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2006 DIGILAW 286 (JK)

Bhim Singh (Prof. ) v. Ch. Talib Hussain

2006-11-29

Y.P.NARGOTRA

body2006
1. The Seat of Shri Vishno Dutt, in the House of People Elected from 6-Jammu Parliamentary Constituency in the State of Jammu and Kashmir became vacant on 27-11-2001 by reason of his death. Therefore, for holding bye- election in the said seat, the Election Commission of India on 16-1-2002 issued Notification No. 100/J&K-HP/1/2001 in exercise of the powers vested in it under sub-section (1) of Section 149 and Section 30 and 56 of the Representation of the People Act 1951 for calling upon the electorates of 6- Jammu Parliamentary Constituency to elect a person, for the purposes of filling the said vacancy in the House of People. By the same Notification the Commission fixed 23rd January, 2002 as the last date for making nominations; 24th January, 2002 as the date of scrutiny of nominations; 28th January, 2002 as the last date for the withdrawal of candidatures; 21st of February, 2002 as the date for conducting the poll, if necessary. The whole election process was directed to be completed before 28th February, 2002. In case of poll hours for the same were fixed from 8 AM to 5 PM. In response to the said Notification, the petitioner Prof Bhim Singh filed his nomination papers as a candidate of J&K National Panthers Party, besides the other candidates including respondent No.1 Ch Talib Hussain, who filed his candidature as a candidate of National Conference Party. On the scrutiny of the nomination papers being held on 24-1-2002, 16 candidates in all were found qualified for the said election. After the completion of the election process, respondent No.1 Ch. Talab Hussain was declared elected by the Returning Officer on 27-2-2002. 2. The petitioner Prof Bhim Singh has called in question the election of respondent No.1 Ch Talib Hussain, through the medium of this election petition on two grounds, namely, (i) that respondent No.1 resorted to Corrupt Practices and (ii) that the election process was vitiated because of the violation of the Rules Governing the conduct of elections. He has alleged in the petition that respondent No.1 Ch Talib Hussain being a candidate of ruling-party used all Government Machinery for the purposes of election with the connivance, knowledge and consent of then State Chief Minister during the election campaign and attracted the voters for casting Votes by promising them the Government jobs in the State and the Center. He has alleged in the petition that respondent No.1 Ch Talib Hussain being a candidate of ruling-party used all Government Machinery for the purposes of election with the connivance, knowledge and consent of then State Chief Minister during the election campaign and attracted the voters for casting Votes by promising them the Government jobs in the State and the Center. The State Chief Minister being the head of ruling National Conference distributed Sewing Machines and Rs 1100/- to each of the so called destitute women at R S Pura, Suchetgarh and Bishnah Assembly Segments. The then Chief Minister Dr. Farooq Abdullah declared publically for opening of Ist Medical College in village Suchetgarh and a Public Health Center at Pargwal while campaigning for respondent No.1 Ch Talib Hussain. It has also been submitted that during the election campaign several daily wagers were appointed in different departments of the State with the connivance of respondent No.1. Even the Deputy Commissioners of Poonch, Rajouri and Jammu at the behest of the Ministers of the State extended promises to the people of weaker sections of the Society that they shall be allotted sites for houses and will be granted old-age pensions, if they voted for respondent No.1. During the campaigning the then Chief Minister Dr. Farooq Abdullah used Government Helicopter for election propaganda with respondent No.1. This apart, it has also been alleged that Rules 20 and 21 of the Conduct of Election Rules, framed by the Election Commission of India were also violated. It has also been stated in the petition by the petitioner that from the distribution of votes among the candidates in Mendhar, Rajouri and Surankote, it is apparent that abnormally large number of votes were shown to have been polled in favour of respondent No.1, whereas the other candidates received only negligible number of votes, which is indicative of the fact that there was prima-facie evidence of irregularity during poll and despite that those votes were not cancelled by following Rules 21 & 22 of the said Rules. 3. The petitioner has also alleged that bye-election was held on 21-2-2002 on the basis of electoral rolls prepared in the year 1988 and since 1988 there has been no revision of the said rolls. Thus, the persons who had already died continued to be shown as voters, whereas the living voters were denied the right of franchise. 3. The petitioner has also alleged that bye-election was held on 21-2-2002 on the basis of electoral rolls prepared in the year 1988 and since 1988 there has been no revision of the said rolls. Thus, the persons who had already died continued to be shown as voters, whereas the living voters were denied the right of franchise. The Chief Election Commissioner in connivance with the State administration in order to give benefit to respondent No.1 with ulterior motive prepared the electoral rolls. A representation was made to the Chief Election Commission of India in this behalf, but that was not given any consideration. It has also been stated by the petitioner that Rule 28 made it mandatory to provide Identity Cards for Electors of Jammu and Kashmir which had not been provided so they remained victim of fraud and electoral manipulation ever since election process started in the State. The Government of Jammu and Kashmir had declared 347 polling stations in a constituency as sensitive on the eve of the election day, without even providing the list of the names of such polling stations which caused a terror among the polling agents of the opposition parties including Panthers Party, who were not provided any protection by the State, and therefore, respondent No.1 being a candidate of National Conference rigged absolute polls in these un-known 347 Polling Stations in Rajouri and Poonch Districts. Petitioner has further alleged that there were several polling stations which were shifted on the day of election in connivance with the Chief Electoral Officer,. The polling stations of the displaced persons of Planwala, Pargwal etc were put up hundred miles away where no voter could reach, yet the polling was shown above 80% polling. 