vijay Pratap Yadav alias Chhotu Yadav son of Hari Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of Village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

Awadhesh Baghel alias Papai son of ex-minister Late Sunder Singh Baghel resident of village Kathphori, Post Bachhela-Bachheli, District Firozabad

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

26. That when the respondent along with the aforesaid persons reached at the Chabutara of the house of Veerul Kashyap in village Rudhaini at 01.00 P.M. then a number of villagers get collected at the said place including Rohit Tenguria son of Vidya Shankar, Arjan Singh son of Gulab Singh, Milan son of Mukut Singh, Mohit son of Yatesh and Chandra Kumar son of Sobaran Singh, all the resident of village Rudhaini. The respondent said to them that he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from the house of Balbir up to the house of Khunni Lal. The respondent also said that there is no marriage hall (Barat Ghar) in the village and he will give Gitti and Sand for the same but the villagers have to vote for him. The villagers agreed for the same. The respondent immediately directed his son Vijay Pratap Yadav to get the road constructed and to dump the Gitti and Sand for Barat Ghar before poll and he agreed for the same.

27. That as per offer and promise made by the respondent the construction of the road started from 30.01.2017 and Gitti and Sand for construction of Barat Ghar was dumped in the village. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

28. That the respondent also went to village Chirhuli, Gram Panchayat Chirhuli, Block Araon, which is one of the village in the constituency, on 29.01.2017 at about 11.00 A.M. at S.F. Public School in the village. The respondent was accompanied by following persons-

Vijay Pratap Yadav alias Chhotu Yadav son of Hari Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of Village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

29. That when the respondent along with the aforesaid persons reached at S.F. Public School in village Chirhuli at 11.00 A.M. then a number of villagers were collected at the said place including Sunny Tomar son of Santosh Singh, Shivraj Baghel son of Ram Singh and Suresh Tomar son of Kedar Singh all resident of village Chirhuli. The respondent said to them that he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from big water tank up to the house Mohabbat Ali, from house of Babu Mahtar up to the school and from the house of Shyam Veer Baghel up to the house of Ram Chandra Baghel. The respondent immediately directed his son Vijay Pratap Yadav to get the road constructed before poll and he agreed for the same.

30. That as per offer and promise made by the respondent the construction of the road started from 02.02.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner.

31. That the respondent also went to village Khaurai, Gram Panchayat Khaurai Ajnaura, Block Madanpur, which is one of the village in the constituency, on 31.01.2017 at about 03.00 P.M. in front of the house of Atul Baghel in the village. The respondent was accompanied by following persons-

Vijay Pratap Yadav alias Chhotu Yadav son of Hari Om Yadav, President Zila Panchayat Firozabad (son of the respondent).

Radha Krishna Rajput, President of Samajwadi Party Vidhan Sabha Sirsaganj, resident of village Nagla Khandari, Post Ukhraind, District Firozabad.

Mata Deen Dhangar son of Kali Charan, Member Zila Panchayat Firozabad, resident of Village Nagla Khushhali, Post Karhara, District Firozabad.

Pradeep Singh son of Netra Pal Singh resident of Kaurara Road, Sirsaganj, District Firozabad.

Jogendra Yadav, Block Pramukh, Block Madanpur, resident of Village and Post Garhsaan, District Firozabad.

Durg Pal Yadav (D.P. Yadav), Member Zila Panchayat Firozabad, resident of Sirsaganj, District Firozabad.

Awadhesh Baghel alias Papai son of ex-minister Late Sunder Singh Baghel resident of village Kathphori, Post Bachhela-Bachheli, District Firozabad.

The respondent along with aforesaid persons went in four vehicles with registration numbers UP 83 W 4444, UP 83 AK 4444, UP 83 X 0001 and UP 83 Z 4545.

32. That when the respondent along with the aforesaid persons reached in front of Atul Baghel's house in village Khaurai at 03.00 P.M. then a number of villagers were collected at the said place including Jaskaran Pandey son of Siya Ram Pandey and Mahi Pal Singh son of Ram Gopal both residents of village Khaurai. The respondent said to them that he will get a road constructed for them before the polling of votes with the condition that they shall vote for respondent in lieu of the said road. The villagers agreed to it. After a short deliberation it was decided that the respondent shall get a Cement Concrete (CC) road constructed before poll from the house of Mukut Singh Baghel up to the house of Shiv Raj Singh Kushwah. The respondent immediately directed his son Vijay Pratap Yadav to get the road constructed before poll and he agreed for the same.

33. That as per offer and promise made by the respondent the construction of the road started from 01.02.2017 and the material for construction of the road was also collected at the said place. The construction of the road was as per promise made by the respondent for getting the votes of the electors of the village in lieu of the said road. The road completed before the date of poll. The aforementioned persons told the aforesaid fact to the petitioner."

