Delhi District Court
Smt. Anita Sehrawat vs Mrs Neena Sharma on 6 March, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE(NW)-II: ROHINI: DELHI
Suit No. 93/2008
Smt. Anita Sehrawat
W/o Sh. Ramesh Sehrawat
R/o 8/247 Mehram Nagar,
Delhi Cant., Delhi-10
............ Plaintiff
Versus
1. Mrs Neena Sharma
W/o Shri Naresh Sharma
R/o 8/46, West Mehram Nagar
Delhi Cant., Delhi
2. Smt Rajesh Devi
W/o Sh. Chaman Singh
R/o8/118, West Mehram Nagar
Delhi Cant., Delhi
3. Smt Geeta
W/o Shri Ravi Kumar
R/o 56/114 More Line
Palam, Delhi Cant..
4. The President
Delhi Cant. Board
Through its Cantonment Executive Office
Delhi Cant. Board, Delhi.
5. Shri S.M Bhardwaj
Returning Officer
Delhi Cantonment Board
Delhi Cant..
6. The Chief Executive Officer
Delhi Cant. Board
Delhi Cant..
............ Respondents
1
Date of Institution: 27.5.2008
Arguments Heard on: 24.2.2010
Date of Decision: 6.3.2010
-: J U D G M E N T : -
This petition under Rule 54, 55, 56, 57, 58, 59 & 60 of
Delhi Cantonment Electoral Rules, 2006 has been filed by the
election petitioner Smt. Anita Sehrawat, seeking declaration to the
effect that the election held on 18th May 2008 of respondent no.1
for Cantonment Board from Ward no.6 be declared illegal and
null and void and further directions that she be declared as
elected candidate. The brief facts of the case are as under:
BRIEF FACTS:
Petitioner's Case:
According to the petitioner she is a resident of Delhi Cant., and her name appears at Sr. No 1267 Ward No. 5 Delhi Cant.. and had contested the election from ward No. 6 for the Delhi Cantonment Board held on 18.5.2008. It is pleaded that the Delhi Cantonment Board is a Cantonment as defined in Section 3 of the Cantonment Act, 2006 which is a body cooperate having Perpetual Succession land a common seal with power to acquire and hold property both movable and immovable and to contract and can be sued and to be sued in the same name. As defined in 2 Section 10 & 11 of the Cantonments Act, 2006, the Delhi Cantonment Board is a Class-I, Cantonment as civilian population exceed 50,000. Section 12(3) of the Cantonment Act provides that Board shall consists of the following members, namely, a. The officer commanding the station as ex officiao or, the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the General Officer Commanding-in-Chief, the Command;
b. The District Magistrate or an Executive Magistrate not below the rank of Additional District Magistrate nominated by him;
c. The Chief Executive Officer;
d. The Health Officer ex officio;
e. The Executive Engineer ex officiao;
f. Name of the Officer commanding the station by order in writing;
g. Eight members elected under this Act.
The term of the office of members as defined in Section 14 of the Cantonments Act, 2006 is for a period of 5 years and every board for the purposes of election is to prepare electoral roll as provided under Section 27 of the Cantonment Act, 2007 and 3 Cantonment is to be divided into wards and the electoral roll is to be prepared separately for each ward. Section 15 of the Cantonment Act provides that the vacancy arising by efflux of time in the office of elected members of the Board shall be filed by ordinary election to be held on such date as the Central Government may by notification of the office ground direct and after such notification for these purposes a notice was issued under Rule 20 of the Cantonment Electoral Rules, 2007 for holding ordinary elections for eight Wards of Delhi Cantonment Board on 18.5.08 and the said notice duly contains the details of the Ward and the polling stations.
It is pleaded that the petitioner filed her nomination and stood as a candidate from Congress (I) party for the elections from Ward No. 6 of Delhi Cantonment Board and alongwith the petitioner, the respondent No. 1 to 3 were also candidates and respondent No.1 was declared elected having secured 1619 votes while the petitioner secured 666 votes which declaration was totally illegal. The respondent No.1 contested the election from National Party 'BJP' having symbol 'Lotus'. The counting of the election took place on 19.5.2008 and the respondent no.4 being Station Commander is the President of the Delhi Cantonment Board while the respondent no.5 was appointed as Returning 4 Officer who is the SDM of the area and the respondent no.6 is the Chief Executive Officer in whose custody the entire record of election is being kept as per the Electoral Rules.
It is alleged that the respondent No.1 in connivance with political leaders such as Shri Vijay Kumar Malhotra (Member of Parliament), Prof. Jagdish Mukhi (Member of Opposite of the Delhi Assembly) and Shri Kanwar Singh Tawar (MLA) tried to influence the voters by bribing them and also by extending threats, thereby materially affected the results of the election. As per the allegations, the respondent No.1 also joined hands with the respondent No. 4 to 6 and adopted corrupt practices in the election with their aid and assistance. According to the petitioner, the respondent no.1 and her party colleagues had been giving cash amount, liquor, gifts to the public and on the complaint of the workers of the petitioner, the police seized vehicle bearing No. DL-3CAA-1079 in Ward No.7 vide DD No. 33A on 13.5.08 under Section 32/133 DP Act and Shri Sanjay Kumar S/o Shri Raj Kumar R/o V-187 Old Nangli, Delhi Cant., Delhi and Shri Balbir Singh S/o Satnir Singh R/o V 15, Old Nangli, Delhi Cant.., Delhi were arrested alongwith a number of sarees and propagandas material i.e. handbills, papers, posters belonging to respondent No. 1 which is a conclusive evidence to 5 show that they were influencing the voters. It is stated that the said act has been done by the respondent no.1 in connivance with the respondent no. 4 to 6 in other areas of Delhi Cant., including the ward of the petitioner. It is also alleged that the respondent no.4 on the date of election was moving around in his uniform among the unit area as well as in other polling stations and was openly canvassing for the respondent no.1. It is stated that the respondent No.4 to 6 were keen to see that under no circumstances the petitioner wins the elections, therefore, at back of the petitioner issued/ circulated letter bearing No.F.RO/DCB/ ELECTION/ 2008 dated 17.5.2008 at the instance of Shri Vijay Kumar Malhotra (Member of Parliament), Shri Jagdish Mukhi (Leader of Opposition) and Shri Karan Singh Tanwar (MLA) and the respondent No. 4 directed that certain proofs of identity should not be accepted as a proof of identity which has been done by the respondent No. 4 solely with the motive that the voters who are jhuggi dwellers and poor people would not have the other proof of identity and as such would be deprived to cast their votes as trend of voters clearly indicated the voter's mood in faovur of petitioner and therefore, hundreds of voters were deprived to cast their votes. It is pleaded that no such earlier notice was issued or widely published and it was never given to the petitioner though it has 6 been mentioned that the copy given to all the candidates but no such copy was ever supplied or brought to the notice of the petitioner which came to the notice of the petitioner in the middle of election when half of the election was already over and number of voters were returned without casting their votes and respondent No. 4 was not to prepared to cooperate or listen to petitioner in this regard. The respondent no.5 subsequently withdrew the said circular in the morning and thus created confusion and such instructions were not available either with the candidates or with the polling officers and were available only with the respondent no.1 who had been successfully getting the votes on the basis of the such identity whereas other voters were not allowed to vote and therefore, hundreds of voters who wanted to vote in favour of the petitioner were not allowed to vote on the basis of non availability of the proof of identity.
