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2015 DIGILAW 80 (MP)

Narayan Singh Lodhi v. Amar Singh Rajput

2015-01-20

K.K.TRIVEDI

body2015
JUDGMENT : K.K. Trivedi, J. 1. The petitioner has called in question the order dated 16.7.2014, passed in Election Petition by the Sub Divisional Officer, prescribed authority under the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act for brevity), Banda, District Sagar, holding the election of the petitioner as null and void, in these proceedings under Article 226 of the Constitution of India. Mainly, it is contended by the petitioner that in the Panchayat election held for the post of Sarpanch of the Gram Panchayat, Hanouta, the petitioner was declared elected. There was sufficient margin of the votes. The defeated candidate, the respondent No.1, approached the Election Tribunal by filing an Election Petition, under the provisions of Section 122 of the Act, alleging that the petitioner was involved in the corrupt practices on account of which he has secured more votes than the election petitioner. It was alleged that the petitioner has entered into an agreement between some of the candidates, who have supported him in securing the votes and thus, the election of the petitioner was liable to be set aside. 2. On service of the Election Petition, the petitioner filed his reply categorically contending that he has not resorted to any corrupt practices and the agreement said to be executed by the petitioner with others was inadmissible in evidence as the original of the same was not produced. It was contended that since the petitioner has secured sufficient votes, frivolous allegations were made by the respondent No.1. It was thus contended that the Election Petition was liable to be dismissed. The reply submitted by the petitioner was not looked into properly, opportunity of defence was not properly provided to the petitioner, inasmuch as, the Presiding Officer of Election Tribunal has not considered the application made by the petitioner for restraining the respondent No.1-Election Petitioner, to prove a document original of which was not produced and allowed the Election Petition by the impugned order, set aside the election of the petitioner. Hence, this writ petition is required to be filed. 3. This Court has entertained the writ petition. No interim stay was granted by the Court. Since a caveat was filed by the respondent No.1-Election Petitioner, direction was given to furnish him a copy of the writ petition and to file a return. Despite opportunity, no return was filed by the respondents. 4. 3. This Court has entertained the writ petition. No interim stay was granted by the Court. Since a caveat was filed by the respondent No.1-Election Petitioner, direction was given to furnish him a copy of the writ petition and to file a return. Despite opportunity, no return was filed by the respondents. 4. This Court deemed it proper to summon the record of the Election Tribunal, which has been produced in sealed cover by the Government Advocate. Even on the last date of hearing, none has appeared on behalf of the other respondents. Since the contest was in between the petitioner and the respondent No.1-Election Petitioner only, other respondents were not required to be heard. However, on the prayer of learned counsel for the respondent No.1, one more opportunity was granted and the case was directed to be listed on 6.1.2015 with a clear understanding that the same would be heard. On 6.1.2015, none appeared on behalf of the respondent No.1 nor any arguments were made. The counsel for the petitioner was heard. 5. A perusal of the record of Election Petition indicates that the respondent No.1 was present before the Election Tribunal on the date the Election Petition was filed i.e. on 2.3.2010. The presentation of the Election Petition was rightly done. After filing of the reply by the petitioner, the returned candidate and others in the Election Petition, case was fixed for recording of the evidence. By a detailed order dated 12.7.2010, all the facts as stated by the respondent No.1-Election petitioner in his Election Petition were taken note of. An application was made by the respondent No.1 under Section 63 read with Section 64 and 65 of the Indian Evidence Act, permitting him to adduce the secondary evidence in respect of agreement dated 22.1.2010, said to be executed by the petitioner with some other candidates. Such an application was opposed contending that the petitioner and respondents No. 7, 8 and 9 in the Election Petition were called upon to produce the original document which was said to be in their possession as was executed in between them, but they have said that they cannot produce the same, as the same was never executed by them and in fact denied the execution of any such document. For the purposes of proving the said document, the respondent No.1-Election Petitioner was required to produce the witnesses, such as notary before whom such an agreement was executed and some other witnesses. Such a prayer was rejected by the Election Tribunal. The respondent No.1- Election petitioner thereafter challenged the said order before this Court in a writ petition, but in fact no interim stay was granted by this Court in the said writ petition, as a result, the Election Tribunal directed recording of the evidence of the parties. On 30.8.2010, when the case was called by the Election Tribunal, the respondent No.1-Election Petitioner categorically contended that he is not willing to produce any witness. The petitioner who was respondent in the said Election Petition was called upon to produce his witnesses. On 22.11.2010, the statements of witnesses of the petitioner were recorded. 6. The fact remains that the writ petition filed by the respondent No.1-Election Petitioner against the order dated 12.7.2010, Writ Petition No.9605/2010, came up for hearing before this Court on 3.2.2012 and a partial prayer made by the respondent No.1-Election Petitioner was allowed with a direction that on payment of process, the witnesses would be called and examined by the Election Tribunal. Pursuance to such order of this Court, it appears that permission was granted to the respondent No.1-Election Petitioner, his right to adduce evidence was restored and such witnesses were examined. After recording of the evidence of the respondent No.1-Election Petitioner, the matter was heard and order was passed. 7. As is pointed out, it was the specific allegation made by the respondent No.1-Election Petitioner that there was an agreement between the petitioner and three other candidates, who agreed that they will support the petitioner in the election of Sarpanch of the Gram Panchayat. The allegation is that because of this, the respondent No.1- Election Petitioner could not secure more votes. Whether such is a corrupt practice or not and whether on account of such an agreement, the smooth election process was vitiated on account of which the election of the petitioner was required to be declared as null and void are the mute questions which are to be examined. 8. The State Government has made the specific Rules known as M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the Rules for brevity). 