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2013 DIGILAW 558 (MP)

Geeta Bai v. Sub-Divisional Officer

2013-04-25

Sujoy Paul

body2013
ORDER 1. This petition filed under Article 226 of the Constitution of India is directed against the order dated 23.12.2010 whereby the Sub-Difvisional Officer (Revenue) allowed the election petition filed under section 122 of the Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Adhiniyam) and declared the petitioner’s election as void and in lieu thereof declared the respondent No.3 as elected Sarpanch. Brief facts necessary for adjudication of this matter as under : 1A. The election for the post of Sarpanch in Gram Panchayat, Barodakalan was declared on 22.12.2009. The private parties herein submitted their candidature for the post of Sarpanch. The petitioner was elected as Sarpanch. This election was called in question by filing the petition under section 122 of the Act (Annexure P-2). The petitioner filed his reply and thereafter the Sub-Divisional Officer (hereinafter called as Election Tribunal) framed the issues, recorded the evidence of the parties and then decided the matter by the impugned order. 2. Shri Kirar, learned counsel for the petitioner, assailed this order on following grounds : By placing reliance on rule 3(2) of M.P. Panchayat (Election Petitions Corrupt Practices and Disqualification for Membership) Rules, 1995 (for brevity called as “E.P. Rules, 1995”), he submits that the election petition needs to be accompanied by as many as copies thereof as there are respondents and every such copy shall be attested by the petitioner’s own signature. Shri Kirar submits that in the present case the election petition and its copies were although signed by the election petitioner, it was not mentioned that it is ‘attested’ by the election petitioner. Thus, by placing reliance on 2011(2) JLJ 234 = 2011(4) MPHT 90 (Sanjay v. Shri Lal and others), it is argued that the Election Tribunal has committed an error in entertaining the election petition, despite the aforesaid serious infirmity in the election petition. He submits that the election petition was liable to be dismissed on this score alone. The next attack on the order of the Election Tribunal is on the ground that the proper issues were not framed by the Tribunal. It is stated that although certain issues are framed but those issues are not specific. In absence of framing of specific issues, grave prejudice is caused to the petitioner and, therefore, the order is liable to be entertained. It is stated that although certain issues are framed but those issues are not specific. In absence of framing of specific issues, grave prejudice is caused to the petitioner and, therefore, the order is liable to be entertained. In support of this contention, reliance is placed on (2009)16 SCC 300 (Shivakumar D.K. v. Basavaraju and others), and AIR 2001 SC 490 (Makhan Lal Bangal v. Manas Bhunia and others). The aforesaid two contentions are with regard to procedural part of the election proceedings, whereas on merits also Shri Kirar assailed the order of the Election Tribunal. 3. It is stated that as per section 36(1)(cc) of the Act, the disqualification is attached to a candidate only when it is shown and established that he himself has encroached the Government or Panchayat land. He submits that there was no material to show the same, therefore, the disqualification clause under section 36(1)(cc) is not attracted. By placing reliance on the declarations filed by the petitioner while submitting the candidature, it is argued that the petitioner has not suppressed any material facts. The declaration is in consonance with the requisite statutory format. No declaration on merit falls within the ambit of suppression of material facts or mentioning incorrect facts. He submits that the language of section 36(1)(cc) is plain, clear, precise and unambiguous. By placing reliance on AIR 1992 SC 1981 (Nelson Motis v. Unionof India and another), Shri Kirar submits that this is settled principle of interpretation of a statute that when language is clear and not susceptible tomore than one interprettion, such plain meaning has to be given effect to irrespective of its consequences. 4. By taking this Court to the finding part of the impugned order and the evidence relied upon by the Election Tribunal, it is argued that for deciding the election matter and more so when it deals with the “corrupt practice”, the principle and degree of “proof which is beyond reasonable doubt” has to be applied and the principle which is applicable in civil cases i.e. “preponderance of probability” has no application. He submits that oral evidence of interested candidate was not enough to hold the petitioner as guilty. In support of this contention, he relied on 2011(2) MPLJ 488 (SC) (Joseph M. Puthussery v. T.S. John and others). No other point is pressed by Shri Kirar. 5. He submits that oral evidence of interested candidate was not enough to hold the petitioner as guilty. In support of this contention, he relied on 2011(2) MPLJ 488 (SC) (Joseph M. Puthussery v. T.S. John and others). No other point is pressed by Shri Kirar. 5. Shri Anil Mishra, learned counsel for respondent No.3, submits that the petitioner has not taken any objection while filing the written statement before the Election Tribunal with regard to non-observance of rule 3 of the said rules. He submits that in absence of any such objection, there was no occasion for the Election Tribunal to enter into the said facet. He submits that the petitioner participated in the proceedings before the Tribunal without any objection on this aspect and raised this point for the first time before this Court. He submits that the signature of election petitioner is very much there is the body of the election petition and on the copies supplied to the other parties of the said election petition and, therefore, this case is distinguishable from the case cited by Shri Kirar. It is submitted that mere non mention of “true copy” will not vitiate or deprive the election petitioner to have a full trial when admittedly her signatures are there in the body of the election petition and copies supplied to the other contesting parties. 