According to the election petitioner, on the date of polling, in the Polling Booth No. 51 to 55 there was a large scale rigging and in fact booths were captured as huge militarily personnel came in the military buses and trucks and thronged themselves into the polling booths and without any identity and without any other checking just those persons took over all the ballot papers and stamped them in favour of the Respondent 7 No.1. It is alleged that the petitioner and her polling agents were not allowed to enter by those persons being army personnel and the police did not stop them from entering despite the fact that none of them have any proof of identity. It is further alleged that on 19.5.08 at the time of counting of the votes hundreds of votes polled in favour of the petitioner were rejected malafidely and deliberately though those were clearly marked in favour of the Petitioner. It is stated that it was the duty of Returning Officer to provide instruments for stamping, distinguishing mark of the ballot papers and the articles necessary for the electors to mark the ballot papers. The electoral mark the ballot paper with such articles which was provided by the Returning Officer which was in the shape of horizontal stick of wood about 2-3 inch having a rubbers stamp on Swastik mark of one side which was very poor in quality in many of such sticks the Swastik mark did not remain on it after one hour or two hours and even in those one or two hours those were not marking it properly. According to the election petitioner, the ballot papers were also not in a proper shape and form as required which illegality has resulted in bogus voting and has materially affected the result of the election.
It is pleaded that perusal of the results of the election would show that the petitioner has lost the election only by 282 8 votes whereas 400 votes casted in favour of the petitioner have been declared invalid which has materially affected the result of the election, though the above said corrupt practices and irregularities were adopted in the election for which the election held on 18.5.08 declared on 19.5.08 declaring the Respondent No.1 as elected is required to be set aside. It is also alleged that the counterfoils of the ballot boxes were not signed or taken the thumb impression with the individual voters deliberately and malafidely with the sole motive to promote the bogus voting and therefore, a large number of bogus voting were done in favour of the Respondent No.1 which materially affected the result of the election. It is further alleged that each candidate was allowed to appoint one person as his/ her election agent by Power of Attorney and then only such Agent was entitled to act like that of candidate, but in the present case none of the respondents appointed election agent by power of attorney, yet unauthroised persons, who had no power of attorney, was entertained as the Election Agent who were friendly moving around in every polling station, counting station as the respondent issued them the identity card to this effect that they are election agents. According to the election petitioner, since the Returning Officer under the instructions of respondent No.4 did not held the elections and the counting as per 9 the rules and did not follow the rules, the election so held are required to be declared invalid.
Respondent's Case:
The respondent no.1 i.e. the returned candidate has filed her written statement wherein she has denied all the allegations made against her by the election petitioner. She has denied that she in connivance with Shri Vijay Kumar Malhotra, MP or Professor Jagdish Mukhi, Leader of Opposition in Delhi Assembly or Shri Karan Tanwar, MLA or otherwise tried to influence any voter by bribing or by extending any threat. According to the respondent no.1, no particulars of the allegations of corrupt practices have been given and the name of a single person who was offered any bribe or extended any threat has not been mentioned. It is stated that the place, date, time of the alleged elections or the person(s) who was involved in it or the name of any person who witnessed it is missing from the election petition and therefore, the election petition does not constitute any cause of action. According to the respondent, she is not aware if the police seized any vehicle in ward no.7 or that it was bearing no. DL 3CAA 1079 or that any person was arrested. It is further stated that the election staff and the polling officers are under a duty to ascertain and satisfy themselves that a person applying for 10 a ballot paper is the person who represents himself to be and is entitled to receive a ballot paper, which Rule is in the interest of democracy and to prevent impersonation and bogus polling. It is stated that in appropriate circumstances, a polling officer can ask the person intending to vote, to adduce evidence in proof of his identity. It came to the knowledge of Bhartiya Janta Party that the petitioner and her party had obtained bogus rickshaw licences, dependent cards and had also got made railway passes in the names of bogus voters to rig the election and distort the Will of the people. This apprehension was communicated to the Returning Officer and presumably upon consideration of the said communication, the Circular No. F/ RO/ DCB/ ELECTION/ 2008 dated 17.5.2008 was issued by the Returning Officer. However, for reasons best known to the Returning Officer, the circular was withdrawn on the morning of the polling without consulting the respondent no.1 and her party. The said circular even otherwise did not cause any loss to the petitioner as in Ward No.6 the identity of no elector was challenged under Rule 44 of the Rules and therefore, the occasion to require evidence and proof of identity of any elector did not arise. It is also stated that the circular could not cause any loss to the petitioner as in Ward no.6 the identity of any elector was not challenged under Rule 44 of the 11 Rules.
