Sunil Kumar Sinha, J.@mdashThe Petitioner, a defeated candidate, has called in question the validity of election of Respondent as the member of M.P. Legislative Assembly from 127, Raipur Gramin Vidhan Sabha Constituency, which was held on 25.11.1998. The result of the said election was declared on 28.11.1998, in which, the Respondent was declared elected by a margin of 15,751 votes.
2. The election is challenged mainly on the ground of "corrupt practice" and "undue influence" allegedly committed by the Respondent and other persons with his consent. It is pleaded that the Respondent was a sitting M.L.A., of Bharatiya Janata Party and he got issued the No Objection Certificate for a piece of land situated in village Hirapur Jarway for giving the same to the local Sikh Community for construction of Guru Singh Sabha Hall. It is specifically pleaded that on 13.11.1998, the Respondent being M.L.A., misused his power/office for furtherance of his election prospects by gratifying and inducing the voters to caste their votes for him by fulfilling the demand of issuance of said No Objection Certificate (for short "NOC") through the Sarpanch namely Pawan Singh Thakur who also belonged to B.J.P. It is further pleaded that in fact the portion of the said land bearing Khasra No. 234 area 1.50 acres was left as funeral ground and the Respondent directed the said Sarpanch to Issue NOC, for this land in favour of Sikh Community for construction of Guru Singh Sabha Hall and the certificate was issued on 13.11.1998 by the Sarpanch to the President of Sikh Community namely Shri Surendra Singh Walia. It is also pleaded that though the application for issuance of NOC was rejected about a month ago by Gram Panchayat, but subsequently it was illegally issued by the Sarpanch at the behest and instance of the Respondent without legal and valid resolution. The further allegations are that when this fact came to the knowledge of the villagers, there was some agitation and ultimately some report was lodged to the concerned Police Station. It is alleged that by issuing such an illegal certificate, the Respondent successfully gained favour of the Sikh Community who arranged function/programme to weigh the Respondent and his wife by coins among the public making atmosphere in his favour and all this was a corrupt practice committed by the Respondent within the meaning of Section 123 (1) (A) (b) (ii) and Section 123 (l) (B) (b) of The Representation of the People Act, 1951 (hereinafter referred to as the Act). The further allegations are that the Respondent got printed the identity slips of voters, in which his name and party symbol were contained and an appeal to cast vote in his favour was also contained. It is pleaded that by distribution of such identity slips to the voters, he has influenced them which has materially affected the result of election, so far as it relates to the returned candidate, and this amounts to undue influence within the meaning of Section 123 (2) of the aforesaid Act.
3. The Respondent has denied the allegations raised by the Petitioner. At preliminary stages, he had also taken the grounds like limitation and non-disclosure of cause of action etc., and had prayed for rejection of petition under Order 7 Rule 11 Code of Civil Procedure, but all those objections were overruled by various orders of this Court and ultimately on 30.8.2002. the following agreed issues were framed for determination in this election petition :
1. Whether no objection certificate was issued by Sarpanch of Hirapur village for grant of land in favour of the members of the Sikh Community for construction of Guru Singh Sabha Hall at the instance, direction or behest of the Respondent and as such the Respondent has committed corrupt practice within the meaning of Section 123 (1) (A) of the Representation of the People Act, 1951 ?
2. Whether the land was given to the members of the Sikh Community at the instance of the Respondent for furtherance of his election prospects and obtain votes of the Sikh Community, which act amounts to a corrupt practice within the meaning of Section 123 of The Representation of the People Act, 1951 and the election of the Respondent is liable to be declared void under Sub-section (1) (b) of Section 100 of Representation of the People Act, 1951 ?
3. Whether the identity slips containing the party symbol, name of the party and an appeal to the voters to cast their votes in favour of the Respondent were got published and printed by the Respondent or his agent or any other person with the consent of the Respondent or his agent and as such the Respondent is guilty of corrupt practice u/s 123 of The Representation of the People Act, 1951 and the election is liable to be declared void under Sub-section (1) of Section 100 of the Act ?
4. Whether the distribution of identity slips was with the intention of undue influencing voters and thereby materially affected the result of the election so far as it relates to the returned candidate ?
