Delhi District Court
Nisar Ahmed vs Farhad Suri on 24 October, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
CS No.46/2007
Nisar Ahmed,
S/o Hazi Israr Ahmed,
R/o 30H, Near Kali Masjid,
Basti Hazrat Nizamuddin,
New Delhi110013
........Petitioner
Versus
1. Farhad Suri
G58, Nizamuddin West,
New Delhi110013
2. Mohd. Kalim Khan,
123, Gaffur Nagar,
Jamia, Okhla,
New Delhi110025
3. Amir Ahmed.
108-A Mohalla Kot,
Nizamuddin West,
New Delhi110013.
4. Mohd. Shahwar Khan,
33, Kali Masjiod,
Nizamuddin West,
New Delhi110013
5. Surender Pal Singh
39D, Pocket1, MIG
Mayur Vihar - III,
Delhi 110096
: 1 :
6. Mr. Indu Shekhar Mishra,
Returning Officer,
State Election Commission,
Kashmiri Gate, Delhi
.................Respondents
Date of Institution: 23.4.2007
Arguments heard on: 21.10.2009
Date of Decision: 24.10.2009
: J U D G M E N T :
This election petition has been filed under Section
15, 17, 19 of the Delhi Municipal Corporation Act, 1957 read
with Election of Councilors Rules, 1958, by the petitioner
Nisar Ahmed who is one of the contesting candidate in
respect of the elections held on 5.4.2007 to the Municipal
Ward no. 154, Nizamuddin Delhi, for which counting was
conducted and results were announced on 7.4.2007 where the
respondent no.1 was declared as returned candidate from the
said ward.
BRIEF FACTS:
Petitioner's Case:
The elections for 272 posts of Municipal Councillor from various Wards of Delhi were notified to be : 2 : held on 5.4.2007 and the last date of nomination for the elections was fixed for 17.3.2007; the date of scrutiny of the nomination was fixed as 19.3.2007 and the last date for withdrawal of the nomination was fixed 22.3.2007. The petitioner and the respondent No.1 to 5 had filed their respective nominations by the due date and after scrutiny and the last date of withdrawal, the nomination papers of petitioner and respondent no.1 to 5 were found to be in order and the petitioner and respondent No.1 to 5 participated in the election.
According to the petitioner, as per section 5 of Delhi Municipal Corporation Act, 1957 the power of delimitation of wards for the purpose of election of councilors, Delhi has to be exercised by the Central Govt through Administrator and the administrator of National Capital Territory of Delhi vide order No. 7(367)(a)/2002/UD dated 7.02.2007 has determined the extent of each of 272 wards including the extent of ward no. 154. Like all other ward, the extent of wars no. 154 alongwith the population of the said ward has been defined, determined by the said order, : 3 : which should have form the basis of all future election process including the setting up of polling station. It is stated that the list of the poling stations of the newly delimited ward no. 154 the area which does not from a part of ward no. 154 as per the EB list of the ward i.e. Nala Pushta, Panch Piran, Nizamuddin East, 3 to T395E has been added after the notification of the ward arbitrarily and included in polling station no. 11 (old No.3/90) at Nizamuddin West. It is alleged that the votes received for the said area which do not form the part of ward no. 154 have been wrongly accepted by the officials of the Election Commission and the entire election, as such, is liable to be declared void.