According to the respondent no.1, no complaint was made by the petitioner or her polling agents or her party to the Returning Officer or to any other officer regarding booth capturing. It is stated that the counting of votes was held on only one table and as per Rule 49 of the Rules, all candidates who chose to be present at the counting were allowed to watch the counting. The petitioner and her election agent were present at the time of counting and before rejecting any ballot paper, the returning officer allowed each candidate, including the petitioner and her election agent a reasonable opportunity to inspect the ballot paper. Thereafter the returning officer recorded on every ballot paper which he rejected the grounds for rejection in abbreviated form and initialed the same but neither the petitioner or her agent did not raise any objection whatsoever upon the rejection of any ballot paper by the returning officer and after the counting was completed, the result of the counting was recorded in form XA. The returning officer also prepared return in Form XI of the result of the polling and the petitioner and her election agent did not raise any objection even at this stage upon the counting or upon the rejection of any ballot paper by the returning officer. It is stated that even after the declaration of result and till 12 the filing of the election petition, the election petitioner has not represented in any manner about the counting or the declaration of result to the returning officer or any other authorities. It is pleaded that the election petitioner was in a position to set out precisely her objection for its acceptance or its rejection and was also in a position to note down the ballot paper numbers which numbers of the ballot papers should have been mentioned in the petition so as to make precise allegations as to how the said ballot paper ought or ought not to have been rejected. It is stated that the allegations made by the election petitioner are vague and general and the petitioner is seeking a recount which would lead to a fishing inquiry with a view to find out sufficient material to support the petitioner's case. According to the respondent the authorities have chosen experienced persons to do the counting and have taken every possible care to ensure that the members of staff do not commit any mistake. Moreover, the relief of recounting cannot be accepted merely upon possibility of there being any error. It is stated that no complaint was made during the counting about such a large number of votes allegedly polled in favour of the election petitioner having been rejected and no complaint was made even after the counting. It is also stated that the instrument is usually a piece of wood, in a cuboid shape on 13 both of ends of which are glued, the rubber stamps containing a swastika mark and an elector has to put this swastika mark on the ballot paper. All ballot papers where an elector has put swastik mark in a way that his intention to vote for any candidate could be discerned has been counted and the votes which did not bear the proper mark or were otherwise have been rejected. It is stated that Rule 41 of the Cantonment Electoral Rules, 2007 deals with the procedure for the supply of ballot papers to the electors and the method of voting and it does not require the polling officer to obtain the signatures or thumb impression of the elector on the counter foil of the ballot paper. It is further stated that even in the conduct of election Rules, 1961 the requirement of obtaining signatures or thumb impression of an elector on counter foil of the ballot paper was introduced only in the year 1979 and in the absence of any provision to obtain signatures or thumb impression of an elector on the counter foil of the ballot papers, the polling officers could not require the same from any elector.
The respondent nos. 4 to 6 have also filed their written statement wherein a preliminary objection has been raised that the petitioner has not supplied the proof of deposit of Rs.3,000/- and in case, the amount has not been deposited within the statutory period of limitation, the petition is liable to be dismissed. It is 14 pleaded that the petitioner has made false and fabricated averments against the respondents and as such the petition is liable to be dismissed.
On merits, it is stated that the allegations have been made without any basis. According to the respondents, the respondent No.4 was the Brigadier of Armed Forces at the time of conducting of elections and was doing his duty for the peaceful and fair conduct of elections being President of the Cantonment Area and the allegations against the respondent No. 4 are simply flimsy and figment of imagination of the petitioner and the same are without any merit or any basis. It is further stated that the letter bearing No. F.RO/ DCB/ Election/ 2008 dated 17.5.2008 was immediately withdrawn on the advise of the President Cantonment Board Delhi Cant.. and as per the Cantonment Electoral Rules, 2007 the returning officer shall appoint polling officer who shall be in-charge of the voting arrangements and responsible for fair conduct of elections at his polling station. As per Rule 40 of the said Rules, the polling officer has been authorised to verify the identity of the elector and has been further authorised to put any questions that may be suggested by a candidate or an election agent. It is stated that in view of the fact that no complaint was received in respect of any person who has 15 not been allowed to vote on the basis of letter dated 17.5.2008, the ground alleged by the petitioner is liable to be rejected. The allegations of the petitioner that he was not given the copy of the said letter, has been denied. It is also denied that number of voters were returned without casting their vote and it is stated that no such complaint was received. According to the respondents, the respondent no.5 has rejected the ballot papers as per rules.
The record reveals that the respondent no.2 to 3 never appeared before this court and were proceeded exparte. ISSUES FRAMED:
On the basis of the pleadings of the parties, this court has vide order dated 17.7.2008 framed the following issues:
1. Whether the suit discloses no cause of action? (OPP)
2. Whether the allegations made against the respondent by the election petitioner in para 10, 11 and 12 are correct? If yes, then whether it would materially affect the result of the elections? (OPP)
3. Whether the votes have been improperly accepted/ rejected?
If yes, then whether it would materially affect the result of the elections? (OPP)
4. Whether there has been non compliance of the provisions of The Cantonment Act, 1924 and Cantonment Electoral Rules, 2007 as alleged in the petition? If yes, then whether it materially affects the result of the elections? (OPP) 16
5. Whether the Circular issued on 17.5.2008 was properly conveyed to the election petitioner and the effect of the same on the result of the elections? (OPP)
6. Whether the election of the respondent no.1 is liable to be set aside under the electoral rules and the petitioner is liable to be declared duly elected in place of respondent no.1 as the member of the Cantonment Board from Ward No. 6? (OPP)
7. Relief.
EVIDENCE:
In order to prove her case the election petitioner Smt. Neena Sharma has examined herself as her witness as PW1 and in her examination in chief by way of affidavit she has corroborated what has been earlier stated in the main petition. She has placed her reliance on the notice published under Rule 20 of the Cantonment Electoral Rules, 2007 which is Ex.PW1/1; copy of the letter bearing no. FRO/ DCB/ Election/ 2008 dated 17.5.2008 which is Ex.PW1/2 and the copy of the cancellation letter which is Ex.PW1/3.