6. By placing reliance on rule 3 of M.P. Panchayat Nirvachan Niyam, 1995, it is stated that statutory forms are prescribed under the aforesaid rules and petitioner has not disclosed the correct facts in the said disclosure/declaration and, therefore, she is guilty of suppression of material facts and on this count itself her election was liable to be declared as void and illegal. Shri Mishra relied on the statement of Geeta Bai, Nannu Lal and Bhuri Bai to submit that the petitioner was guilty of corrupt practices. By taking this Court on various statements of the witnesses aforesaid, it is stated that the petitioner was rightly held to be an encroacher and, therefore, the Tribunal has rightly declared her election as illegal by invoking section 36(1)(cc) of the Act. In addition, Shri Mishra supported that finding of the Tribunal regarding corrupt practice by the petitioner and submits that in the event of clear evidence on record, the Tribunal has committed no error of law in holding that the petitioner was guilty of corrupt prctices. In addition, Shri Mishra supported that finding of the Tribunal regarding corrupt practice by the petitioner and submits that in the event of clear evidence on record, the Tribunal has committed no error of law in holding that the petitioner was guilty of corrupt prctices. Lastly, by placing reliance on (2011)11 SCC 786 (Kalyan Singh Chouhan v. C.P. Joshi), it is stated that the parties were clear about the issues involved in the matter, whether or not issues are actually framed or rightly framed, it will not cause any prejudice to the parties and on this score the proceedings and order impugned cannot be set aside. 7. Shri Kirar in his rejoinder submits that even if the objection with regard to non fulfilment of requirement of rule 3(2) is not taken in the written statement, it was the mandatory duty of the election petitioner to examine whether the election petition fulfills the aforesaid statutory requirement or not? In absence thereof, the proceedings were bad and, therefore, merely because objection is not raised, will not provide any legality to the order impugned herein. No other point is pressed by the parties, nor any other authority is relied by them. 8. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 9. The first attack of the petitioner is on the ground that rule 3 of 1995 Rules are not complied with in as much as in the copy supplied to the parties to the election petition, the word ‘attested’ or ‘true copy’ was not mentioned. In my opinion, the judgment of Sanjay v. Shri Lal and others (supra), is distinguishable and has no application in the facts and circumstances of the present case. In the said case, the respondent No.1-election petitioner did not sign on the copies and, therefore, by invoking rule 3, this Court opined that this a serious deficiency and amounts to non-compliance of mandatory provision. In the present case, admittedly, the signature of the election petitioner is there on every copy supplied to the parties to the election petition. In my opinion, the basic purpose of bringing rule 3 in the statute book is to ensure that the correct copies are supplied to the party concerned. The purpose is also to fix the responsibility. In the present case, admittedly, the signature of the election petitioner is there on every copy supplied to the parties to the election petition. In my opinion, the basic purpose of bringing rule 3 in the statute book is to ensure that the correct copies are supplied to the party concerned. The purpose is also to fix the responsibility. Once it is admitted that the signature of the election petitioner was there on all the copies, merely because the word ‘attested’ or ‘true copy’ was not there, it will not have any adverse impact on the election petition. Thus, this point is decided against the petitioner. 10. The petitioner further submits that the Tribunal had committed an error in not framing specific issues or framed improper issues. In my opinion, the pleadings of the parties before the Tribunal and in the manner matter was contested, it is clear that the present petitioner was fully aware about the issues involved in the election petition. He contested the matter accurately and it cannot be said that mere defect in framing any issue resulted into any prejudice or injustice to the petitioner. The judgments in the case of Shivakumar D.K. and Makhan Lal (supra), are not applicable in the facts and circumstances of the present case. 11. Before dealing with the contention regarding disqualification under section 36(1)(cc), it is profitable to quote the said provisions : “36. Disqualification for being office bearer of Panchayat. -- (1) No person shall be eligible to be an office-bearer of Panchayat who - (cc) has encroached upon any land or buildings of the Panchayat and Government; or;” 12. A bare perusal of this provision makes it crystal clear that the said provision can be applied, provided the petitioner herself had encroached any land or building of the Panchayat or Government. This is settled principle of interpretation of statute that a penal provision or a provision which may have adverse impact on the person has to be construed strictly. Thus, this provision may apply only when it is established that the petitioner herself had encroached upon the land. The declaration which was required to be given by the petitioner in the prescribed form was whether she herself had encroached the Government or Panchayat land.The petitioner filled up the form and gave declaration as desired under the prescribed format. Thus, this provision may apply only when it is established that the petitioner herself had encroached upon the land. The declaration which was required to be given by the petitioner in the prescribed