According to the petitioner the polling stations set up for ward no. 154 do not cover the entire area as mentioned the EB list and the order of delimitation and no polling station has been been set up for the following areas: S.No. EB.No. Extent of Area Population 1. 0092 Area between Bahadurshah 493 Zafar Marg and Ring Road T Huts 1118 : 4 :
2. 0028 Jugpua Part A (Mathura Raod) 875
3. 0029 Jugpua Part A (Mathura Raod) 761 4. 0030 Indira Colony Balamiki 613 Mandir, Near Nala & Jungpura CN 1105 5. 0031 Indira Colony Balamiki 614 Mandir, Near Nala & Jungpura CN 106199, CN 118
6. EBNo. Devi Nagar & Kali Mata 7579 0077 to Basti 0087
7. EB No. Sant Nagar ( Ring Road) 1475 0088 to 0090 8. EB No. Village Nagal Machi 885 0091 to 0092 9. EB No. Sidharth Basti & Dhobi 602 0070 Mohalla 10. EB No. Indira Gandhi Camp III 369 0071 Basti 11. EBNo. Indira Gandhi CampI 741 0072 As per the allegations a large population/ voters were deprived of their right to vote by the nonsetting up of : 5 : the polling state on in ward no. 154 and the above population is about 13371 out of total population of 53437 and forms a large percentage of the persons deprived of their right to vote. According to the petitioner the respondent No. 1 has been of very influential person since he was the Mayor of the Corporation just before the election and his mother Mst. Tajdar Babbar has been a very influential politician for last many years and both of them have exercised huge influence over the officials who have totally overlooked the corrupt practices adopted by respondent no. 1 during the course of election. It is further alleged that during the period of election campaigning the respondent no.1 through his supporters has circulated a highly defamatory, derogatory, inflammatory pamphlet with the intention to influence the religious sentiments of Muslim population of the ward against the Bhartiya Janta Party of which the petitioner was a candidate wherein baseless allegations have been made against the petitioner by name and also the senior Leaders of Bhartiya Janta Party with the intention to mislead the Muslim population that the petitioner and his party are against the : 6 : interest of the Muslim population and only the respondent no.1 is concerned about their benefit. It is stated that the respondent no. 1 can be directly linked to the said Pamphlet which among others bear the name of Shri Iliyas Khan and Babar, Polling Agents of the respondent no.1 and several persons named in the said Pamphlet are the responsible officials of the Indian National Congress and its youth wing. It is further stated that the publication of the said is clearly a corrupt practice by the respondent No. 1 and on this ground also his election is liable to be declared void.
It is alleged that the respondent no.1 has intentionally suppressed material information when filing his nomination relating to the pending criminal case i.e. FIR No. 371/2005 Under Section 420/461/463/465/401/120B/34 IPC P.S. Anand Vihar, which has been registered on the directions of the Hon'bl e A.C.M.M., Karkardooma, Delhi and is well within the knowledge of respondent no. 1 who has suppressed the said information at the time of filing of time of nomination. It is stated that the said information if had been known to the voters in the ward, definitely the voters would : 7 : not have voted for a person with criminal background. According to the election petitioner on the date of polling i.e. 05.04.2007 the petitioner visited polling station no. 19 (Old No. 3/110 ) located at 46, Gobind Arneja, Queta DAV Sr. Sec. School, East Nizamuddn at about 11:00 a.m. where he surprised to note that the election officers were even accepting the votes from the voters whose names have been deleted from the list of votes which was being done in active connivance with respondent no. 1 to cause benefit to him and on protest of the petitioner the Election officials stopped the practice when the petitioner has been informed that such practice had been prevalent in most of the polling stations of the ward.
It is pleaded that Smt. Tajdar Babbar, mother of the respondent no.1, who is an MLA was freely roaming about in the polling stations and the area where unauthorized persons are prohibited and was clearly telling the voters to cast the votes for respondent no.1. According to the petitioner one Shri Babar, polling agent of respondent no.1 in polling station no. 8 (Old No. 87) is an MCD employee, presently : 8 : employed in Lala Hardayal Library, opposite old Delhi Railway Station and being a Govt. Employee can not indulged in political activities without seeking and permission from his employers. It is alleged that the respondent no.1 has been wrongly declared as returned candidate in the said election and the election is liable to be declared as void.
Respondent's Case:
The respondent no.1 Farhad Suri has filed his written statement wherein he has raised a preliminary objection that the election petition is not maintainable and is liable to be dismissed as the same does not comply with statutory requirements of Section15 of the Delhi Municipal Corporation Act, 1957 read with Rule 79 (a) of the Delhi Municipal Corporation (Election of Councillors) Rules, 1970. It is stated that the Petitioner has not impleaded and joined all the candidates as respondents in his Petition due to which reason the petition is liable to be dismissed under Rule 81 of Delhi Municipal corporation (Election of Councillors) : 9 : Rules, 1970. According to the respondent no.1 apart from the petitioner and respondent 1 to 5 there was one other Candidate namely, Sh. Devender Dua S/o Sh. Balwant Rai Dua whose nomination was rejected but the said candidate has not been joined as respondent in the present Petition. It is further stated that the petitioner has not deposited the requisite amount of Rs.3,000/ as security with the Election Commissioner as mandated under Rule 89 of the Rules and therefore, the petition is liable to be dismissed under Rule 81 of the Rules. According to the respondent no.1, the petition has not been presented within the statutory period of fifteen days from declaration / publication of Results as prescribed under Section 15 of the Act for filing of Election petition and the petitioner has failed to give material facts and the grounds on which he has challenged the election of the respondent no.1.