In her cross-examination she has deposed that the notice Ex.PW1/2 was issued by Prof. Vijay Kumar Malhotra and Sh. Karan Singh Tanwar wherein it was stated that the circular and 'Autowale and Rehriwale' shall not vote. According to her the circular was withdrawn at 9.00AM on 18.05.2008 which was told 17 by Prof. Vijay Kumar Malhotra and Sh. Karan Singh Tanwar and they had no information of it and neither the same was informed at the polling booths. She has deposed that there may be about 200 persons who could not vote due to this circular but she does not remember the name or particulars of any person who could not vote because of the said circular. She has also admitted that neither her polling agents nor herself nor any other person have filed any complaint of that effect to any authority and they took no action as they were busy on the polling day She has deposed that the respondent no.4 was moving around the polling booths in uniform and stating that the documentary evidence of identity may not be demanded from army personnel in uniform but she did not hear him saying any other thing. According to her, the military personnel came and captured the polling booth. She has admitted that she had appointed a polling agent and two relief agents at each of the booths and that her polling agents as well as the polling agents of other parties were present at each polling booth since before the polling started. She has stated that she made an oral complaint to the police outside booth no. 51 and 55 as they were most effected and also made an oral complaint to Sh.
S. M. Bharadwaj on the day of counting of votes. She has admitted that the army personnel were upset against the congress 18 because of their being unfairly treated by the 6th pay commission and for this reason congress has received very few votes from the booths of military personnel.
She has further in her cross-examination deposed that Prof. Vijay Kumar Malhotra and Sh. Karan Singh Tanwar gave bribes to voters to vote for BJP but she does not know the name of any other person who offered any bribe to any voter relating to the said elections. According to her she had personally not seen Prof. Vijay Kumar Malhotra or Sh. Karan Singh Tanwar offering any bribe to voters but the said fact was told to her by Sh. Satish Sehrawat. She has also stated that vehicle no. DL-3C-AA-1079 was not seized in her ward and it was seized in ward no.7. According to her, she did not see the vehicle nor did she see the goods inside it at any time nor is she aware who are Sanjay Kumar and Balbir Singh. She has also stated that she and her uncle Pawan Sehrawat were present at the time of counting. She admits that before rejecting any ballot paper the counting officer allowed them a reasonable opportunity to inspect the ballot paper only after which it was rejected and thereafter the counting officer wrote the reason for rejection on each ballot paper and initialed the same. She has also admitted that after each round of counting the result of the count was entered into a sheet and got signed by 19 the candidate and election agent and she and her election agent had signed the result sheets of all rounds of counting. She further admits that after the completion of the counting the result of total counting was computed and she and Sh. Pawan Sehrawat signed the same. According to her, Sh. Pawan Sehrawat had orally complained about the rejection of some 200-250 ballot papers. She has stated that she had given the figure of 400 votes that were cast in her favour of having been wrongly rejected upon the information given to her by Pawan Sehrawat. She has further deposed that she received one complaint from Basanthara Lines' voters from her polling agent but she is not aware of the reason why they were prevented.
The election petitioner has also examined her election agent Jagjit Singh as PW2 who in his examination in chief by way of affidavit corroborated the testimony of PW1 in toto.
In his cross-examination, the witness has admitted that the total number of votes in polling booth no. 51 is 822 but he is unable to tell that the polling in the said booth was less than 22%. He further admits that the total number of votes in polling booth no. 52 is 819; in polling booth no. 53 it is 825; in polling booth no. 54 it is 828 and in polling booth no. 55 it is 734. He has admitted that he or the petitioner or any of her polling agents did 20 not make any complaint of any kind to the polling officers or to any other officer or authority in writing whatsoever about any malpractice in polling. The witness has further admitted that their polling agents did not challenge the identity of any voter at any polling station in the impugned election and that the defence personnels were angry with the Indian National Congress over the report of the Pay Commission. He has admitted that he had not personally seen anybody taking over the ballot papers and stamping them in favour of respondent no.1 in any booth but according to him, this was informed to him by the polling agents of the petitioner whose name he does not remember The witness has further admitted that Prof. Vijay Kumar Malhotra, Sh. Jagdish Mukhi and Sh. Karan Singh Tanwar did not offer any bribe or extend any threat to any person for any purpose and that any elector who wanted to vote went to a polling station with a slip on which his name, booth number and his serial number in the voters' list was written. The slip was delivered to the polling staff who than read out the above particulars aloud for the benefit of hearing of the polling agents and in the normal course if thereafter the identity of the voter was not challenged by any polling agent, the elector was allowed to vote. He has also admitted that as per the procedure if any polling agent wanted to 21 challenge the identity of any voter, he had to deposit a fee of Rs.100/- and fill up a form for this purpose. He does not remember if no polling agent of the petitioner challenged the identity of any voter in the impugned election. He further admits that vehicle bearing no. DL-3C-AA-1079 was not impounded in their ward and states that it contained Sarees and publicity material pertaining to ward no.6. He has testified that he had seen the respondent no.4 outside the Central School seeking votes for BJP who was standing in front of school gate. He has admitted that their table was at a distance of 200 meters from the school gate and he did not make any complaint about this and did not make any effort to persuade respondent no.4 in this matter. He has further admitted that the instruments for marking votes were proper and in a good condition and not of poor quality and the swastik mark on the said stamps was not found removed after its use. According to the witness, during the counting, he had taken down on a piece of paper the number of votes polled by different candidate and the number of votes rejected in every round and the figure of 400 votes mentioned in para 12 of his affidavit is his guess work. The witness has further stated that he does not remember the name of any voter who did not or could not vote because of the circular referred above.
