AI Structured Summary
Not yet generated for this judgment
Judgment
Vijay Kumar Shrivastava, J.—Petitioner was a candidate who contested the election from 148 Keshkal (Reserved for Scheduled Tribe) Legislative Assembly Constituency. He lost the election by a margin of 343 votes. This is an Election Petition u/s 80 of the Representation of the People Act, 1951 (henceforth "the Act") calling in question the election of returned candidate/Respondent No. 1 (Smt. Phulodevi Netam) filed by him.
The Election Commission of India vide notification dated 30.10.1998 notified programme as below for election from the said assembly constituency:
Programme Date
Last date of making nomination 06.11.1998
Date for scrutiny of nomination 07.11.1998
Date for withdrawal of nomination of candidature 09.11.1998
Date of Poll 25.11.1998
Date for counting of votes 28.11.1998
After polling and counting, Returning Officer declared the result of election on 28.11.1998 according to which Petitioner obtained 23,686 votes whereas Respondent No. 1 obtained 24,029 votes.
Petitioner in his election petition, inter alia, pleaded that on 23.11.1998, all the polling parties assembled at Keshkal to receive polling material and to move to their respective polling stations. Kisnu Ram Nag was appointed as Presiding Officer at Polling Station No. 10 of that constituency. He, along with his polling party reached the polling station before 12 noon on 23.11.1998. Dr. Devendra Kumar Netam was appointed as Presiding Officer at Polling Station No. 67 - Tenwsa, who reached there at about 1.00 p.m. on 23.11.1998. Indrajit Netam was appointed as Presiding Officer at Polling Station No. 122 - Sirpur and he reached along with his polling party at about 5.00 pm on 23.11.1998. On 23.11.1998 Respondent No. 1 reached Sirpur at about 6.00 pm and in the company of Dr. Devendra Kumar Netam went to the voters of village Sirpur and solicited their votes and requested to vote for her. On the same day at about 8.30 pm she went to Tenswa where in the company of Dr. Devendra Netam contacted the voters and they requested them to vote for Respondent No. 1. On the next day i.e. 24.11.1998 Respondent No. 1 in the evening at about 6.00 pm went to Keshkal and along with Kisnu Ram Nag approached the voters and requested them to vote for her. Respondent No. 1 for obtaining and procuring votes in her favour, took assistance of these officers and was succeeded in securing votes by adopting such a corrupt practice. In Keshkal Assembly constituency, a number of relatives of Respondent No. 1, who are holding government service, are posted and who were interested in the election. They were not removed from their posting despite written attempt made by the Petitioner. Respondent No. 1 opposed the application. She specifically denied the allegations of corrupt practice lodged against her by the Petitioner.
Following are issues: In following paragraph for recording findings evidence has been appreciated and reasons are recorded. Findings are shown against each of the issue.
Issue No. Issue Finding
1 Whether the relatives of Respondent No. 1 whose names are mentioned in paragraph - 5 of the Election Petition have actively participated in the campaign to further the prospect of Respondent No. 1 in the election? No.
2(a) Whether Respondent No. 1 committed corrupt practice as defined u/s 123(7) of the Representation of People Act and in the company of Dr. Devendra Kumar Netam went to the villages Sirpur & Tenswa and approached the voters on 23-11-1998 to seek votes for Respondent No. 1 as mentioned in paragraph 11 & 12 of the Election Petition ? No.
2(b) Whether Respondent No. 1 also in the company of Kishnuram Nag went to the village Keshkal and approached the voters on 24-11-1998 to cast votes in favour of Respondent No. 1?" No.
All these issues are intertangled; therefore, in order to avoid repetition, all of them are taken together for appreciation of evidence and recording of findings.
Mahesh Baghel (PW/1) in his statement deposed that mothers of Dr. Devendra Netam and Respondent No. 1 - Phulodevi Netam are sisters. Indrajit Markam is relative of Phulodevi. Undisputedly, Tulsi Das Netam whose name has been recorded in pleadings of both the parties due to some error as Tulsiram, is husband of Phulodevi. Phulodevi Netam (DW/1) admits that Dr. Devendra Netam is her maternal brother (cousin). She denied relationship with Indrajit Markam. Mahesh Baghel did not disclose how Indrajit Markam is related to Phulodevi, however, Indrajit Markam (DW/3) in his statement admits that Phulodevi is distantly related to him.
From the above evidence it is established that Indrajit Markam is distantly related to Phulodevi. Devendra Netam is maternal cousin brother of Phulodevi and Tulsi Das Netam is her husband.