On merits, the respondent no. 1 has denied the various allegations made by the petitioner. He has denied that the votes received from an area which does not form the part of Ward no. 154 have been wrongly by the officials of : 10 : the election Commission and that the polling stations set up for ward No. 154 do not cover the entire area a mentioned in the order of delimitation. He has admitted that he was the Mayor of Delhi Municipal Corporation and his mother has been a successful politician and social worker for the last many years but it has been denied that he or his mother have any influence over the officials of election commission. It is stated that no corrupt practices were adopted by the respondent no.1 and the allegations in this regard are false, malicious and vexatious. According to the respondent no.1, a reading of the pamphlet clearly shows that the issues raised were those of local development of the area and the much professed political views of the Bhartiya Janta Party and nothing defamatory or derogatory or inflammatory existed in the said Pamphlet at all. It is stated that the local residents raised the issues relating to the development carried out during the earlier tenure of the respondent no.1 and the political views of the party to which the petitioner belongs and the other issues relate to the comparison of the candidates and their qualification and past achievements.
: 11 : According to the respondent no.1, he had no knowledge about the alleged FIR No. 371/2005 of P.S. Anand Vihar till he received the copy of the present Election Petition filed by the Petitioner and even otherwise, as per law/ rules, there is /was no requirement in the nomination paper or in the accompanying affidavit to provide any such information. It is denied that the election officers were accepting the votes from the voters whose names have been deleted from the list of of voters or that they were doing so in active connivance with the respondent no.1. It is also denied that Shri Babar, Polling Agent of Respondent No.1 in polling Station no. 8 (Old no. 87) is an MCD employee, presently employed in Lala Hardyal Library, Opposite old Delhi Railway Station and according to the respondent no.1 there was no such Polling Agent of the respondent and even otherwise Lala Hardayal Library is being run by an NGO and as such its employees are not employees of MCD. The respondent no.1 has also denied that he has been wrongly declared as returned candidate in the said elections or the election is liable to the declared as void.
: 12 : The record reveals that the respondents no. 2 to 5 did not appear before this court and therefore, vide order dated 1.10.2007 the respondents no. 2 to 5 have been proceeded exparte.
The respondent no.6 Indu Shekar Mishra Returning Officer of the Ward no. 154 has filed his written statement wherein he has also raised a preliminary objection that the petition is liable to be dismissed on the sole ground that all the candidates at the election are not arrayed as parties in the petition. According to the respondentno.6, it is no longer resintegra that candidate at the election would cover even the candidates who filed the nominations regardless whether they actually contested the election or not and the law on this is in harmony with the Delhi Municipal Corporation (Election of Councilors) Rules, 1970. It is stated that Sri Vineet Seth and Sri Hasin Ahmed and Sri Devender Dua were all candidates who have filed their nominations and in the absence of said persons the election petition itself is liable to be dismissed.
: 13 : On merits, it is stated that after the notification of delimitation was issued a survey was conducted and accordingly, a draft notification was issued on 5.03.07 whereby Nala Pusta, Panch Piran, Nizammudin West were added in the list of pooling station of Ward no. 154 and objections were accordingly invited from all concerned including the political parties on 8.03.07. There was no objection from any quarter on this and only one objection with regard to EB no. 92 to 101 received which after verification was added in he list. The respondent no. 6 has placed the correct position of EBs which is as under:
EB No Status a.0092 After the survey, it was found that the area
was lying outside the ambit of ward no. 154 and after inviting objections as stated above, the decision was taken to delete.
b.0028 All the voters of the area were included in polling Station No. 22(3/117).
c.0029 All the voters of the area were included in polling Station No.17(3/96).
c.0030. Survey conducted found that area was lying outside the ambit of ward no. 154 and after : 14 : inviting objection from the public, the decision was taken not to include the same in ward No in question.
d.0031 Same as Sl No. c above.
e.0077 to 0087 The jhuggies were removed and since there was no voter in the polling station, hence no polling station.
f.0088 to 0090 Same as SI No e above.
g.0091to 0092 The jjuggies were removed and thee were only 22 voters present in polling station and they were included in polling station no. 20 (3/115).
h. 0070 All the voters were included in the Polling Station No. 26(5/77) i.0071 The part of the area under question has been included in polling station no. 30(5/104) and the rest of the portion has been included in the polling station of ward no 156.
j.0072 The part of the area under question has been included in polling station no. 30(5/104) and the rest of the portion has been included in the polling station of ward no 156.