3. Before the Court proceeds to notice and address the grounds on which rejection of the election petition under Order VII Rule 11 CPC is sought, it would be appropriate to notice the notified relevant dates of the election in question. These are:-

		Last date for nomination 			24.01.2017
 
		Date for scrutiny of nomination papers	25.01.2017
 
		Date for withdrawal of Candidature	27.01.2017
 
		Date for poll					11.02.2017
 
		Date for counting of votes			11.03.2017
 
		Date of declaration of result		11.03.2017
 
	4.	I have heard Sri Shivam Yadav for the returned candidate (i.e. the respondent) and Sri K.R. Singh for the election petitioner on the application under Order VII Rule 11 CPC.	
 

5. On behalf of the returned candidate, Sri Shivam Yadav urged that assuming the averments made in the election petition to be correct, no case of bribery is made out for the following reasons: (a) that there is no offer or promise or gift to any person in particular; rather, the allegation is with regard to carrying out development work for the benefit of public at large which cannot be considered bribe more so when it is done at the instance of a member of legislative assembly returned in the previous election as is the returned candidate; (b) that there is no claim that the returned candidate offered any bribe to any person in particular for votes; (c) that carrying out development work in the constituency per se is not a corrupt practice; (d) that the work as alleged was carried out by the returned candidate's son who completed the work in the capacity of a President of Zila Panchayat therefore, the work, if any, carried out by Zila Panchayat, would not amount to a corrupt practice or bribe by the candidate; (e) that the allegations are made on the basis of information received without disclosing as to who had passed on the information; and (f) that there is no disclosure by the election petitioner as to the number of votes secured by him as well as the returned candidate from the concerned villages to demonstrate whether the votes from those villages had a material impact on the election. To support his contentions, Shri Shivam Yadav cited following decisions: (i) AIR 1968 SC 1191 - Ghasi Ram Vs. Dal Singh & Ors; (ii) AIR 1964 SC 1366 - Mohan Singh Vs. Bhanwar Lal; and (iii) 1987 (Supp) SCC 93 - Dhartipakar Madan Lal Agarwal Vs. Rajeev Gandhi.

6. Per Contra, Sri K.R. Singh, for the election petitioner, submitted that while addressing the issue whether the plaint/election petition is liable to be rejected under Order VII Rule 11 CPC only the averments made therein are to be read as a whole to find out whether they disclose a cause of action to sustain the relief sought. At this stage, the factual correctness of the allegations is not to be examined and, therefore, the allegations have to be taken on their face value. Whether those allegations are correct or not would have to be tested after leading of evidence. He argued that, according to the averments, the returned candidate extended promises as a bargain for votes after submission of nomination and those promises were allegedly fulfilled before the polling date. All this clearly amounted to corrupt practice of bribery for which the election is liable to be annulled. He submitted that whether the work projects were part of the scheduled work of Zila Panchayat or not, is a matter of evidence. But, as it is not the case in the election petition that the work alleged was part of the scheduled work of Zila Panchayat, merely because the son of the returned candidate is a Zila Panchayat President, it cannot be made basis to assume that the Zila Panchayat performed the work already sanctioned by it. He also submitted that once the use of corrupt practices by the returned candidate is substantiated, under section 100 (1) (b) of the 1951 Act, it is immaterial whether the margin of defeat is large or small because the election would be rendered void.

7. Having noticed the rival submissions, before I proceed to weigh the merit of the rival submissions, it be observed that at the stage of consideration of a prayer to reject the plaint / election petition under Order VII Rule 11 CPC, it is well settled, the correctness of the allegations is not to be tested on the basis of material produced by the defendant/ respondent. At this stage, the averments made in the plaint or the petition, as the case may be, are alone to be considered as a whole to find out whether they disclose a cause of action to sustain the prayer made. In the instant case, therefore, what is to be seen is whether the averments in the election petition, as they stand, make out a case of Bribery as contemplated in Section 123 of the 1951 Act.

8. Section 123 of the 1951 Act defines corrupt practices and sub-section (1) thereof deals with the corrupt practice of Bribery. It provides as follows:-

"123. Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--

(1) "Bribery", that is to say--

(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing--

(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to--

(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward--

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation.--For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

9. Section 100 of the 1951 Act specify the grounds for declaring an election void. The relevant portion of sub-section (1) of section 100 of the 1951 Act is extracted below:-

"100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion--

(a) ......

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c)......

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--

(i) ............., or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) ............, or

(iv)..............,

the High Court shall declare the election of the returned candidate to be void"

10. In Samant N. Balkrishna v. George Fernandez, (1969) 3 SCC 238, interpreting the inter play between clause (b) and clause (d) (ii) of sub-section (1) of section 100 of the 1951 Act, it was held that the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than election agent. Here an additional fact has to be proved that the result of the election was materially affected. In the instant case, as the allegations in respect of commission of corrupt practices are direct against the returned candidate, sub-clause (b) of sub-section (1) of section 100 of the 1951 Act would get attracted and, therefore, it is not necessary for the election petitioner to demonstrate by averments in the election petition as to how the result has been materially affected by such corrupt practices. Thus, the contention of the returned candidate that because the election petition is bereft of pleading as to how the result was materially affected by the alleged corrupt practices, the election petition is liable to be rejected, under Order VII rule 11 CPC, is devoid of merit.

