Punjab-Haryana High Court
Harmel Singh vs Mohan Singh And Ors. on 22 March, 2002
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. Election to the post of Sarpanch of Gram Panchayat Baraichan, Block and Tehsil Amloh District Fatehgarh Sahib, was held on June 21, 1998. The appellant-respondent No.l Shri Harmel Singh was declared elected by securing 285 votes. He had won by a margin of eight votes.
2. Petition under Section 74 and 76 of the Punjab State Election Commission Act, 1994, had been filed before the Election Tribunal, Fatehgarh Sahib. The election has been challenged on the ground that the nomination paper of appellant-respondent No. 1 had been incorrectly accepted despite the objection raised to the extent that he had not filed receipt of "CHUHLA TAX" and had also unauthorisedly occupied Sare-aam Rasta. Despite these objections, the nomination paper of appellant-respondent No. 1 had been accepted by the Returning Officer. It has also been alleged that the appellant-respondent No.l incurred disqualification as he had entered into a compromise in respect of FIR No.24 dated 5.7.95 relating to offences under Sections 326/324/323/34 IPC. The compromise was effected on June 17, 1998 and as a result thereof obtained 25 votes of the family of Jarnail Singh and Jagtar Singh. Such act falls within the mischief of the grounds for challenging the election.
3. The petition was contested by the appellant-respondent No.l. Upon the pleadings of the parties issues were framed. Oral as well as documentary evidence had been brought on record.
4. The Tribunal has returned the finding that Chuhla tax had not been paid by appellant-respondent No. 1 and that this fact has been admitted by him in his own statement. The plea has been taken that his house falls outside the "Lal Lakir" of the village, as such, he is not liable to pay Chuhla tax. The Tribunal has observed that there is no provision contained in the Punjab Panchayati Raj Act, 1994, that the Chuhla tax is not leviable upon a person living outside the Lal Lakir. Reference has been made to Section 88 of the aforesaid Act and that resultantly-respondent No. 1 suffered disqualification for being chosen as Member of the Panchayat as envisaged under Section 208(1)(i) of the aforesaid Act. Reference has also been placed upon a judgment rendered in re: Ram Chander and Anr. v. Addl. District Judge, (1988-2)94 P.L.R. 117. It has been observed that wrong acceptance of the nomination papers could result into incurring disqualification and the election deserves to be set aside.
5. So far as withdrawal of the FIR is concerned, the said application presented in the Court of SDJM Amloh was rejected vide order dated July 25, 1998. However, the said FIR was quashed by this Court vide judgment dated October 9, 1998. The question raised is: whether an act of filing an application for compounding an offence would amount to corrupt practice under Section 108 of the Punjab State Election Commission Act, 1994, and that such act has materially affected the result of the election as envis-aged under Section 89 of the aforesaid Act.
6. The Tribunal has observed that filing of an application for seeking withdrawal of the FIR amounts to an act of inducement for obtainment of the votes and that such act could amount to a corrupt practice as envisaged under Section 89 of the Punjab State Election Commission Act, 1994.
7. The Tribunal has arrived at a conclusion that non payment of Chuhla Tax by appellant-respondent No.l has culminated into suffering disqualification as envisaged under Section 208(1)(i) of the Punjab Panchayati Raj Act, 1994. He has also held that the act of filing an application for seeking withdrawal of FIR just before four days of the election would amount to inducement for seeking votes by the persons named in the FIR. Resultantly, the corrupt practice stands established.
8. The election of appellant-respondent No. 1 has been set aside and the next candidate having secured highest number of votes has been declared elected i.e. petitioner-respondent No. 1 Shri Mohan Singh son of Shri Kartar Singh. The appellant aggrieved of the order dated February 19,2002, has filed the present appeal. Notice of motion was issued on March 11, 2002 and that the counsel for the Caveator accepted notice and argued the matter.