8. The State Government has made the specific Rules known as M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as the Rules for brevity). The corrupt practices are defined under Rule 22 of the aforesaid Rules, which read thus :- "22. Corrupt Practices.- The following shall be deemed to be corrupt practices for the purposes of these rules :- (i) Bribery as defined and explained in clause (1) of section 123 the Representation of the People Act, 1951 (No.43 of 1951). (ii) Undue influence as defined in clause (2) of section 123 of the Representation of the People Act, 1951. (iii) The systematic appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting on grounds of caste, race, community or religion or the use of or appeal to, religious symbols or, the use of or appeal to national symbol such as the national emblem, for national flag, for the furtherance of the prospects of that candidate's election. (iv) The publication by a candidate or his agent or by any other person with the consent whether direct, indirect or implied of the candidate or his election agent of any statement of fact in relation to the personnel character or conduct of any candidate, or in relation to the candidature, or withdrawal from contest of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election. (v) The hiring or procuring whether on payment or otherwise of any vehicle or vessel by a candidate or his agent or any other person with the consent of the candidate or his election agent for the conveyance of any elector other than the candidate himself, and the members of his family or his agent, to or from any polling station provided in accordance with the rules made under the Act : Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to or from any such polling station, shall not be deemed to be a corrupt practice under this clause and if the vehicle or vessel so hired is a vehicle or vessel not propelled by a mechanical power : Provided further that the use of any public transport vehicle by an elector at his own cost for the purpose of going to or coming from, any such polling station shall not be deemed to be a corrupt practice under this clause. Explanation.- In this clause the expression 'vehicle' means any vehicle used or capable or being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise. (vi) The holding of any meeting in which intoxicating liquors are served. (vii) The issuing of any circular, placard or poster having a reference to the election which does not bear the name and address of the printer and publisher thereof. (viii) Personation at election as defined in Section 171-D of the Indian Penal Code, 1860. (ix) The employment or connivance at the employment of any Panchayat officer or servant or an employee as mentioned in sub- clause (d) of clause (1) of Section 36 of the Act as an agent for canvassing. (x) Acting of any Panchayat Officer or servant of an employee as mentioned in sub-clause (d) of clause (1) of Section 36 of the Act as an agent in connection with the election of the candidate." 9. Rule 21 of the Rules aforesaid prescribed the ground for declaring the election to be void. An agreement in between two candidates taking part in the elections, indicating that one of the candidate is supporting the other candidates, is not a specific corrupt practice prescribed under Rule 22. Rule 21 of the Rules aforesaid prescribed the ground for declaring the election to be void. An agreement in between two candidates taking part in the elections, indicating that one of the candidate is supporting the other candidates, is not a specific corrupt practice prescribed under Rule 22. If at the time of filing the nomination, some other candidates have also filed the nomination, but even when the date was available, they have not withdrawn their candidature, they can always support one of the candidate if they are not willing to take part actively in the election. That being so, in the democratic process if such event takes place, it is not treated to be a corrupt practice and that is why it has not been mentioned under Rule 22 of the aforesaid Rules, as a corrupt practice. It would become a corrupt practice had it been a case that on account of bribery or some other reasons, a candidate actively taking part in the election waives his right to contest and support any candidate. There should be specific allegation to that effect and it is not only the allegation, but a strict proof of the same which is needed to be produced for holding that on account of such illegal method, some of the candidates were won over and in the election, success was obtained by the returned candidate. In the entire discussions made by the Election Tribunal, nothing is said about such a fact. The order impugned deals with such corrupt practices by framing the issues in that respect, which read thus :- 10. In respect of issue No.1, the Election Tribunal has categorically recorded the finding that the respondent No.1-Election Petitioner has failed to prove such an allegation of corrupt practice. The issue No.2 was with respect to making of an agreement. Ex.P/7 was the document of agreement said to be produced before the Election Tribunal in proof of the fact that there was an agreement in between the petitioner and some of the candidates, who too were taking part in the election proceedings. Though the original of the said document was not available only the notary was got examined, who said that such an agreement was executed. The other persons who were the parties to the said agreement though were made respondents were not called nor examined. Though the original of the said document was not available only the notary was got examined, who said that such an agreement was executed. The other persons who were the parties to the said agreement though were made respondents were not called nor examined. Such a document was not confronted to the petitioner and, therefore, that agreement was not to be treated as proved. In absence of such a strict proof, it was not to be held that the petitioner was involved in the corrupt practices. In a democratic process of election, unless there is conclusive proof of such corrupt practices, a returned candidate is not to be thrown over board because of involvement of such corrupt practices otherwise his valuable right to take part in the election process would be marred. Such findings are not required to be recorded lightly without the strict proof of the same. For the aforesaid reason, the findings recorded by the Election Tribunal cannot be sustained. 11. The last issue was decided in favour of the respondent No.1-Election Petitioner only because the election of the petitioner was set aside on account of recording of the findings in issue No.2. Since the findings recorded in Issue No.2 are not sustainable in the eye of law, the findings in issue No.3 have to go. 12. As a consequence, the writ petition is allowed. The order dated 16.7.2014 is hereby set aside. However, as the term of the Panchayat has come to an end, it is not necessary to direct continuance of petitioner as Sarpanch of the Gram Panchayat. The officiating arrangement if made by the authorities for continuance of Panchayat proceedings will continue till the fresh elections of the Sarpanch are held and a new Sarpanch is elected. 13. The writ petition stands allowed to the extent indicated herein above. There shall be no order as to costs.