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2019 DIGILAW 455 (MP)

Vijay Singh v. Kishore

2019-06-27

SUBODH ABHYANKAR

body2019
ORDER : 1. This civil revision has been filed by the applicant under Section 26 of the M.P. Municipalities Act, 1961 (for short “Act, 1961”) against the judgment dated 2.1.2018 passed in the Election Petition No. 03/2015 by the District Judge, Hoshangabad whereby the learned District Judge in the election petition filed by the applicant under Section 20 of the Act, 1961 has dismissed the same. 2. In brief the facts of the case are that on 22.1.2015 election for the ward members of the Municipalities Seonimalwa District Hoshangabad took place. The ward No. 4 of the same was reserved for scheduled caste in which applicant-Vijay Singh contested as a candidate of Bhartiya Janta Party (BJP), whereas respondent No. 1-Kishore contested the same as a candidate of Indian National Congress. In the said election the applicant got 507 votes whereas the respondent No. 1 received 643 votes and having received the maximum number of votes the respondent No. 1 was declared as return candidate. Being aggrieved with the election of the respondent No. 1, the applicant preferred an election petition under Section 20 of the Act, 1961 in which the respondent No. 1 also filed his reply, however did not examine himself during the course of the trial. The learned Judge after recording the evidence of the applicant has dismissed the election petition vide impugned judgment 2.1.2018 and being aggrieved with the same, this revision revision has been filed before this Court. 3. Learned counsel for the applicant has assailed the impugned judgment solely on the ground that the respondent No. 1/return candidate in his nomination form which was filled by him before the election, he had left many columns blank and wrong entries were made, but the learned Judge of the trial Court has lightly brushed aside the same on the ground that according to the respondent No. 1 since he is an illiterate person having studies only till Class-V had obtained assistance of other persons to fill up the form. It is further held by the learned Judge that the entries which have been pointed out by the election-petitioner are not so important so to effect the election of the respondent No. 1, hence the same can be ignored. 4. It is further held by the learned Judge that the entries which have been pointed out by the election-petitioner are not so important so to effect the election of the respondent No. 1, hence the same can be ignored. 4. Learned counsel for the applicant has also relied upon the notification dated 28.5.2014 issued by the Election Commission of Madhya Pradesh regarding the manner in which the form has to be filled up by a candidate. Learned counsel for the applicant has also drawn the attention of this Court to para-2 of the said notification in which it is provided that every candidate shall submit affidavit by filling each and every column of the format and if in any particular column the information is not applicable “Nirank” then it has to be mentioned as “Nirank.” It is also mentioned that if it is found by the Returning Officer that any column is not filled up, he will ask the candidate to fill the same and even if the column is left blank despite intimation, in that case his nomination can be cancelled at the time of scrutiny. Learned counsel for the applicant has further submitted that in the nomination form (Ex.P-3) in most of the column the respondent No. 1 has mentioned the word “Shoonya” instead of word “Nirank” as has been directed by the Election Commission. Learned counsel for the applicant has also drawn the attention of this Court to the various clauses of the format in which according to the applicant wrong information has been furnished by the respondent No. 1. 5. In particular, learned counsel for the applicant has submitted that in respect of the immovable properties, the respondent No. 1 has stated in S. No. 6 of the affidavit that he does not own any two wheeler, four wheeler or any vehicle and in respect of the jewellery or any such valuable goods, the column has been left blank. In respect of the fixed assets in para-2 it is stated that he has no fixed assets and has self own property, however he has stated that he has some property, which he has inherited, however in the same column regarding the fixed assets in column No. 6 which refers to the total valuable of the fixed assets, the said column has been left blank. In respect of the dues towards the electricity department it is mentioned as “Shoonya.” It is further submitted that an FIR under Section 426 of IPC has also been registered against the respondent No. 1 in the year 2017 and its intimation has also not been given in the affidavit as in respect of the declaration wherein the details regarding the criminal cases, if any, has been sought, it is mentioned as “Shoonya.” Counsel has further submitted that in the affidavit in para-9 (kha) again wrong information has been given regarding the electricity bills as in the affidavit it is mentioned that there are no dues, whereas as per Ex.P-15 which has been obtained by the applicant under RTI Act a recovery of electricity bill is still pending against the respondent No. 1 by the Electricity Department. It is further submitted that in para-12 of the impugned judgment the learned Judge has given a wrong finding regarding the fact that the respondent No. 1 is only Class-V passed and he has taken assistance of other persons in submitting the form. In such circumstances even if certain columns have not been filled in, that would not make any difference on the merits of the case. The petitioner has also relied upon the judgment of the Coordinate Bench of this Court in the case of Sunder Singh Bhandari vs. Smt. Neena Vikram and Others passed in Election Petition No. 31/2014 whereby the Indore Bench of this Court has clearly held that the nomination form cannot be left blank. 