9. Learned counsel for the appellant has argued that the Tribunal has fallen into error while holding that the appellant-respondent No. 1 had not paid the Chuhla tax which fact is stated to have been admitted by appellant-respondent No.l. The statement of appellant-respondent No. I as recorded by the Tribunal has been produced in Court which has been perused and so also the statement of Surinder Kumar, Secretary, Gram Panchayat Baraichan. The Secretary Gram Panchayat has categorically stated that no Chuhla tax is due and payable by Harmel Singh. He has also stated that Harmel Singh has lived in this village for quite some time and that he has constructed his house outside Lal Lakir. He has also stated that the Chuhla tax is received against the house. Appellant-respondent No. 1 while appearing as is own witness categorically stated that his house has been constructed outside the Lal Lakir and that whosoever built his house outside the Lal Lakir is not liable to pay house tax. He has also categorically denied that the FIR had been compounded for the purpose of inducing the accused named in the FIR for claiming votes in his favour. He has also admitted that no Chuhla tax had been paid by his father or by him. This statement has been clarified that since they are living outside the Lal Lakir, they are not required to pay the Chuhla tax. He has also stated in his cross-examination that the compromise was effected between the parties due to the indulgence of the elders and the common friends in the village. It is a different matter that the date in the case happened to be near the elections. It has been categorically denied that any of those persons who had been named in the FIR had obliged him for winning the election.
10. It has been argued that the Tribunal has not at all noticed the statement of the Secretary of the Gram Panchayat wherein he has categorically stated that Chuhla tax is not due and payable by Harmel Singh and that no balance in this regard is due from him. He has not been able to show as to whether the case of Harmel Singh could be subjected to Chuhla tax and that no corroborative evidence in this regard has been produced by the petitioner-respondent No. 1. In the absence of any cogent evidence, the Tribunal could not have arrived at a conclusion that he appellant-respondent No.l suffered any disqualification.
11. It has been further argued that so far as compounding of the FIR is concerned or filing of an application for withdrawal of the FIR is concerned, no corroborative evidence has been brought on record that such application had been filed either to oblige the accused named in the FIR or upon filing of such application, the votes were casted by the said persons in favour of appellant-respondent No. 1. It is also admitted fact that such application had been rejected by the Court and that ultimately the FIR was quashed by this Court vide order dated October 9,1998 i.e. much after the election. The inference drawn by the Tribunal is based on conjectures and surmises. It is not understandable from where the figure of 25 members has been coined by petitioner-respondent No.l and it has resultantly weighed with the Tribunal. It is absolutely incorrect that the nomination papers of appellant-respondent No. 1 were incorrectly accepted by the Block .Development and Panchayat Officer, Amloh.
12. It has been argued that for the purpose of establishing corrupt practice a strict proof is necessarily to be brought on record. Inconsistent and vague evidence cannot be made the basis for establishment of corrupt practice. In the case at hand, it has nowhere been established that by way of filing an application for seeking withdrawal of FIR in any manner could be read as an act of inducement for seeking votes from the persons named in the FIR. In any case, the said application was dismissed and ultimately the FIR was quashed by this Court much after the date of the election. The suggestion in this regard has been emphatically and categorically denied by appellant-respondent No. 1. The petitioner-respondent No. 1 has not been able to establish the factum of inducement by way of any independent corroborative evidence. Reference has been placed upon a judgment of the apex court in re : Laxmi Narayan Nayak v. Ramratan Chaturedi and Ors., A.I.R. 1991 S.C. 2001.
13. It has been further argued that the proof which is brought on record must be beyond any reasonable doubt and that mere conjectures and surmises cannot be allowed to substantiate the allegations of corrupt practice. The petitioner-respondent No.l has not been able to substantiate his allegations by way of summoning the persons named in the FIR for establishing such act. Acceptance of corrupt practice is a serious matter arid, therefore, needs to be established by way of subjecting the evidence to litmus test. The evidence relied upon by the Tribunal cannot be termed as direct evidence and not even remotely linked evidence. The date of hearing of the case had fallen during the elections and that the application for settling the dispute between the parties had been made on account of indulgence of the elders and the common friends. However, the application was rejected and finally the FIR was quashed by this Court, which fact dewaters the approach adopted by the Tribunal. Reliance has been placed upto a judgment of the apex Court rendered in re; Surinder Singh v. Hardial Singh and Ors., A.I.R. 1985 S.C. 89 and also in re; Manmohan Kalia v. Shri Yash and Ors., A.I.R. 1984 S.C. 1161.
14. On the other hand, learned counsel for the caveator/respondent No.l has argued that the non payment of Chuhla tax has been categorically admitted by appellant-respondent No. 1 and that the tribunal has come to a correct conclusion that on account of admission made by appellant-respondent No.l, it can be safely inferred that he had incurred disqualification and the objection raised in respect thereof had been wrongly rejected by the Returning Officer and that the nomination papers had been incorrectly accepted.