4. To prove the allegations, the Petitioner examined as many as 9 witnesses and the Respondent examined himself only. At the arguments, learned Senior Counsel for the Petitioner mainly argued that it has been established on record that NOC was issued by the Sarpanch of Gram Panchayat Hirapur Jarway namely Pawan Singh Thakur (P.W. 6) on the instructions and at the behest of the Respondent and due to issuance of such a certificate by him on 13.11.1998, the voters of Sikh Community were happy and they had cast their votes in favour of the Respondent. He referred to various paragraphs of evidence of Petitioner (P.W. 1) and also the evidence of Pawan Singh Thakur (P.W. 6). He also argued that just prior to the date of polling, voter identity slips in form of Ex. P. 6 were distributed by the agents of the Respondent, in which, the symbol of B.J.P. (Lotus) and an appeal was also printed which says that his submission was that printing of such objectionable material at the instance of the Respondent was also an act of corrupt practice and the distribution of the same has unduly influenced the voters which has materially affected the results of the election. He submitted that when such slips came to the knowledge of the voters, the complaints were made to the Presiding Officers of Polling Booth Nos. 127/115, 127/116 and 127/117, but no actions were taken by them. He submitted that this matter was represented before the District Election Officer, Raipur on 23.11.1998 with a copy to Chief Election Officer and Election Commission of India (Ex. P.7). His submission was that both these acts are the instances of corrupt practice as defined u/s 123 (1) (A) (b) (ii) and Section 123 (1) (B) (b) of the Act and the distribution of such slips among the voters further amounts to creating undue influence on them. He further submitted that by printing such an objectionable material at the instance of the Respondent, the Respondent has also violated the norms and guidelines issued by the Election Commission of India and also the Code of Conduct which further vitiates the election of the Respondent.
5. Per contra, learned Senior Counsel for the Respondent made two fold arguments. His first submission was that the allegations pertaining to corrupt practice are serious allegations, on proof, the consequence of which is debarring a person from contesting the future elections, therefore, a very high degree of proof is required to substantiate such allegations. He referred to many decisions of the Apex Court, which I shall be dealing with at the later stage. His submission was that the Petitioner has failed to establish any of the allegations made against the Respondent by such degree of evidence which is required in an Election Petition, in which the allegations of corrupt practices are made. Secondly, he argued that the Petitioner has been failed to prove the issues raised by leading positive evidence. No evidence has been produced to show as to whether any such NOC was, in fact, issued or not. He submitted that the certificate or the copy of the Certificate has not been produced before the Court to substantiate this contention. He strongly submitted that there is still doubt as to whether, in fact, any such NOC is in existence or not ? He submitted that if the Certificate is said to be in possession of the persons of Sikh Community, particularly in possession of its president. Shri Surendra Singh Walia, he should have been called upon to produce the original certificate or a copy thereof or at-least he should have been called upon to adduce oral evidence. His over all submission was that it has not been established that such a certificate was issued and if it was issued, the issuance was under the instructions and at the behest of Respondent and further that due to such act, the voters of Sikh community were gained over by the Respondent and he was benefited or elected by their votes. He also submitted that the voter identity slips (Ex. P.6) have not been proved to be published or distributed, either by the Respondent or by his agents. His submission was that though the printer who printed the election material (including the slips) of the Respondent was cited as a witness but he was also not examined and in this manner it is not established that the slips in the nature of Ex. P.6 were printed or distributed by the Respondent or his agents. His submission was that this document appears to be concocted and made for the purpose of filing Election Petition. His over all submission was that no documents have been produced from the proper custody and all the documents have been produced by different sources, which may not be categorized as primary evidence and create doubts on their identity and the Petitioner has been failed to prove his case on facts alleged by him.