6. On the other hand learned counsel for the respondent No. 1 has opposed the prayer of the applicant and has submitted that no illegality has been committed by the learned Judge in passing the impugned judgment, as the evidence has rightly been appreciated by him. It is further submitted that the applicant himself was not in a position to prove his own case as such the impugned judgment cannot be challenged, hence it is prayed that the civil revision be dismissed. 7. Learned counsel for the respondent No. 2 has also opposed the prayer of the petitioner. 8. Heard the learned counsel for the parties and perused the record. 9. 7. Learned counsel for the respondent No. 2 has also opposed the prayer of the petitioner. 8. Heard the learned counsel for the parties and perused the record. 9. Since the only point raised by the petitioner is one of wrong acceptance of nomination paper, before adverting to the merits of the case, it would be germane to refer to the relevant provisions governing the nomination paper and the procedure which is to be followed for filing of the same, the same read as under:- Section 22 of the M.P. Municipalities Act, 1961: “22. Grounds for declaring election or Nomination to be void - (1) Subject to the provisions of sub-section (2) if he is of the opinion:- (a).......... (b).......... (c).......... (d) that the result of the election, or nomination in so far as it concerns a returned candidate has been materially affected:- (i) by the improper acceptance of any nomination. (ii) by the improper acceptance or refusal of any vote or reception of any vote which is void. (iii) by the non-compliance with the provisions of this Act or of any rules or orders-made there under save the rules framed under section 14 in so far as they relate to preparation and revision of list of voters, he shall declare the election or [nomination] of the returned candidate to be void.” Rule 24-A of the M.P. Nagarpalika Nircvachan Niyam, 1994: “24-A. (1) Each candidate shall furnish the information relating to - Declaration of criminal antecedent assets, liabilities and educational qualification:- (i) any pending criminal case in which he is charged and any disposed criminal case in which he has been convicted. (ii) the movable and immovable property of which he, his spouse and his dependent children are jointly or severally owners or beneficiaries. (iii) his liabilities to any public financial institution. (iv) his liabilities to the Central Government or the State Government. (v) the educational qualifications which he possesses, to the Returning Officer at the time of filing the nomination paper in an affidavit sworn by the candidate, in such form and in such manner, as may be specified by the State Election Commission.” Rule 28 of the M.P. Nagarpalika Nircvachan Niyam, 1994: “28. Scrutiny of nomination papers:- (1) On the date fixed for the scrutiny of nomination papers received under rule 25, the candidates, their election agents. Scrutiny of nomination papers:- (1) On the date fixed for the scrutiny of nomination papers received under rule 25, the candidates, their election agents. One proposer of each candidate, and one other person duly authorized in writing by the candidate, but no other person, may attend at the time and place appointed in this behalf under rule 21 and the Returning Officer shall given them all reasonable facilities for examining the nomination papers of all candidates which have been delivered as required by rule 25. (2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made with regard to any nomination and may either on such objections or on his own motion, after such summary inquiry if any, as he deems necessary, reject any nomination paper on any of the following grounds, that is to say: (a).......... (b).......... (c) that there has been a failure to comply with any of the provisions of rules 24, (24-A), 25, 26. (d)......” In the nomination form, in the last page it is provided as under:- ^^fVIi.kh 1 & 'kiFk i= ij fdlh 'kiFk dfe'uj ;k ÁFke oxZ eftLVªsV ds le{k ;k fdlh uksVjh ifCyd ds le{k 'kiFk yh tkuh pkfg,A fVIi.kh 2 & lHkh LrEHkksa dks Hkjk tkuk pkfg, vkSj dksbZ LrEHk [kkyh u NksM+sA ;fn fdlh en ds laca/k esa nsus ds fy;s dksbZ tkudkjh ugha gS rks] ;FkkfLFkfr ^^'kwU;** ;k ^^ykxw** ugha gksrk mfYYkf[kr fd;k tkuk pkfg,A fVIi.kh 3 & 'kiFk&i= Vafdr ;k lqikB~;:i ls lkQ&lkQ fyf[kr gksuk pkfg,A** Thus, it is apparent from the above that the election of a candidate can be rejected on the ground of improper acceptance of his nomination. 10. On perusal of the record this Court finds that the respondent No. 1, who has filed his reply/written statement in the election petition, but has not appeared in the witness box to support his reply/written statement. A perusal of the nomination form clearly reveals that the respondent No. 1, on more than one places has left the form blank and no entry has been made. It is also apparent that in the column regarding the assets of the respondent No. 1, he has mentioned that he does not own any self acquired property, whereas, in para-6 of his written statement he has clearly stated that he owns a house and all the taxes are being paid by him. It is also apparent that in the column regarding the assets of the respondent No. 1, he has mentioned that he does not own any self acquired property, whereas, in para-6 of his written statement he has clearly stated that he owns a house and all the taxes are being paid by him. He has also stated that no case has been registered against him, in which either cognizance has been taken or charge sheet has been filed in which the sentence is provided is either two years or more. Whereas, a copy of the FIR (Ex.P-18) has also been filed by the applicant which relates to a criminal case registered against the respondent No. 1 under Sections 420, 406, 120-B of IPC on 30.3.2017 and it is not known if the cognizance of the aforesaid offence has already been taken by the Court or if the charges have already been framed, and although its answer could have been given by the respondent No. 1 himself, but for the reasons best known to him he has chosen not to come to the Court for the purposes of cross examination. The order sheets of the trial Court also reveals that after giving due opportunity of hearing or to lead evidence, the counsel for the respondent No. 1 has declared that no evidence is required to be led by the respondent No. 1. 