15. It has been further argued that admittedly the FIR was registered on July 5, 1995 and for almost three years nothing happened between the parties but suddenly just four days before the election an application had been filed by appellant-respondent No.l for withdrawal of the case. It is far too obvious that to persons against whom this FIR had been registered are the residents of the village and are the voters for the election of Sar-panch and Ranches. It is a settled principle that each vote counts for winning the election. The approach adopted by appellant-respondent No. 1 by way of filing an application for seeking dismissal of FIR was made with one objective i.e. to obtain votes of the persons named in the FIR, Such act by which the votes are induced to be casted votes in favour of a candidate, certainly amounts to corrupt practice and definitely falls within the mischief of the provisions of the statute. It is not necessary that illegal gratification may be given in terms of money but such kind of relief also amounts to passing gratification for the purpose of obtainment of vote/votes. It is a separate matter that the application was not maintainable as challan had been put up and the matter could not be compromised being not compoundable. The quashing of the FIR after the date of election is of no consequence but the factum that an application had been filed just four days before the election spells out the mind of the candidate. The irresistible conclusion is that the application had been filed only to oblige the persons named in the FIR and that resultantly they would caste votes in favour of appellant-respondent No. 1. He has placed reliance upon a judgment of this Court as has been noticed above i.e. Ram Chan-der's case (supra).
16. it has been further argued that if a person is found in arrears of hose tax the election of such a person deserves to be set aside. In the case at hand, objection in this regard was raised at the time of filing of the nomination papers but the Returning Officer brushed aside the objection and proceeded to accept the nomination paper of appellant-respondent No.l. The admission on the part of the appellant-respondent No.l.is self explanatory and no further evidence was required to be led for coming to the conclusion that his nomination papers had been incorrectly accepted by the Returning Officer. Thus, the Tribunal came to a correct conclusion in setting aside the election of appellant-respondent No. 1.
17. I have considered the rival contentions of learned counsel for the parties" and I have also perused the statements of the witnesses produced before the Tribunal. I am of the considered opinion that the Tribunal has fallen into error by holding that the appellant-respondent No. 1.is in arrears of Chuhla tax. In fact the Secretary of Gram Panchayat has categorically stated that no Chuhla tax is payable or is due from Harmel Singh i.e. appellant-respondent No.l. This cogent piece of evidence which has come from independent quaners has not been noticed by the Tribunal. The Tribunal has further fallen into error by noticing only the solitary statement of appellant-respondent No.l that he has not paid the Chuhla tax but has categorically missed out on the explanation that no Chuhla tax is payable by the persons who reside or who have constructed their houses outside the Lal Lakir. Admittedly, appellant-respondent No. 1. has constructed his house outside the Lal Lakir which fact stands established from the statement of Secretary of Gram Panchayat. In view of this fact, the Returning Officer correctly ignored the objection and accepted the nomination paper of appellant-respondent No. 1.
18. So far as inducement on the ground of filing application for compounding of the case is concerned, I am not impressed by the finding returned by the Tribunal. The Tribunal has based its finding on buts and ifs. By filing an application it cannot be inferred that the person named in the FIR must have casted votes in favour of appellant-respondent No.l. It has been contended that in fact 25 members of the family of the persons named in the FIR must have casted votes in favour of appellant-respondent No. 1. The fact of the matter is that the appellant-respondent No. 1. has won the election by a margin of eight votes only. However, a miserable effort has been made for producing the evidence on record to the effect that the appellant-respondent No.l. had induced some persons by way of filing an application just before four days to the election. It is a matter of fact that the FIR was quashed by this Court and that the application for seeking compounding of the offence was dismissed after the elections. It has also been noticed that the FIR could not be withdrawn as the offences described are non compoundable and that the challan already stood presented to the competent Court. In view of these facts, it was too much for the Tribunal to have inferred that by way of filing an application the appellant-respondent No.l had induced the persons named in the FIR for casting votes in his favour.
19. It is the settled law that for establishing corrupt practice the evidence has to be brought on record which must stand the test beyond any reasonable doubt and should be corroborative to the extent that there is no scope of vague conclusions anywhere. In the case at hand, no such evidence is forthcoming on the record. Thus, the Tribunal has fallen into error in setting aside the election of appellant-respondent No. 1. In a democratic set up the view point of majority should not be disturbed in a light hearted man-
ner.
20. In view of the above, the appeal is accepted and the impugned order dated Feb ruary 19,2002 passed by the Election Tribunal, is set aside. The election of appellant-re spondent No. 1 Sh. Hartnel Singh, as Sarpanch is maintained. No costs.