22
Sh. V. K. Sethi, AE, Delhi Cant.. Board has been summoned by the election petitioner and has been examined as PW3, who has produced the instruments for stamping and also the record of the rejected ballot papers. It has been observed by this court that as many as 23 instruments issued by the Returning Officer to the Polling Officers have been placed before this court of which 16 instruments are those which have been used by the voters and the swastik mark on all the used and unused instruments are intact.
According to the witness, as per rules three instruments were issued to each Polling Officer and in the present case there were 8 polling stations set up in ward no.7 and 24 instruments were issued. He has deposed that in certain cases the voters walk away with the instruments due to which reason 1 instrument which was issued to the polling station no.60 is not available.
This court has also observed that in ward no.7, polling station no.60 from which one instrument is less, ballot papers have been found to be rejected as they did not bear the stamping of the instrument from the side bearing the swastik mark and have been stamped on the horizontal side and 65 votes which were cast in favour of Geeta have been rejected and 46 number of votes 23 which have been cast in favour of Anupama Tripathi; 1 vote had been cast in favour Lalita and 12 ballot papers have been rejected due to other reason and therefore, a total number of 124 ballots were rejected.
It has been further observed that in polling station no. 61, only 37 votes which were cast in favour of Geeta have been rejected and 41 number of votes have been cast in favour of Anupama Tripathi; 1 vote has been cast in favour Kamlesh, 1 in favour of Manisha and 6 ballot papers have been rejected due to other reason and therefore, a total number of 86 ballots were rejected.
In rebuttal the respondent has examined her election agent Anil Sharma as her sole witness as D1W1 who in his examination in chief by way of affidavit corroborated what the respondent no. 1 has stated in her written statement.
In his cross-examination he has deposed that he had not filed any document to show that he was appointed as election agent of the returned candidate. He has denied the suggestion that army voters voted in substantial numbers for BJP at the directions of President Delhi Cantonment Board and votes were also polled in favour of the respondent no.1 as they captured the booths. He 24 has admitted that Brig. Dhillon visited the polling booths in his uniform on the day of polling but has denied that Brig. Dhillon canvassed to vote for respondent no.1. He has further admitted that circular Ex.PW1/2 was issued and that it was withdrawn vide Ex.PW1/3 but has denied that the said withdrawal had not reached all the polling booths in time. The witness has denied the various suggestion put to him regarding inferior quality of the voting instruments but he is not aware whether the ballot paper used in the election was as per the form provided in the Cantonment Electoral Rules. He has denied that the respondent no.1 distributed sarees and propaganda materials with the aid and knowledge of the respondent no.4 to 6.
The Returning Officer S.M. Bhardwaj has examined himself as his witness as D5W1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the written statement. He has placed his reliance on the list of polling stations which is Ex.D5W1/1; the notifications dated 6.5.2008 and 14.5.2008 regarding change in the polling stations which are Ex.D5W1/2 & Ex.D5W1/3 and the circular dated 17.5.2008 which is Ex.D5W1/4.
25
In his cross-examination the witness has stated that he is not aware whether in the vehicle bearing no. DL-3CAA-1079 was seized in ward no. 7 vide DD no.33A on 13.5.2008 under Section 32/113 DP Act and Sh. Sanjay Kumar S/o Sh. Raj Kumar R/o B-87, Old Nangal, New Delhi and Sh. Balbir Singh S/o Sh. Satbir Singh R/o B-15, Old Nangal, New Delhi were arrested alongwith the number of sarees and propaganda material i.e. handbills, papers, posters belonging to respondent no.1. He is not aware whether the respondent no.4 was moving around the polling booths on the day of election in his uniform and states that he did not receive any complaint in this regard. He has admitted that circular dated 17.5.2008 Ex.PW1/2 was not widely published and has stated that he had sent the circular Ex.PW1/3 withdrawing the circular Ex.PW1/2 to the polling officers alongwith the ballot papers. According to the witness, he had not gone through / seen the election record either at the time of preparation of affidavit of his evidence or deposing. He also does not remember who was the Election Agent for Neena Sharma. He has denied that he had not heard the Election Petitioner with regard to reaching of the Ex.PW1/3 in the middle of the election in order to favour respondent no.1. He has admitted that as per Cantonment 26 Electoral Rules the election agent is to be appointed by way of Power of Attorney and that respondent no.1 appointed election agent but by way of authorization paper and not on a stamp paper. The witness has denied the various suggestions put to him. FINDINGS:
I have heard the arguments advanced before me by the counsels for the parties and have considered the written synopsis placed on record. I have also gone through records of the case. My findings on the various issues are as under:
Issue no.1 Whether the suit discloses no cause of action?
Onus of proving this issue was upon the respondent no.1. The case of the respondent no.1 is that there is no cause of action for the election petitioner to file the present petition. The term 'cause of action' would mean every fact which may be necessary for the petitioner to prove, if traversed in order to support her right to the judgment. In so far as the present petition is concerned, it is an admitted case of the parties that the election petitioner and the respondent no.1 were the contesting candidates belonging to different political parties. The respondent no.1 is the returned candidate of the elections held to the Cantonment Board in the year 2008. She has challenged the result of the elections of 27 the respondent no.1 on the various grounds as mentioned in the petition. Whether or not she may succeed is a different issue but it cannot be said that there does not exist any cause of action as alleged by the respondent no.1. I find no merit in the objection raised. Issue is hereby decided in favour of the election petitioner and against the respondent no.1.
Issue no.2 Whether the allegations made against the respondent no. the election petitioner in para 10, 11 and 12 are correct? If yes, then whether it would materially affect the result of the elections?
Issue no.3 Whether the votes have been improperly accepted/ rejected? If yes, then whether it would materially affect the result of the elections?
Issue no.4 Whether there has been non compliance of the provisions of the Cantonment Act, 1924 and Cantonment Electoral Rules, 2007 as alleged in the petition? If yes, then whether it materially affect the result of the elections?
Issue no. 5 Whether the circular issued on 17.5.2008 was properly conveyed to the election petitioner and the effect of the same on the result of the elections?