11. In the considered opinion of this Court all the discrepancies which have occurred in the nomination form of the respondent No. 1 could have been answered by him only and that is only after giving his appearance in the witness box as a witness and since he has refused to tender his evidence in the Court, it would be presumed that had he given his evidence in support of his reply/written statement, it would have gone against him, which is also the mandate of Section 114 (g) of the Evidence Act, 1872. Section 114 (g) of the Evidence Act reads as under:- “114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations: The Court may presume: .......... Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations: The Court may presume: .......... (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. ........” At this juncture reference is also made to the judgment rendered by the Hon’ble Apex Court in the case of Ramesh Kumar vs. Furu Ram, (2011) 8 SCC 613 : (2011) 4 SCC (Civ) 303, para-21 of the same reads as under:- “21. The respondent-defendants did not step into the witness box to give their version, which leads to an adverse inference that if the defendants had examined themselves, their evidence would have been unfavourable to them [vide Section 114 of the Evidence Act, 1872 read with Illustration (g) thereto.” Similarly, in the case of Afaq Hussain vs. U.P. SRTC, (2008) 5 SCC 715 , it is held as under:- “14. It is true that the High Court was not correct in relying upon an unproved statement made in the written statement. Pleadings are not proof. The witness examined on behalf of the respondent did not disclose as to which rule was violated by the appellant or why he had lost the confidence of the Management. Such a contention was required to be established by adduction of proper evidence.” 12. Thus, the Apex court has categorically held that written statement is not a form of evidence, and cannot be substituted for the evidence. In the case on hand, this Court also finds that the burden of proof has been discharged by the applicant by leading his evidence viz. Ex.P/3 the affidavit/nomination paper of the respondent no. 1 in which many columns have been left blank by the respondent no. 1, and in many columns, there were visible discrepancies, there was a clear misstatement in para-6 of the reply in which the respondent no. Ex.P/3 the affidavit/nomination paper of the respondent no. 1 in which many columns have been left blank by the respondent no. 1, and in many columns, there were visible discrepancies, there was a clear misstatement in para-6 of the reply in which the respondent no. 1 has stated that he owns a house and its taxes are being paid but the same runs contrary to Table No. 8 of the nomination form which refers to the assets and liabilities and in the column of self acquired immovable property, it is mentioned as “zero.” Similarly, in the Ex.P/3 affidavit, in para-9 (kha) again wrong information has been given regarding the electricity bills as in the affidavit it is mentioned that there are no dues, whereas as per Ex.P-15 which has been obtained by the applicant under RTI Act a recovery of electricity bill is still pending against the respondent No. 1 by the Electricity Department. Reference may be had to the case of Sunder Singh Bhandari (supra) in this regard. 13. This Court also finds that the finding given by the learned Judge of the trial Court in para-12 of the impugned judgment is perverse, as the learned Judge has held that the respondent No. 1’s statement is that he has stated that he is only Class-V pass and he filled the form with the assistance of some other person, hence even if any wrong information is mentioned then that would not be relevant if the same is not important. On due perusal of the written statement submitted by the respondent No. 1 this Court is unable to understand as to how the learned Judge of the trial Court has come to such a conclusion as stated in para-12. Although, a close scrutiny of the evidence adduced by the applicant reveals that a suggestion has been put to him that the respondent No. 1 is only Class-V pass and he filled the form with the assistance of some other person but if the suggestion was made to the applicant then it was incumbent upon the respondent no. 1 to state the same on oath in the witness box but he has conveniently avoided the same. 14. In the written argument submitted by the respondent No. 1 in the present civil revision it is mentioned that the learned Judge has rightly appreciated the oral evidence of the respondent No. 1. 1 to state the same on oath in the witness box but he has conveniently avoided the same. 14. In the written argument submitted by the respondent No. 1 in the present civil revision it is mentioned that the learned Judge has rightly appreciated the oral evidence of the respondent No. 1. It is apparent that the counsel appearing for the respondent No. 1 was also oblivious of the fact that the respondent No. 1 has not stepped into witness box to depose or to answer the questions which could have been put to him. 15. In view of the aforesaid discussion, this Court has no hesitation to hold that the applicant has been able to make out a case for setting aside the election of the respondent no. 1 the returned candidate on the ground of improper acceptance of his nomination by the returning officer as the information furnished by the respondent no. 1 in his nomination was not in accordance with Rule 24-A of the M.P. Nagarpalika Nirvachan Niyam, 1994 as the same suffered from non-disclosure of material information, was incomplete, vague and false. Accordingly, the impugned order dated 02.01.2018 passed by the District Judge, Hohsangabad is hereby set aside and consequently, the election of the returned candidate, the respondent no. 1 Kishore is also hereby set aside. 16. Accordingly, revision stands allowed with no order as to costs.