11. Now, what is to be seen is whether the alleged conduct of the returned candidate in promising / executing /carrying out work projects/ roads, etc in return of promise by voters to vote for him amounts to bribery as per the provisions of sub-section (1) of section 123 of the 1951 Act. In Ghasi Ram's case (supra) cited by the learned counsel for the returned candidate it was held 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. In the context of a Minister, it was observed, the position is different because he cannot cease to function when his election is due. He must of necessity attend to the grievances, otherwise he must fail. 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 would come to a stand still. In that background it was observed that discretionary grants part of the general scheme to better community development projects and to remove the immediate grievances of the public would not amount to corrupt practices. While holding as above, a caveat was added, by observing, that "if there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different...." After observing as above, the Supreme Court in Ghasi Ram's case (supra), went on to observe that "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 good 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 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."

12. In Harjit Singh Mann Vs. S. Umrao Singh and Ors., (1980) 1 SCC 713 while noticing the decision in Ghasi Ram's case (supra) it was observed "that the trial court rightly took the view that it was necessary for the purpose of proving corrupt practice of bribery to establish that there was an element of bargaining in what the respondent was alleged to have done... Reference in this connection may be made to the decision of this Court in Ghasi Ram v. Dal Singh and others where it was held with reference to the decision in Amirchand v. Surendra Lal Jha and Ors. that if a Minister redress 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 a corrupt practice unless he obtains promises from the voters in return, as a condition for his help. It was also held that 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, and that if there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different. ...........It was therefore necessary for the appellant to plead and prove that there was bargaining between the respondent and the voters."

13. From the decisions noticed above the legal position that emerges is that if grants etc, or projects etc, are doled out on the eve of the election, after the filing of nomination, by way of a bargain for votes then it may amount to a corrupt practice. Otherwise also, it is not considered appropriate and has been termed an evil practice. But, whether it dons the character of a corrupt practice is to be determined on the weight of evidence brought on record. Ordinarily, though, completion of pending work projects does not, in absence of anything else, amount to any gift or promise to voters as has been held in Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi's case (supra) and, in absence of foundational plea of a corrupt practice, the election petition may be rejected under Order VII Rule 11 CPC. Further, as held in Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi's case (supra), an electoral promise to the voters in general to ameliorate their condition or to improve the general condition of their constituency may not by itself amount to a corrupt practice.

14. The judgment of the Supreme Court in Mohan Singh V. Bhanwarlal & Ors (supra) cited by Sri Shivam Yadav does not apply at all to the facts of the case as there the promise was for a job. Hence, I do not propose to discuss the said judgment.

15. Having noticed the legal position, what is to be determined, now, is whether the averments made in the election petition refer to a bargain for votes or they are just with regard to completion of pending projects. On a perusal of the averments made in the election petition, the relevant portion of which has already been extracted above, it transpires that the works were promised after filing of nomination and, after taking promise from the voters that if they vote for him (i.e. the returned candidate) the work would be done, the works were completed before the polling date. Thus, according to the allegations, a bargain for votes was struck which, if proved, would amount to a corrupt practice as contemplated in sub-section (1) of section 123 of the 1951 Act. The argument that the returned candidate had been the sitting Member of the Legislative Assembly and had a duty towards the constituency; and that his son was a President of Zila Panchayat having its own obligations to the public therefore the alleged promises/ execution of work per se, would not amount to corrupt practices is a matter to be examined on the weight of the evidence led by the parties. At this stage, while addressing the prayer to reject the petition under Order VII Rule 11 CPC only the allegations made in the petition are to be considered. In the instant case, there is nothing in the election petition to suggest that the work carried out was sanctioned from before; and that it was completed as a matter of course as was the case in Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi's case (supra). No doubt, on behalf of returned candidate, it has been argued that from the averments it could be gathered that the Zila Panchayat carried out the work but there is nothing in the election petition to suggest that it was part of a sanctioned project of the Zila Panchayat. Therefore, in my view, whether the work projects promised /completed /executed were by way of a bargain to induce voters to vote for the returned candidate or an exercise to complete projects already undertaken by the Zila Panchayat in ordinary course of its business is a matter of evidence and no definite opinion with regard thereto can be formed at this stage while addressing the prayer to reject the election petition under Order VII Rule 11 CPC. I am therefore of the considered view that the prayer to reject the election petition under Order VII Rule 11 CPC is liable to be rejected.

16. Accordingly, the application under Order VII Rule 11 CPC is dismissed. Let the matter be listed on 24.11.2021 for framing of issues.

Order Date :- 10.11. 2021

AKShukla/-