6. I have heard Learned Counsel for the parties at length and have also perused the records of the petition.
Findings onissues No. 1 and 2
7. In
8. In
9. In
10. In
11. In
12. In
13. Therefore, it is clear that in an action under the provisions of The Representation of the People Act, 1951, the allegations of corrupt practice are of serious nature as the consequence upon proof thereof, results into a statutory disqualification for a candidate to contest further elections for statutory period. The pleadings in relation to corrupt practices must be clear, specific and unambiguous, particularly pleading the instances with a greater amount of certainty i.e., they should not be vague and general and when the same is alleged to have been committed by an agent or any other person than the returned candidate, in all such cases action as well as consent of the candidate must be pleaded in order to connect the candidate with the alleged corrupt practice. So far as the proof is concerned, a very high degree of proof is required to establish the allegations of corrupt practice as it must be proved beyond all reasonable doubts as is required in a criminal trial. Such degree of proof, required to establish allegations of a corrupt practice, which are of quasi-criminal nature, cannot be replaced by the doctrine of preponderance of probabilities as are required in a civil action and with this gravity, the Courts are required to examine the allegations of corrupt practices by further applying the strict rule of pleadings and proof.
14. In case on hand, so far as the allegations about issuance of NOC dated 13.11.1998 are concerned, the first very important circumstance is that no such, NOC or copy thereof has been produced before this Court so as to hold that such a document was, in fact, issued in favour of Sikh Community by the Panchayat or the Sarpanch of village Hirapur Jarway, as is alleged by the Petitioner. The law is well settled on the point that if the existence of a document is a fact in issue, Its existence must be proved by production of the same as primary evidence or by producing a copy thereof as secondary evidence, as the case may be. In this case, even no efforts have been made by the Petitioner to produce such evidence before the Court. It only comes in the evidence of the Petitioner (P.W. 1) that he could come to know that on the said date, the NOC was issued by the Sarpanch on the verbal instructions given by the Respondent and when the persons of Sikh Community started raising construction on the said piece of land, an objection by the villagers was raised and a report to this effect was lodged in Amanaka Police Station, Raipur, on 27.11.1998. The copy of the said report has been proved on record as Ex. P. 1. This report bears the signature of the Sarpanch Pawan Singh Thakur and in the subject column of the report, it is written that further comes in the body of the report that some instructions were given to the author to give NOC regarding some portion of Government land bearing Kh. No. 234 area 1.50 acres and the NOC was given on 13.11.1998 to one Surendra Singh Walia who is shown to be Gurudwara Pramukh. In this regard, Pawan Singh Thakur, (P.W. 6), states that in the month of November, 1998, the Respondent had said to him that the persons belonging to Sikh Community are praying for certain piece of land for extension of their Gurudwara, which is to be given to them. He stated that during these talks, only two persons (he himself and the Respondent) were there and thereafter only, on 13.11.1998, some persons of Sikh Community came over to him and they started pressurizing him, then on the letter pad of Gram Panchayat, he issued a certificate to this effect that If this land is given to them, the Gram Panchayat has no objection. He further states that thereafter when the persons of Sikh community started raising construction, there was some dispute and the matter was reported to the Police by filing an application vide Ex. P-1. He stated that he had handed over this document Ex. P-l to the Petitioner as he was one of the contesting candidates from the aforesaid Legislative Assembly Constituency. About the possession of the certificate, it has been asked to the Petitioner in his cross examination and the Petitioner has said that the certificate was given to Surendra Singh Walia who was the President of Sikh Samaj and the certificate must be in his possession. He had admitted that he had not tried to obtain the copy of said certificate and the certificate is not produced in the Court. Except this evidence, about the existence of the certificate, no other evidence has been led by the Petitioner. Even the said President Shri Surendra Singh Walia has not been produced as a witness, who may have thrown light on the incidents and who may have produced the certificate before the Court, to look into the contents thereof and certainly on this point, an adverse inference should be drawn against the Petitioner. Not only this, it has also not been brought on record as to what was the legal effect of the said document to which the Petitioner is giving such importance. As per the material produced before this Court, it appears that the aforesaid piece of land is a Government land falling within the territorial jurisdiction of Gram Panchayat Hirapur Jarway and till date, the same has not been allotted to the Sikh community, it also comes in the evidence of P.W. 6 that in the year 1995, this piece of land was demanded by the persons of Sikh Community and a proposal in the