Therefore, it is evident no genuine voter was prevented from casting his vote. The respondent no.6 has : 15 : denied that any corrupt means was used by the Respondent no.1, as alleged and according to him all the allegation appear to be after thought.
ISSUES FRAMED:
On the basis of the pleadings of the parties vide order dated 17.10.2007 this court has framed the following issues:
1. Whether the Polling Station have not been set up as per the newly delimited Ward No. 154 and the area which does not fall part of Ward No. 154 as per EB list of the said Ward arbitrarily included in Polling Station No.11? (OPP).
2. Whether large population / voters were deprived of the rights to vote by non setting up of polling station in Ward No. 154? (OPP).
3. Whether the respondent no.1 and his supporters had circulated the pamphlets / appeal with a view to influence the religious sentiments of Muslim candidates against BJP? If yes its effect. (OPP).
: 16 :
4. Whether the respondent no.1 and his mother who is sitting MLA exercised huge influence over the officials who have overlooked corrupt practices committed by respondent no.1 on the date of polling? (OPP).
5. Whether the election of respondent no.1 is liable to be set aside on the ground of malpractice and corrupt practice? (OPP).
6. Relief.
EVIDENCE:
In support of his case the election petitioner has examined as many as 5 witnesses. PW1 Sanjay Sharma was the election agent of the petitioner. He has in his examination in chief by way of affidavit supported the case of the election petition to the extent that the respondent no.1 Farhad Suri and his mother Smt Tajdar Babbar has been meeting the officials of the Presiding Officer. According to him, Smt. Tajdar Babbar was canvassing the respondent no. 1 inside the polling booths and has been influencing not only the voters but also the Presiding Officers present at the booths.
: 17 : In his crossexamination PW1 has admitted that he has not given any details of booth and name and addresses of the persons and the presiding officers appointed at the booth, where the alleged voters were influenced and did not take any action as alleged by him. He is unable to tell whether in Sidharth Basti, there were 7/8 booths and according to him there was only one polling station. The witness has deposed that he has not given any written complaint to the Election Commission with regard to the allegations but he had only telephonically informed them. The witness does not remember the numbers on which he had made a call but according to him, he had spoken to Mr. Rao, who was the election incharge for MCD polling. He has admitted the copy of the affidavit which was supplied to the counsel of respondent no.1 and 6 which is Ex.PW1/DA. He has also placed on record the pass given to him in his capacity as Election Agent which is Ex.PW1/DB. He has admitted that whenever the candidate or the election agent finds an objection or facing a problem, he is required to report the same to the Presiding Officer and that there is no : 18 : documentary record of any complaint made in writing to any of the presiding officer. The witness has admitted that he has not mentioned the exact time of any of the incidents in his affidavit. The witness is unable to tell the names of the voters who were allegedly being influenced by Mrs. Tajdar Babbar and according to him, there were about 150200 persons standing at the spot.
PW2 Dilshad Ahmed who was the polling agent for the petitioner in Polling Station no. 8/87, Nizammudin in Ward no. 154. He has in his examination in chief by way of affidavit deposed that on the date of polling Babar @ Abuzar Raza Abbasi S/o Late Sh. Munawar Ali Abbasi was the polling agent for respondent no.1 Farhad Suri. According to the witness, Abuzar Raza Abbasi is an employee with Lala Hardayal Municipal Library of which the respondent no. 1 was the exofficio Chairman during his tenure as Mayor. He has further deposed that Smt. Tajdar Babar, mother of the respondent no.1 and MLA from the concerned area was freely roaming in the polling station and was repeatedly talking and influencing the voters and the Presiding Officer.