4. On the above allegations, as per the case of the petitioner the conduct of said Parliamentary Bye-Election was totally illegal, fraudulent, faulty and violative of the provisions of the Representation of Peoples Act as well as the Registration of Electors Rules, 1960 and the mandatory guidelines issued from time to time by the Election Commission of India and therefore, election of respondent No.1 Ch Talab Hussain was illegal and void. 5. After filing of the election petition, the respondents, namely, Ch Talab Hussain respondent No.1, Chief Election Commission of India, respondent No.2 and the Returning Officer, respondent No.3 were put on notice. 5. After filing of the election petition, the respondents, namely, Ch Talab Hussain respondent No.1, Chief Election Commission of India, respondent No.2 and the Returning Officer, respondent No.3 were put on notice. However, by order dated 7-6-2003, the name of Chief Election Commission of India, respondent No.2 was deleted from the array of the respondents. 6. Despite service, the written statement was not filed by the respondents. By order dated 16-11-2004 time was extended by four weeks, subject to payment of costs of Rs 1000/- for filing written statement, but still the same was not filed either by respondent No.1 Ch Talib Hussain or by the Returning Officer, respondent No.3. By order dated 13-10-2005 last opportunity was granted. Still neither the costs were paid nor the written statement was filed. Therefore, by order dated 31-3-2006 right of the respondents to file the written statements was closed. Petitioner Prof Bhim Singh was called upon to lead evidence in support of the petition. It was also ordered that in case he needed the assistance of the Court for summoning his witnesses, he would furnish list of the witnesses and deposit the diet expenses of the witnesses within a period of two weeks failing which he was directed to produce all the witnesses on his own on the next date of hearing. 7. Despite the aforesaid opportunity the petitioner neither filed any list of the witnesses nor produced them on his own on the date fixed. However, Mr. B.B. Kotwal, learned counsel for the petitioner sought further time for filing the list of witnesses and depositing their diet expenses. By order dated 31-3-2006 the prayer made was dis- allowed and the evidence of the petitioner except his own statement was closed. The petitioner was directed to be produced on the next date of hearing for making his statement as his own witness. However, on 19-4-2006, the next date fixed for hearing, learned counsel for the petitioner made a statement that he did not want to lead evidence in support of the election petition, but submitted that he wanted only to make submissions on the issues raised which did not require any proof by leading evidence. In view of the statement made, the evidence of the petitioner was closed and the case after being adjourned was taken up for final hearing on 21-11-2006. 8. In view of the statement made, the evidence of the petitioner was closed and the case after being adjourned was taken up for final hearing on 21-11-2006. 8. It may be pointed out here that during the course of hearing of this petition even the counsel for respondent No.1 and respondent No.3 have not been appearing to contest the petition and even on the date when the case was taken up for final hearing, there was no representation for them, so in the absence of the counsel for the respondents, the learned counsel for the petitioner was heard. 9. The contention of Mr. B.B. Kotwal, learned counsel for the petitioner is that the allegations made in the election petition should be deemed to have been admitted by the respondents as they have not controverted the same by filing written statements He submits that the facts alleged in the petition clearly demonstrated the corrupt practices resorted to by respondent No.1 during the election as well as violation of the election rules by the concerned authorities. He relies upon cases Balwan Singh v. Prakash Chand and others (AIR 1976 SC 1187) and S. Raghbir Singh v. Gurcharan Singh (AIR 1980 SC 1362). 10. Section 95 of the Representation of the People Act provides for the procedure to be adopted by the High Court for trial of an election petition. It provides as follows:- "Section 95: Procedure before the High Court: (1) Subject to the provisions of this Act and any Rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the provisions applicable under the Code of Civil Procedure, Samvat 1977 to the trial of suits; Provided that the High Court shall have the discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings; (2) The provisions of the Evidence Act,Samvat 1977, shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. 11. 11. From the bare reading of section 95, it is manifest that an election petition is to be tried like a Civil Suit in accordance with those provisions of the Code of Civil Procedure applicable for the trial of the suits, which are not inconsistent with the provisions of the Act or the Rules framed there-under. It is also a settled principle of law that the allegations of corrupt practices are to be deemed as charges of quasi- criminal character. In order to succeed the election petitioner must plead all material particulars thereof and prove them by cogent and clear evidence beyond any shadow of reasonable doubt. (Refer D. Venkata Reddy v. R. Sultan and others, AIR 1976 SC 1599 and AIR 1990 SC 924). 12. In the present case the petitioner though has made serious allegations of corrupt practices against respondent No.1, but has not led any evidence to prove those allegations even remotely. What to talk of evidence of necessary witnesses, even the petitioner himself has not chosen to appear in the witness box for proving his charges leveled against respondent No.1 nor he has tendered any evidence to prove the basic facts showing that respondent No.1 resorted to corrupt practices or that the election process was vitiated because of the violation of the Rules governing the conduct of elections. Therefore, the contention of the learned counsel for the petitioner that simply because the respondents have not controverted the allegations made in the petition, the allegations made are to be deemed to have been admitted, is without any merit. Like a criminal case, in an election petition the onus of proving the allegations of corrupt practices stated in the election petition always lies heavily upon the election petitioner. Therefore, without the proof of the allegations made it cannot be held that respondent No.1 has resorted to the corrupt practices during the election campaign. 13. The reliance placed by the learned counsel for the petitioner upon the cases AIR 1976 SC 187 and AIR 1980 SC 1362, is misplaced and have no application to the facts and circumstances of the case. 14. For the reasons stated above, no merit is found in the election petition of the petitioner. It is as such dismissed. There shall be no order as to costs.