Gram Panchayat was brought in this regard but It was unanimously rejected and at that time also this witness Pawan Singh Thakur (P.W. 6) was the Sarpanch of Gram Panchayat. Admittedly the Gram Panchayat is having no authority to allot a government land. To issue a Patta of government land in favour of any person, a regular proceeding has to be drawn and the land can be allotted only after completion of such proceeding by the concerned revenue authority and at the most, the Gram Panchayat can only have an objection before the said authority which it can furnish upon a proclamation in this regard. Before that stage, there appears to be no much importance of any such document alleged to have been issued either by the Gram Panchayat or by the Sarpanch of the Gram Panchayat. In the facts and circumstances of this case, particularly in the circumstance that no such certificate has been produced before this Court and no such further evidence has been adduced to show about existence of such a certificate, it cannot be held that any such certificate was issued by the Sarpanch of the Gram Panchayat and on the basis of such certificate the persons of Sikh Community were benefited. Apart from the above, the Petitioner has also filed the copy of another application written to the S.H.O., Police station Amanaka by the villagers, Ex. P-2, in which they have made complaint that certain illegal construction is being raised by the persons of Sikh community over the land which is a grave-yard. It appears that this application was forwarded by the S.H.O. to the Tahsildar, on which, a Revenue Case No. 1-A/68/98-99 was registered and in this case, a report of Patwari was filed as Ex. P-3 which contains that the illegal construction/encroachment was made by Sikh people saying that the Gram Panchayat has issued NOC in this regard. But on this also, it cannot be said that in fact a written certificate was issued to the persons of Sikh community and that certificate, if it was issued, was issued on the instructions and at the behest of the Respondent. The evidence of P.W. 6 Pawan Singh Thakur does not appear to be reliable on this point that in fact he has issued certain NOC and that the NOC was issued on the instructions of the Respondent. In para 3 of his cross examination, he admits that though he was verbally directed by the Respondent, but, when the Respondent had verbally directed him, he does not remember the date. However, he says that the date is prior to 13.11.1998. If we look into the contents of Ex. P. 1, it further appears in its "D to D" portion that P.W. 6 (author) says that he has given the NOC on his own will and lastly on "C to C" portion, it contains that the certificate is being produced before the Police Station. In this regard, when a clarification was taken by the Court, this witness explains in para 4 of his cross examination through Court that in the Police station, he had only given an application (Ex. P. 1) but he has not produced any such certificate and he further says that under the pressure he has given such an application and he cannot say as to how he has written the "C to C" portion. However, he has admitted that the portion in "D to D" has rightly been written. In paras 5 and 6 of his cross examination, he has admitted that he knew that the Respondent is not an Officer above him and he has not pressurized him to issue any such certificate. He has also stated that no Revenue Officer has called him for issuance of such a certificate. He has also admitted that he knows that the land belonging to "Kabristhari" or "Smasan" cannot be given to anybody by the Panchayat. In these facts and circumstances and on the face of entire evidence of this witness, It does not appear to me that the version given by this witness, that he was instructed by the Respondent to issue such a certificate, is true and correct and even if this witness has issued any such certificate, though the same has not been produced before this Court, the same does not appear to be issued or given on the instructions and at the behest of the Respondent.
15. Even otherwise also a question arises, as to whether only on the ground of issuance of the alleged NOC at the behest of the Respondent, can it be said that the Respondent has committed a corrupt practice? For this a reference has to be made to the judgment of the Apex Court rendered in the matter of Harjit Singh (2) (supra). In the said case, as stated above, the Supreme Court has laid down that if a Minister redresses the grievances of 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 promise from the voters in return, as a condition for his help. The Supreme Court said that in such matters, an element of "bargaining" in what the successful candidate was alleged to have done should be established and it must be established that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. In the present case, assuming for the time being, that the NOC was issued by P.W. 6 on the instructions of the Respondent, but it has neither been pleaded nor established by the Petitioner that there was an element of "bargaining" between the Respondent and the persons of the Sikh Community that if the Respondent manages for them the said piece of land the persons of that community will vote in favour of the Respondent in the coming election. In any case, literally or statutorily the alleged action cannot be classified to be a corrupt practice within the meaning of the aforesaid Act in absence of pleading and proof regarding element of bargaining between them.