: 19 : He has testified that his protest in this regard was ignored by the Presiding Officer.
In his crossexamination the witness has deposed that the petitioner is his real brother. He has denied that there was no polling agent by the name of Babar but according to him, the polling agent was Abuzar Raza Abbasi who is also known as Babar. The witness is not aware about the source of funds required for running of Hardayal Municipal Library and states that he does not have any proof that Sh. Babar is employed with Hardayal Municipal Library. He has testified that he did not file any written complaint in respect of any corrupt practice nor informed his brother about any such incident but had orally raised objections before the polling officer. According to PW2, Smt. Tajdar Babar remained in the polling booth for about 34 minutes and spoke to the voters, pooling agents and the presiding officer but did not made any complaint nor raise any objection.
The election petitioner Nisar Ahmed has examined himself as PW3 who has in his examination in chief by way of affidavit corroborated what he has earlier : 20 : stated in the main petition. He has placed on record the gazette notification dated 7.2.2007 which is Ex.PW3/1; copy of the list of EBs of ward no. 154 (Nizamuddin) which is Ex.PW3/2; copy of the polling station supplied to him by the respondent no.6 at the time of conducting the elections which is Ex.PW3/3; the receipt no. 71 dated 23.10.2007 issued by the office of Director of Census Operations which is Ex.PW3/4; EB map for the concerned area which is Ex.PW3/5; the original pamphlet issued by the respondent no. 1 which is Ex.PW3/6; copy of FIR No. 371/05 which is Ex.PW3/7; letter of offer issued to one Ashok Kumar dated 17.2.2007 which is Ex.PW3/8; the receipt no. 3695609 dated
6.6.2007 which is Ex.PW3/9; copy of the letter of offer to Sh. Abzur Raza Abbasi @ Babar dated 20.2.2007 which is Ex.PW3/10 and the EB plan of the area which is Ex.PW1/11.
In his crossexamination the witness has stated that he did not file any objection with regard to the discrepancies as listed by him in para 2(i) of his affidavit. He is unable to tell the EB Nos. of the blocks for which polling : 21 : stations have been set up. He has further stated that he did not lodge any formal complaint with the Election Commission for non setting of the polling stations nor his party lodge the same. He has also admitted that he has not mentioned the name of Abuzar Raza Abbasi in his plaint and that he did not mention in his plaint or replication the Babar was only an alias name of Abuzar Raza Abbasi. The witness has further admitted that there was no agent by the name of Babar but states that his actual name is Abuzar Raza Abbasi but he cannot produce any documentary record to show that Abuzar Raza Abbasi is known as @ Babar. PW3 is unable to tell how many branches of Hardayal Library are there in Delhi but according to him, the said library is being managed by a committee comprising of the Mayor of Delhi alongwith 6 other councillors. He admits that apart from the aforesaid there are some other persons also who are managing the library amongst the board of trustees/ governors. According to the witness, the funding of the library is by MCD and he has no idea with regard to the annual fund/ grant to the library bu the MCD. The witness has further stated that he had seen : 22 : Smr. Tajdar Babar inside the polling station and she was present in the restricted area during the lunch time but he did not lodge any complaint. He is unable to tell whether the respondent no.1 had knowledge of the FIR No.371/2005. PW3 has admitted that some Jhuggi had shifted from the ward in question i.e. 154 and that the name of Farhad Suri is not mentioned amongst the names who have issued the appeal which is Ex.PW3/6.
The petitioner has also examined one Om Prakash Sharma from Hardayal Muncipal Library as PW4 who has brought the summoned record pertaining to the appointment of Ashok Kumar S/o Sh. Om Prakash and Abuzar Raza Abbasi S/o Late Sh. Munnawar Ali. He has proved the letters dated 13.2.2007 and 20.2.2007 which are already Ex.PW3/8 and Ex.PW3/10.
In his crossexamination the witness has stated that Ashok Kumar was appointed on daily wages on 13.2.2007 but he is not aware whether Sh. Ashok Kumar is actually working in the library or not.
: 23 : PW5 R.K. Manocha has brought the record pertaining to map of enumeration block no. 92 of wards no.1 and EB no. 75 of Ward no.5. He has proved the map of EB no. 92 which is already Ex.PW3/11 and the map of EX. no. 75 which is already Ex.PW3/5.