form was whether she herself had encroached the Government or Panchayat land.The petitioner filled up the form and gave declaration as desired under the prescribed format. The declaration is that she has not encroached any Panchayat or Government land. 13. By taking this Court to the evidence, Shri Anil Mishra made herculean efforts to establish that there was an encroachment on the land in question. However, the evidence shows that there is no material that the petitioner herself had encroached on the land. On the contrary, the evidence shows that the alleged encroachment is there for many decades. Admittedly, it is not the case of the election petitioner that the petitioner herself had encroached the land in question. In absence of any such evidence, it cannot be said that the petitioner is either disqualified under section 36(1)(cc) or gave any incorrect declaration or suppressed the material facts. To this extent, the finding of the Tribunal is erroneous wherein it was held that the petitioner was an encroacher and, therefore, under the aforesaid provision she should be treated as disqualified. The impugned order is bad in law with regard to this aspect (Issue No.1). 14. The next aspect is with regard to allegations of ‘corrupt practices’ by the petitioner. Under the Act, the Rules are framed which are known as The Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (Corrupt Practices Rules). A bare perusal of these rules in juxtaposition to the relevant provision and Representation of People Act (R.P. Act) shows that the provision with regard to ‘corrupt practices’ in these rules are almost pari materia to the provisions of the R.P. Act. In R.P. Act also in the event allegations of corrupt practices are proved, disqualification attached on the candidate and deprived him to contest election within a stipulated period. Same is the provision here in the said rules. Rule 29 makes it clear that the said disqualification should be attached in the event of adopting ‘corrupt practice’. The evidence which came against the petitioner with regard to ‘corrupt practice’ is that she was distributing liquor in certain villages. The allegations of ‘corrupt practice’, if established, have a serious consequence. Same is the provision here in the said rules. Rule 29 makes it clear that the said disqualification should be attached in the event of adopting ‘corrupt practice’. The evidence which came against the petitioner with regard to ‘corrupt practice’ is that she was distributing liquor in certain villages. The allegations of ‘corrupt practice’, if established, have a serious consequence. Accordingly, in catena of judgments it has been held that such allegations are required to be proved to the hilt.The principle applicable for this purpose is the same which is applicable in criminal cases, i.e., proof which must be beyond reasonable doubt. 15. The apex Court in Joseph M. Puthussery (supra), held as under : “So far as standard of proof is concerned, there is no manner of doubt that the High Court misdirected itself on the point of standard of proof required under section 123 of the Representation of People Act, 1951. The learned Judge without explaining invented a new standard of proof to be made applicable to electiondisputes and has held that standard of proof higher than the one applicable to the civil cases but certainly lesser than one applicable to the criminal cases, should be adopted while determining the question whether an elected candidate is guilty of corrupt practice/s within the meaning of the Act. Normally, standard of proof made applicable to civil cases is preponderance of reasonable doubt. Even with the ablest assistance of the learned counsel for the parties, this Court could not comprehend as to which is that standard of proof which is higher than the one applicable to civil cases and lesser than the one applicable criminal cases. The standard of proof, spoken of by the learned Judge, neither gets recognition/stamp of authority either from the provisions of the Indian Evidence Act or from any other statute or from judicial precedents. There is no manner of doubt that the standard of proof, which should be adopted according to the High Court while determining an election dispute, is contrary to settled principles of law. The settled law is that an election trial where corrupt practice is alleged is to be conducted as a criminal trial. There is no manner of doubt that the standard of proof, which should be adopted according to the High Court while determining an election dispute, is contrary to settled principles of law. The settled law is that an election trial where corrupt practice is alleged is to be conducted as a criminal trial. Unfortunately, the High Court has not referred to any decision of this Court on the point though the learned counsel for the appellant claimed that several decisions were cited by the learned counsel for the parties to guide the High Court as to which standard of proof should be adopted while deciding an election dispute. In Jagdev Singh Sidhani v. Pratap Saingh Daulta [ (1964)6 SCR 750 ], the Five Judge Constitution Bench of this Court has laid down, in paragraph 12 of the reported decision as under : “12. It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail.” It may be observed that the principle that in an election petition based on corrupt practice the Court has to adopt standard of proof beyond reasonable doubt, is enunciated in at least not less than six other reported decisions of this Court. However, this Court does not wish to burden the judgment unnecessarily by referring to those reported decisions in detail becuase the learned counsel for the respondent has fairly conceded before this Court that a wrong standard of proof was adapted by the High Court while trying the election petition filed by the respondent No.1 challenging the election of the appellant. However, this Court does not wish to burden the judgment unnecessarily by referring to those reported