All the aforesaid issues are clubbed together for the sake of convenience involving common discussion. Onus of proving all the issues was upon the election petitioner. It is alleged by the election petitioner that she had lost the election by 982 votes whereas 400 votes casted in favour of the petitioner 28 have been declared invalid which has materially affected the result of the election and examination of ballots would show that these votes have been deliberately declared invalid. It is further alleged that the respondent no.1 in connivance with the political leaders like Vijay Kumar Malhotra, Prof. Jagdish Mukhi and Sh. Kanwar Singh Tanwar who were the sitting MPs and MLA, tried to influence the voters by bribing them and also by extending threats thereby materially affecting the results of the election. It is also alleged that the respondent no.1 joined hands with the respondents no. 4 to 6 and adopted corrupt practices with their aid and assistance. In this regard it is specifically alleged that the respondent no.1 and her party colleagues had been giving cash amount, liquor, gifts etc. to the public and on the complaint of the workers of the petitioner, the police seized vehicle bearing no. DL 3CAA 1079 vide DD No.33A on 13.5.2008 under Section 32/113 DP Act in Ward No.7 pursuant to which Sanjay Kumar S/o Sh. Raj Kumar R/o V-87, Old Nangal, Delhi Cant.. and Balbir Singh S/o Sh. Satbir Singh R/o V-15, Old Nangal, Delhi Cant.. were arrested alongwith the no. of sarees and propaganda material i.e. hand bills, posters belonging to respondent no.1 which is a conclusive evidence to show that they were influencing the voters. It is further alleged that the respondent no. 4 was moving around 29 in his uniform amongst the unit area openly canvassing in favour of the respondent no.1 on the date of polling. Further, a circular/ letter bearing no. F.RO/ DCB/ Election/2008 dated 17.5.2008 was circulated at the instance of Sh. Vijay Kumar Malhotra, Sh. Jagdish Mukhi and Sh. Kanwar Singh Tanwar and the respondent no.6 directed that certain proofs of identity not to be accepted which was done with the sole motive of depriving the voters of the Jhuggis and poor persons from casting their vote. The election petitioner has also alleged that the mood of the electors in favour of the petitioner had been gauged and it was for this reason that such a circular was issued without any prior notice or widely published and despite the fact that it was mentioned that a copy of the circular was given to all the candidates, no such copy was ever supplied to the election petitioner and she came to know about the same in the middle of the elections when the polling was already over and a large number of voters had returned without casting their votes. Thereafter, the said circular was subsequently withdrawn but not widely publicized and therefore, the polling officers returned hundred of voters for want of identification and thus the voters were improperly refused to be received, thereby materially affecting the result of the election. According to the election petitioner on 19.5.2008 at the time of counting of votes a 30 large no. of votes casted in favour of the petitioner were deliberately rejected though they had been marked in favour of the petitioner under Rule 34(2). It is also pointed out that a large no. of votes had been declared invalid and majority of them had been accepted in favour of the petitioner thereby affecting the results of the elections. It is also alleged in the pleadings that the ballot papers were not in proper shape and form as required under the rules which resulted into bogus voting. It is further alleged that the polling booth no. 51 to 55 were captured as huge military personnel came in the military buses and trucks and they took over all the ballot papers and stamped them in favour of the respondent no.1. According to the petitioner, the counter foils of the ballot papers were not signed nor the thumb impression of the electors were taken with the sole motive of permitting bogus voting and it is because all the respondents join hands against the petitioner and did not follow the procedure laid down under the Cantonment Electoral Rules, 2007 which resulted in her defeat.
The petitioner in order to discharge the onus upon her, has examined herself as PW1 and in her examination in chief by way of affidavit she has corroborated what she has earlier stated in the main election petition. In her cross-examination it is deposed by the petitioner that a number of 'Rehriwalas' and 31 'Autowalas' were not able to cast their votes and perhaps there may be 200 persons who could not cast their votes on account of the said circular Ex.PW1/2 which according to her had been issued at the instance of Prof. Vijay Kumar Malhotra and Karan Singh Tanwar. However, it is evident that the name of none of the persons who have been so deprived have either been mentioned nor such persons have been brought to the court. She has admitted in her cross-examination that neither she nor her polling agents filed any objection on her behalf before any authority with regard to the Autowalas and Rehriwalas having been deprived of casting their votes on account of aforesaid circular. Further, she has alleged that military personnel had been indulging into booth capturing but in her cross-examination the election petitioner has admitted that neither she nor her election agents have made any complaint in writing of the aforesaid, till the filing of the election petition. She has deposed that she had made an oral complaint to the police personnel and also the Returning Officer but admits that she did not inform this fact to any senior person of her party. She has admitted that army personnels had their badges displaying their names on their shirts. She has also admitted that army personnels were upset against the Indian National Congress on account of their unfairly treated in 32 the 6th Pay Commission due to which reason the said Congress received few votes from the military personnels. She has deposed that Prof. Vijay Kumar Malhotra and Sh. Karan Singh Tanwar gave bribes to voters to vote for BJP but she is not aware of the name of any other person who offered any bribe or threat in relation to the said election. She admits that she did not personally see Proif. Vijay Kumar Malhotra or Karan Singh Tanwar offering any bribe to voters and she was told by Sh. Satish Sehrawat of her family about this a day or two before the elections. Further, in respect of the seizure of vehicle bearing no. DL-3C-AA-1079 she has admitted that the same was not seized in her ward and was only seized in ward no.7. In fact she has not seen the vehicle nor the goods inside it. She has also admitted that she has no other basis to allege that the recovered material and the persons arrested belong to BJP. She further admits that before rejecting any ballot the Counting Officer allowed them a reasonable opportunity to inspect the ballot paper only after which it was rejected after which the said officer wrote the reasons for rejection on each ballot paper and initialed the same. She has also admitted that after each round of counting the result of the counting was entered into a sheet and was got signed by the candidate and election agent and that she and her election agent 33 had signed the result sheets of all rounds of counting. Though the witness PW1 deposed that Sh. Pawan Sehrawat had orally complained about the rejection of some 200-250 ballot papers yet she admits that he did not give any such complaint in writing and states that she had given the figure of 400 votes being wrongly rejected in her petition on the information given to her by Pawan Sehrawat. When asked if she had received any complaint that her voters were prevented from voting at any polling booth for any reason, she states that she had received one complaint from Basanthara Lines but does not know the reason why they were prevented and according to her, she tried to speak the Presiding Officer who was not available and thereafter, she abandoned the matter.