In rebuttal the respondent no.1 Farhad Suri has examined himself as RW1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the written statement.
In his crossexamination the witness has admitted that he was the Mayor of Delhi for a period of one year till the election conducted on 5.4.2007 and that Mayor is Ex. officio Chairman of the Managing Committee of Lala Hardayal Municipal Library. He has further admitted that the appointments in Hardayal Library are made by the members of the Managing Committee apart from the Secretary and other concerned officers. According to the witness, it is always the practice and the convention to nominate either the leader of the opposition or one of the prominent members of the opposition as one of the members of the managing : 24 : committee. He has stated that he had no knowledge of the registration of FIR No. 371/05 against him at PS Anand Vihar on the complaint of Sh. Hari Prakash. The witness has admitted the pamphlet Ex.PW3/6 but according to him, the same was not published at his instance. He has deposed that the expenses account submitted with the affidavit dated 13.4.2007 which is Ex.RW1/P1 contains two entries at point A and B showing the payment of Rs.1,000/ and Rs.4,00/ to M/s. ZComputers on 4.4.2007 towards publicity/ handbills account vide serial no. 55 and 56 of the voucher.
R1W2 Amir Hassan has stated that on the date of polling Smt. Tajdar Babar did not come to his shop which is in the area. According to him, whenever she visits the area, she come to her shop. R1W3 Shahdab Abbasi; R1W4 Mohd Shakir; R1W5 Dilshad Beg; R1W6 Fazal Bin Akhlaq; R1W7 Giri Lal; R1W8 Sohan Vir Singh; R1W9 Devender Kumar and R1W10 Baldhari Singh are all the residents/ voters of the area who had cast their votes in various polling booths at different points of time and have deposed that there was no political leaders i.e. either the respondent no.1 or Smt. Tajdar : 25 : Babar.
R1W11 R.K. Singh, Nodal Officer from Bharti Airlet Ltd. has brought the call details of mobile no.9810095350 for the period 15.3.2007 to 5.4.2007 running into 23 pages which is Ex.PR1/W11B.
R1W12 Rakesh Arora has in his examination in chief stated that he was on MCD election duty as ARO for Ward no. 154 Nizamuddin on 5.4.2007. According to him during the election duty he did not receive any complaint from anyone regarding any malpractice nor is he aware about any complaint received by the Returning Officer.
R1W12A Hira Lal CO MCD, Civil Lines (wrongly typed as R1W12) has placed before this court copy of the affidavit filed by Sh. S.K. Sabharwal, Director, Community Services Department, MCD filed in CWP No.3139/99 titled as ' Usha Deran Vs. MCD & Ors.' which affidavit is Ex.R1W13/A. According to the witness, Hardayal Municipal Library is an independent body having its independent management and the MCD is only providing grant to the Library.
: 26 : R1W13 S.K. Sabharwal has also proved having filed the affidavit Ex.R1W13/A. This court has also summoned the Secretary, State Election Commission Sh. K.R. Kishore who has been examined as CW1 who has brought the various notifications, electoral rolls of ward no. 153, 154, 156, the details of the polling stations set up in the aforesaid wards and registers of the Presiding Officer alongwith the Booth Wise results of ward no. 154 and 156. According to CW1, EB no. 92 of ward no. 154 as shown in the notification dated 7.2.2007 which is already Ex.PW3/1 has been wrongly put in Ward no. 153. He has stated that as per the electoral rolls of ward no. 153 where EB No. 92 has been wrongly shown which electoral rool is Ex.CW1/A as many as 161 voters have been wrongly shown in ward no. 153 in polling station no. 4 of ward no.
153. According to him, this mistake occurred as this electoral roll was prepared by the CEO office and was never detected on account of the similarity in the names of the areas. He has placed before this court the polling officers registers of : 27 : polling station no.4 ward no. 153 in a sealed cover which is Ex.CW1/B and the marked copy of the electoral roll of polling station no. 4 in a sealed cover which is Ex.CW1/C. FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no.1 Whether the Polling Station have not been set up as per the newly delimited Ward no.
154 and the area which does not fall part of Ward no. 154 as per EB list of the said ward arbitrarily included in Polling Station no. 11?