Ashok Kumar (PW/2) in his statement stated that on 23.11.1998 Indrajit Markam and members of polling party asked Sukhlal Netam and Amit Verma to affix seal on "Panja Chap". In rebuttal, Indrajit Markam (DW/3) in his statement stated that after reaching polling station neither he left the polling station nor went to the village; he also denied that he canvassed in favour of Phulodevi. Phulodevi (DW/1) supports his statement. Ashok Kumar (PW/2) contested election twice, but, failed to state complete details of his own election. Sukhlal Netam and Amit Verma have not been examined. Ashok (PW/2) in cross examination states that he did not inform Mahesh Baghel that Indrajeet and others were asking Sukhlal & Amit to vote for Congress. In these circumstances, principle of preponderance of probabilities constrains me to disbelieve the evidence of Ashok Kumar (PW/2) and to accept the evidence adduced by other party in rebuttal.
Shravan Yadav (PW/3) in his statement stated that in the evening at about 6.00 pm Kishnu Ram Nag, Phulodevi, Sahid and Tahir were canvassing for votes. They were making request to a Marvadi for casting vote. Kisnu (DW/4) in his statement has stated that on 23.11.1998 he received polling material; and thereafter within a gap of 10 to 15 minutes he reached to his centre. After reaching the centre, he did not left the polling station up to completion of the polling. His statement has been supported by Phulodevi (DW/1). He denies having canvassed along with Phulodevi. Shravan Yadav (PW/3) at one place says that he is not in politics, he did not contest any election, and in the other place he admits that he contested the election twice but lost. He is neighbour of the Petitioner. In view of the infirmities present in his statement, evidence of opposite party is accepted to be correct.
Charansingh (PW/5) in his statement deposed that on 23.11.1998 at about 8.30 p.m. in the night Devendra Netam who was Presiding Officer accompanied with Phulodevi took part in canvassing and requested for casting vote for "Panja Chap". In his cross examination he stated that he only knew Devendra from 23.11.1998. He says that 23.11.1998 was the date of poll, whereas, correct date is 25.11.1998. According to Petitioner''s pleading, on 24.11.1998 Devendra Netam participated in canvassing. In rebuttal Dr. Devendra (DW/2) stated that after receiving polling material at around 4.30 pm he reached to his polling station and he did not leave polling station. He never went for canvassing along with Phulodevi. Phulodevi (DW/1) supports his statement. In view of contradictory, unnatural statement of Charan Singh (PW/5), the statement of Phulodevi (DW/1) and Dr. Devendra (DW/2) being probable are accepted to be correct.
Section 123(7) of the Act reads as follows:
Corrupt Practice.-(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate of his agent or, by any other person (with the consent of a candidate or his election agent), any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government and belonging to any of the following classes, namely:
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed.
(Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate''s election.)
Hon''ble the Apex Court while rendering judgment in Hardwari Lal Vs. Kanwal Singh, in para 22 observed thus:
The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The grave men of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistant was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
From the law laid down by Hon''ble the Apex Court in the aforesaid case and bare reading of the provision contained in Section 123(7) of the Act, it appears, corrupt practice imports to mean that the Government servant whose assistance has been taken should fall within the prescribed category, and by specific pleadings and proof assistance other than the giving of votes should be established.
Petitioner failed to prove by legal evidence posting of Tulsidas, husband of Respondent No. 1 as Presiding Officer in any of the polling stations which falls within "Keshkal" constituency No. 148. On the other hand, from the evidence of Tulsi Das Netam (DW/5) and Phulodevi (DW/1) it was established that Tulsidas was appointed as Presiding Officer of Mohlai Polling station which fall in other constituency i.e. Bhanpuri.
Petitioner failed to prove involvement of any of the relatives of Respondent No. 1, who are in Government service, and who adopted any corrupt practice to secure votes in favour of Respondent No. 1. Presiding Officers posted in Keshkal constituency against whom Petitioner has made allegation in his petition were not found involved in any corrupt practice even Petitioner failed to prove by legal evidence any allegation against any of them.
In the result issue No. 1,2(a) and 2(b) are answered in negative.
Petitioner failed to prove corrupt practice adopted by Respondent No. 1 even he failed to prove that Kishnu, Devendra and Indrajit with the consent of Phulodevi or her election agent in any way to obtain or procure votes in her favour provided any assistance to her. Therefore, it is ordered that:
Election petition filed by the Petitioner is dismissed.
Taking into consideration all the facts and circumstances of the case both parties are directed to bear their own costs.