decisions in detail becuase the learned counsel for the respondent has fairly conceded before this Court that a wrong standard of proof was adapted by the High Court while trying the election petition filed by the respondent No.1 challenging the election of the appellant. The consequence of the conclusion, that the learned Single Judge adopted a wrong standard of proof while determining the election dispute raised by the respondent No.1, would be that the other findings recorded by the learned Judge will have to be viewed in the light of this fundamental error committed by him.” 16. Apart from this, the apex Court opined that in the cases of election disputes, it is very easy to produce oral statements but it is very unsafe to accept and rely on such oral statements. The responsibility is to be fixed so that there is no scope of misstatement or wrong evidence.The apex Court in Azhar Hussain v. Rajiv Gandhi [1986 (Supp.) SCC 315], opined as under : “There is no averment to show that the publication was made with the knowledge or consent of the returned candidate when the book was published in June, 1983. In fact, in 1983 there was no questionof having acted in anticipation of the future elections of 1985 and in anticipation of the respondent contesting the same. In the election petition even the offending paragraphs have not been quoted. The petitioner has set out in paragraph (a) to (h) the inferences drawn by him or the purport according to him. This apart, the main deficiency arises in the following manner. The essence of the charge is that this book containing alleged objectionable material was distributed with the consent of the respondent. Even so strangely enough even a bare or bald averment is not made as to : (i) whom the returned candidate gave consent; (ii) in what manner and how; and (iii) when and in whose presence the consent was given, to distribute these books in the constituency. Nor does it contain any material particulars as to in which locality it was distributed or to whom it was distributed, or on what date it was distributed. Nor are any facts mentioned which taken at their fact value would show that there was consent on the part of the returned candidate. Nor does it contain any material particulars as to in which locality it was distributed or to whom it was distributed, or on what date it was distributed. Nor are any facts mentioned which taken at their fact value would show that there was consent on the part of the returned candidate. Under the circumstances it is difficult to comprehend how exception can be taken to the view taken by the High Court.” 17. In the present case, there is a bald statement by certain witnesses that liquor was distributed by the petitioner. However, the name of the village, the time when it was allegedly distributed is not mentioned. The name of the persons who have allegedly taken the said distributed liquor is also not mentioned. No independent person other than the interested contesting parties entered the witness box in support of the said submission. Witness Ratan Singh stated that liquor was distributed to certain “saharia” persons. However, names of those persons, time and other relevant aspects were not disclosed. No person who allegedly received liquor was examined on behalf of election petitioner. Similarly, witness Mahendra Singh stated that the liquor and money was distributed in Barodakalan and Kailash Nagar. It is important to note that the persons who allegedly received it have not been called to depose their statement. Other necessary particulars regarding quantum of amount, time of distribution, in whose presence it ws distributed, with whose consent it was distributed is not mentioned. Applying the test laid down in Rajiv Gandhi (supra), such evidence cannot be treated to be a clinching evidence of corrupt practice against the petitioner. Same is the case in the statement of Bhuri Bai, who made a bald statement that petitioner distributed liquor in various villages. Names of the villages, time, date etc. are not mentioned. Bhuri Bai herself is an interested person being a candidate and, therefore, in absence of other statements of independent persons which meets the requirement of establishing the case beyond resonable doubt, the petitioner’s election cannot be set aside in a routine manner. Thus, in my opinion, such bald statement cannot be treated as a conclusive proof of committing corrupt practices by the petitioner. Accordingly, in my opinion, the Court below has erred in relying on the sweeping statement of the witnesses in this regard and erred in holding that the petitioner was guilty of committing corrupt practices. Thus, in my opinion, such bald statement cannot be treated as a conclusive proof of committing corrupt practices by the petitioner. Accordingly, in my opinion, the Court below has erred in relying on the sweeping statement of the witnesses in this regard and erred in holding that the petitioner was guilty of committing corrupt practices. On this ground also the impugned order is liable to be interfered with. 18. At the cost of repetition, in my opinion, the statements of Geeta Bai, Nannu Lal and Bhuri Bai are not sufficient to hold that the petitioner had committed any ‘corrupt practice’. This is also settled in law that the mandate of public election should not be disturbed in a routine manner, otherwise, it will hamper democratic process. Accordingly, the election can be disturbed only when allegations are proved to the hilt. The election petitioner has failed to do the same and, therefore, the order cannot be permitted to stand in this regard. 19. A bare perusal of the impugned order shows that the Tribunal has interfered with the election on the ground that the petitioner was an encroacher and the petitioner had adopted corrupt practices. As analyzed above, both the points were erroneously decided by the said authority. Hence, the result is inevitable. The impugned order Annexure P-1 is set aside. No cost. .............