The election petitioner has further examined one Jagjit Singh Pawan her election agent who has corroborated the testimony of PW1. In her cross-examination he has admitted that he made no complaint and if any, he is not aware of it. He has admitted that Prof. Vijay Kumar Malhotra, Sh. Jagdish Mukhi and Sh. Karan Singh did not offer any bribe or extended any threat to any person for any purpose. He has also admitted that any elector who wanted to vote went to a polling station with a slip on which his name, booth number and his serial number in the voters list 34 was written, which slip was delivered to the polling staff who read out the above particulars aloud for the benefit of hearing of the polling agents and if the identity of the voter was not challenged by any polling agent, the elector was allowed to vote. He further admits that as per the procedure if any polling agent wanted to challenge the identity of any voter, he had to deposit a fee of Rs.100/- and filled up a form for this purpose but he does not remember if any polling agent of the petitioner challenged the identity of the voter in the impugned election. Further, he has admitted that the vehicle bearing no. DL-3C-AA-1079 was not impounded in their ward and states that he was told by some other person and he personally not made any verification. The witness PW2 is not able to tell the name of any person to whim the sarees and other material had been distributed. In so far as the allegations against the respondent no.4 are concerned, the said witness has stated that he had seen the respondent no.4 outside the Central School seeking votes for BJP but states that their table was at the distance of 200 meters from the school gate and he did not made any complaint about this and did not make any effort to persuade respondent no.4 in this matter nor he reported the matter to his party. He is not aware if the party took any action on the same. He has further testified that he had not noted the particulars 35 of votes which had been rejected and the figure of 400 votes mentioned in para 12 of his affidavit is his guess work. Though the witness has deposed that he had made an account of the invalid votes but he has not produced the same in the court.
In so far as the respondent no.1 is concerned she has examined her election agent and the respondent no.5 has examined the Returning Officer Sh. S.M. Bhardwaj. Both the witnesses in their examination in chief by way of affidavits have corroborated what they have stated in their written statements. They have controverted and rebutted the allegations made by the election petitioner in her petition. Further Sh. V.K. Sethi who had produced the entire record of the elections has also been examined on the directions of this court as PW3 who has placed the various instruments of stamping bearing the Swastik mark and also the details of the various votes rejected on account of improper stamping and it is observed that it is not only the votes cast in favour of the election petitioner which have been rejected but also equal no. of votes so cast in favour of the respondent no.1 and other contesting candidates which have been rejected. The entire record has been personally examined by the court.
I have gone through the testimonies of the various witnesses which include the testimonies of the election petitioner 36 herself and her election agent. Firstly an attempt has been made to challenge the validity of the present elections on the ground that a number of ballot papers which had been marked from the horizontal side of the instrument provided by the Returning Officer had been rejected by the Returning Officer in the present ward whereas such type of ballots had been accepted in the ward no.5 showing the inconsistency and arbitrariness of the Returning Officer which is now under challenge before this court. As per the provisions of Rule 34 (2) of the Delhi Cantonment Electoral Rules framed under the Delhi Cantonment Act, the Returning Officer is required to provide to the polling officers many other things and instruments for stamping the distinguishing mark on the ballot papers. It is the duty of the Returning Officer to provide instruments for stamping, distinguishing mark of the ballot papers and the articles necessary for the electors. These articles have already been provided by the Returning Officer which were required to be provided to the electors. It is stated by the election petitioner that the instrument of stamping which were provided to the polling officers by the Returning Officer were of poor quality and on many of the instruments the Swastic mark was not present and it was for this reason that the voters have marked the ballot papers from the horizontal side and therefore, under these 37 circumstances, the said ballots should have been accepted and not rejected. This court had directed the production of the entire election record before it and had duly examined the said instruments of stamping and it had been observed that none of the instruments were either damages or not bearing the Swastic mark but it appears that the voters have chosen to put the stamp from the horizontal side and not from the side of the Swastic mark. Rule 34 (2) of the Cantonment Electoral Rules are very clear and the ballot papers are required to be marked with the instrument of marking providing by the Returning Officer which instrument of marking is the one which bears the Swastic mark. The intention of the voters have to be gathered from the marking made by them with the instrument of marking containing the Swastic mark. Therefore, the Returning officer in the present case has rightly rejected the ballots not containing the Swastic mark. It would be a different issue whether the said marking has been made from the horizontal side or by any other instrument. Once the instrument of marking bearing the Swastic mark has been provided, the intention of the voters cannot be gathered from any other marking. The allegation that the Returning Officer has adopted dual approach by accepting such ballot papers in Ward no.5, is an issue which is required to be dealt with while considering the challenge 38 to the election in respect of ward no.5 where such ballots have been accepted. However, in so far as the present ward is concerned the said ballots have rightly been rejected by the Returning officer. Even otherwise, this court has duly examined the rejected ballots of the entire ward, record of which had been produced before it. Rule 49 of the Electoral Rules framed under the Cantonment Act do not provide for marking the ballot in a particular manner but read with Rule 34 it provides for a distinguishing mark on the ballot papers which has to be put by the instrument of marking and therefore, any ballot paper which does not bear the distinguishing mark (Swastic Mark) and were bearing any other mark than the Swastic mark, was rightly rejected by the Returning Officer and his conduct in accepting the votes in ward no. 5 shall be open for consideration while dealing with the election petition pertaining to ward no.5.
Secondly it is evident from the cross-examination of the petitioner and her polling agent that before any ballot was rejected, the Counting Officer has granted them reasonable opportunity to inspect the ballot paper only after which it was rejected. Rather the election petitioner in her cross-examination has admitted that after the conclusion of the counting, results of the election were declared and she and her election agent signed 39 the same. She has also admitted not having complained to any authority at the time of counting nor they had requested for re- counting.