16. Therefore, the Petitioner could not establish that the aforesaid NOC was issued by the Sarpanch on the instance and direction or at the behest of the Respondent and that the land was given to the members of the Sikh community at the instance of Respondent for furtherance of his election prospects and obtain votes of Sikh community amounting to corrupt practice within the meaning of Section 123 of the Representation of People Act and I hold it accordingly and issue Nos. 1 and 2 are replied accordingly.
Findings on issue Nos. 3 and 4
17. These issues relate to allegations regarding printing and publication of objectionable voter identity slips filed as Ex. P.6. The case of the Petitioner is that such slips were got printed and distributed by the Respondent to the voters in which an appeal was made in the manner indicated above. There is no dispute that such identity slips were objectionable, but the question arises as to whether it has been established on record that such slips were printed on the instructions of the Respondent and they were distributed to the voters by his agents with his consent ? In this regard, the Petitioner has filed a copy of Cash Memo Ex. P.8, submitted by the Respondent to the election office alongwith his election expenditure, in which it is mentioned that the Respondent got printed 248000 voter identity slips by paying Rs. 30,000/- to one Kaiyumi Printing Press. Raipur. The argument advanced is that on the basis of this document, it is proved that such slips were printed by the said Press on the instructions of the Respondent. This argument cannot be accepted on the face of material available on record. In the list of witnesses filed by the Petitioner, the Petitioner had cited the name of proprietor of Kaiyuimi Printing Press, Raipur as one of his witnesses and P.F. was also paid for him but the said witness was not examined on account of non-service of notice in the first instance and ultimately he was left over by the Petitioner and no further efforts were made to produce him. If the said witness would have been examined by the Petitioner, he would have disclosed this fact as to whether the document Ex. P.6 was printed and published through his Press and if the same was printed, whether It was printed on the instructions of the Respondent or his agents and for those printings only he had received money through the Receipt Ex. P.8. In absence of such evidence, it cannot be said that the voter identity slips (Ex. P.6) were those slips, which were printed by Kaiyumi Printing Press and for that the payments were made by the Respondent. It is a matter of ordinary prudence that such slips can be printed from any printing press and merely on production of such slips, it cannot be established that they were printed on the instructions of the Respondent or his agents. Apart from that, the Petitioner has also filed a copy of complaint sent to the District Election Officer, Raipur, alongwith the Annexures of two such slips printed on the names of voter Usha, daughter of Krishna and Rekha, daughter of Krishna having voter Nos. 293 and 294. The complaint has been proved as Ex. P.7. Though this report contains allegations regarding those voter identity slips, but none of these voter, whose printed slips have been annexed with the complaint, were examined by the Petitioner. If these voters or atleast the voter named in Ex. P-6 i.e., Govind s/o Harlal, voter No. 1, would have been examined, they would have stated as to whether such slips were distributed to them and who distributed those slips to them. In absence of examination of any of the voters, whose names are contained in the slips, it cannot be established that these slips were distributed to those voters, that too either by the Respondent or by his agents and the Respondent was responsible for distribution of such objectionable material, which according to the Petitioner was an instance of corrupt practice. The other evidence in this regard are the complaints made by the Petitioner to the Presiding Officers of Polling Booth Nos. 127/255 and 127/269 and two other complaints, one made by Shri Ajay Kumar, Voter No. 243 and the other jointly made by 2-3 persons to the Presiding Officers of various other Polling Stations. These written complaints have been marked as Ex. P-9, P-10, P-11 and P-12. The Presiding Officer of the Polling Booth No. 127/115, namely Govind Singh Kagji has been examined as P.W. 7 and the other Presiding Officers of Booth No. 127/116 and 127/101 namely Ganga Prasad Trivedi and Bahoran Baghel were also examined as P.W. 8 and P.W. 9. The overall outcome of their evidence is that they had received the above complaints regarding objectionable slips being used at their polling stations and they had mentioned in the complaints/reports that the information given to them are true. If we examine the contents of Ex. P-11, it would appear that one Ajay Kumar Dhamiaraj has made a report that he is the voter of Polling Booth No. 115 and the persons belonging to B.J.P. had given the voter identity slip to him in which it is printed that he should vote in favour of the B.J.P. candidate and the symbol of B.J.P. is also there and in this manner, his