Thirdly it is also alleged that the President of the Delhi Cantonment Board was visiting around the polling station and was openly canvassing for BJP. The election petitioner has not placed on record any complaint made in writing by them to any authority with regard to the aforesaid. PW2 the election agent of the petitioner has stated that he had personally seen the respondent no.4 near the gate of the school making request to various voters but has meanwhile admitted that he was at that point of time near his table which is about 200 meters away from the school gate and therefore, it is impossible that the witness would have heard anything as so alleged. Even if the said version of the witness is considered to be correct, there is no explanation as to why this issue was not suitably raised with the competent authorities and therefore, it appears that the ground raised is an after thought.
Fourthly the election petitioner has alleged that the circular dated 17.5.2008 had been issued at the instance of respondent no.1 providing that certain documents i.e. rickshaw license, dependent card and railway passes shall not be considered as documents of identity which circular was subsequently 40 withdrawn but not widely publicized. It is not disputed that the said circular had been issued and later on withdrawn but it was necessary for the election petitioner to have brought before this court the details of the persons who have been deprived from casting their votes on account of the aforesaid. It is not sufficient only to plead that rights of certain persons had been defeated on this account but the names of such persons who had been so prevented by issuance of this circular to cast their votes should have been provided and these persons should have been produced before the court to prove this allegation which has not been done. Neither the names nor the particulars of the said persons were so prevented from casting their votes on account of the said circular, have been provided. I, therefore, hold that the election petitioner has not been able to prove and substantiate the aforesaid ground. It is further evident from the cross-examination of the petitioner and her election agent that no objection had been raised by them at the time of election with the polling officer to the extent that some persons had been wrongly denied the entry to the polling station or their right to cast votes. The cause to demand any documentary evidence of identity would arise only upon the challenge of identity of a voter and upon depositing a sum of Rs.100/- as provided under the rules. It has been denied by the 41 witnesses of the election petitioner that such procedure was being followed but identity of any voter was never challenged in the elections. This being so, I hereby hold that the issuance of this circular dated 17.5.2008 does not affect the result of the elections in any manner.
Fifthly it is also alleged that the respondent no.1 in connivance with Sh. Vijay Kumar Malhotra (Member of Parliament), Professor Jagdish Mukhi (the opposition leader) and Sh. Karan Singh Tanwar (MLA) had tried to influence the voters by giving bribes and threats. Both PW1 and PW2 have not supported what they have stated in their examination in chief and in their cross-examination they have stated that they did not see any of these leader bribing any of the voters and extending threats.
Sixthly an objection has been raised by the election petitioner that no thumb impressions, signatures or evidence has been collected regarding the vote casted by a particular elector and no counter foils had been maintained there being a serious irregularity. I am not very convinced by the argument advanced since the petitioner has failed to place on record any rules requiring the maintenance of the counter foil. The signatures of the electors have been taken on the registers of the Polling Officers and the Rules do not require any printing or maintaining 42 of the counter foil and the objection raised in this regard is devoid of merits.
Lastly there are allegations regarding the corrupt practices against the respondent no.1. It has been alleged that liquor, cash amount and gifts had been distributed by the respondent no.1 and on the complaint of the workers of the petitioner, the police seized vehicle bearing no. DL-3CAA-1079 in Ward no.7 and two persons were also arrested. Both PW1 and PW2 have admitted that they are not personally aware of the aforesaid facts and have deposed on the basis of what has been told to them. They have admitted that the seizure did not take place in their presence.
Therefore, under these circumstances, I hereby hold that the election petitioner has not been able to prove and substantiate the allegations made by her in paragraph 10, 11 and 12 of the petition and also that the votes have been improperly rejected and if accepted could have materially affected the result of the election. She is further unable to prove that there had been a non compliance of The Cantonment Act and Cantonment Electoral Rules or that the circular issued on 17.5.2008 was not properly conveyed to the election petitioner which affect the result of the elections.
43
Issues are decided in favour of the respondent no.1 and against the election petitioner.
Issue no.6 Whether the election of the respondent no.1 is liable to set aside under the electoral rules and the petitioner is liable to be declared duly elected in place of respondent no.1 as the member of the Cantonment Board from Ward No.6?
Onus of proving this issue was upon the election petitioner. In view of my findings with regard to the issues no. 2 to 5 which are not being repeated for the sake of brevity, I hereby hold that the election of the respondent no.1 as Member of the Ward No.7 is not liable to be set aside nor the petitioner is liable to be duly elected. Issue is decided in favour of the respondent and against the petitioner.
Relief:
In view of my findings with regard to the various issues, I hereby hold that the election petitioner has not been able to prove and substantiate the allegations made by her in paragraph 10, 11 and 12 of the petition and also that the votes have been improperly rejected and if accepted could have materially affect the result of the election. She is further unable to prove that there has been non compliance of The Cantonment Act and Cantonment Electoral Rules or that the circular issued on 17.5.2008 was not 44 properly conveyed to the election petitioner which affect the result of the elections.
The election petition is hereby dismissed. Parties to bear their own costs. The original record of the election, if any, is directed to be returned. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 6.3.2010 Addl. Sessions Judge (NW)-II,
Rohini Courts, Delhi
45
Suit No. 93/2008
Anita Sehrawat Vs. Neena Sharma
6.3.2010
Present: None for the parties.
Arguments have been heard by the undersigned and therefore, in view of the directions of the Delhi High Court bearing No. 24/DHC/Gaz./G-1/VI.E.2 (a)/2010 dated 8.2.2010, orders were to be pronounced by this court.
Today, vide my separate detailed order dictated and announced in the open court but not yet typed, the election petition is hereby dismissed. Parties to bear their own costs. The original record of the election, if any, is directed to be returned. File be consigned to Record Room.
(Dr. Kamini Lau) ASJ(NW)-II: Rohini 6.3.2010 46