right of independent polling has been affected by the workers of B.J.P. On the face of copy of this report filed as Ex. P. 11, without conducting any enquiry, the Presiding Officer has written that the report is correct. Though this Presiding Officer has been examined as P.W. 7 but the voter, who lodged the report, has not been examined. This is not only surprising but it creates suspicion on the veracity and the contents of the document. Another important question is that how this document (Ex. P-11) and the other document of similar nature i.e., Ex. P-12 came to the possession of the Petitioner? Who handed over these documents to him and what was the purpose for the same? Whether those persons, whose names are contained in the document Ex. P-11 and P-12 i.e., Ajay Kumar Dharamraj, Gajendra Singh, Diwakar Gain and a fourth one whose name is not legible, were knowing that the (sic)ection is to be challenged on such grounds and these documents are to be handed over to the Election Petitioner. All these are unreplied questions. Not only this, the author of document Ex. P. 11 and authors of Ex. P. 12 the persons named above, have also not been examined to substantiate their contentions. In the facts and Circumstances, it cannot be said that the aforesaid slips were got printed by the Respondent or his agents and were distributed by them and in light of the evidence led by the Petitioner, it cannot be held that these facts have been proved beyond reasonable doubts as are required under the law for their establishment in an Election Petition where the allegations of corrupt practice are made. In fact, none of the material witness pertaining to these allegations like publisher and the authors of various complaints or the voters whose names are contained in the objectionable slips, filed before this Court, have been examined by the Petitioner and the fact regarding publication and distribution of such voter slips by the Respondent or his agents remains unproved and I hold it accordingly.
18. So far as the question of undue influence is concerned, as I have already held in the foregoing paragraphs that the Petitioner could not establish that the alleged voter identity slips were got printed either on the instructions of the Respondent or his agents with the consent of the Respondent and they were also not proved to be distributed by them, there appears to be no reasonable cause for holding that the Respondent or his agents had tried to influence the voters for casting their votes in favour of the Respondent and by this act they have committed undue influence on the voters interfering with the free exercise of their electoral rights. Since the printing as well as distribution at the instance of the Respondent or his agents with the consent of Respondent, has not been established by cogent and reliable evidence, it cannot be said that the Respondent or his agents are guilty of committing undue influence and the election of the Respondent vitiates on this count. Therefore, these issue No. 3 and 4 are also held to be not proved.
19. So far as the arguments pertaining to violation of modal code of conduct and directions of Election Commission are concerned, suffice it to say that no such violations committed by the Respondent have been established in this case. More over, the modal code of conduct are made for guidance of political parties and candidates which do not say what would be the consequence if any of the guidance is violated by the political parties and the candidates. In view of the specific provisions of Section 100 of the Act, it is clear that even if there are violations of code of conduct either by the political party or its candidate, such violations can only be brought to the notice of Election Commission of India to initiate appropriate action against such party or candidate. But the same cannot be adjudicated by the Court In view of the provisions of Section 100 of the Act. (Please see Bashiruddin Halhipparga v. Rajasekhar Basavaraj Patil and Ors. AIR 2004 Kar 471). The Supreme Court also held in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman AIR 1985 S.C. 1233 that the directions issued by the Election Commission though binding upon the Chief Electoral Officer cannot be treated as if they are law, the violation of which could result in the invalidation of the election, either generally or specifically in the case of an individual. Election Laws are self-contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, It would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that, it can take steps or direct that steps be taken over and above those which it is under an obligation to take under the law.
20. After careful scrutiny of oral and documentary evidence produced before me, as I have held while answering the issues, the Petitioner has been failed to prove his case beyond all reasonable doubts so as to hold the Respondent guilty of corrupt practice or that of causing undue influence on the free exercise of any electoral rights of the voters.
21. In the result, this Election Petition fails and is dismissed, However, in the facts and circumstances of this case, the parties are directed to bear their own costs.