Issue no.2 Whether large population/ voters were deprived of the rights to vote by non setting up of polling station in Ward No. 154?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the election petitioner. The : 28 : case of the petitioner is that the polling stations have not been set up as per the newly delimited ward no. 154 and the area which does not form a part of ward no. 154 as the EB list of the said ward have been arbitrarily included in the polling station no. 11 by the officers of the respondent no. 6 thereby depriving a large number of population/ voters from their right for non setting up of polling station in Ward no. 154. In this regard the petitioner has examined himself wherein he has duly proved the order dated 7.2.2007 bearing no. 7(367) (8) /2002/UD determining the extent of 272 wards which had been admitted by all the respondents and is not in dispute. He has in his examination in chief by way of affidavit submitted that as per the said order ward no. 154 (Nizamuddin) under consideration includes the DMC Ward no.1 (part) EB No. 92 101; DMC ward no. 2 (part) EB No. 146, 7797; DMC Ward no.6 (part) EB No.6681 having total population of 53,437 with a Sc population of 8,858. Ld. Counsel appearing on behalf of the election petitioner has placed his reliance on the pleadings of the petitioner in para 5 of the election petition wherein it has been specifically averred that after the : 29 : notification dated 7.2.2007 which is Ex.PW3/1 certain areas which do not form of Ward no. 154 as per the EB List of the said ward i.e. Nala Pushta, Panch Piran, Nizamuddin West, 3 to T395E were added arbitrarily and included in polling station no. 11 (old no.3/90) at Nizamuddin West and as such the votes have been received for the said area which does not form a part of ward no. 154 and have been wrongly accepted by the officers of the Election Commission. Ld. Counsel has pointed out that the respondent no.1 in this regard gave a vague reply to the aforesaid allegation that no area had been added to ward no. 154 but has not denied the inclusion of Nala Pushta, Panch Piran, Nizamuddin West, 3 to T395E in ward no.154 after the notification thereby amounting an admission in this regard. He has further pointed that the respondent no.6 has also admitted that the Nala Pushta, Panch Piran, Nizamuddin West, 3 to T395E were added in the list of polling station of ward no. 154 after the notification. It is, however, alleged that after the notification a survey was conducted and draft notification was issued on 5.3.2007 proposing their intention to add certain areas in ward no. 154 : 30 : to which no objection had been received. It is further pointed out that there has been no denial by the respondent no.6 to the aforementioned aspect.
The petitioner has also placed on record the list of EBs of Ward no. 154 as well as the list of polling stations supplied to him by the respondent no.6 which is Ex.PW3/2 and Ex.PW3/3 which proves that Nala Pushta, Panch Piran, Nizamuddin West, 3 to T395E do not find a mentioned in the notification Ex.PW3/1 and the list of EBs which is Ex.PW3/2 establishes that the above areas were added in ward no. 154 after the issuance of the notification Ex.PW3/1.
Ld. Counsel appearing on behalf of the respondent no.1 on the other hand has submitted that this court does not have the jurisdiction to look into the issue of delimitation and setting up of polling station as the aforesaid issues fall within the domain and jurisdiction of Election Commission and the Government and the election can only be set aside on any of the grounds mentioned in Section 17 of the DMC Act. It is submitted that even otherwise the : 31 : election petitioner has failed to prove that polling station were not set up as per the newly delimited ward no. 154 or that the area which do not form a part of ward no. 154 were included in polling station no.11. It is argued that the election was held as per the electoral rolls duly published and finalized by the State Election Commission in accordance with law and as per the delimitation carried out after due notice to all concerned including the political partied and public at large. Ld. Counsel for the respondent no.1 has placed his reliance on the authority of Inderjit Barua & Ors. Vs. Election Commission of India reported in AIR 1984 SC 1912 wherein it has been observed by the Hon'bl e Apex Court that once the final electoral rolls are published and the elections are held on the basis of such electoral rolls, it is not open to any one to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective.
Ld. Counsel for the respondent no. 1 has pointed out that since the election petitioner in his crossexamination has duly admitted that he did not lodge any complaint with : 32 : the Election Commission for non setting up of polling station and further admitted that even his party did not lodge any such complaint and had not filed any objections in this regard to the Election Commission, therefore, the said plea cannot be allowed to be raised at this stage. Ld. Counsel has also pointed out that the election petitioner has in his cross examination also conceeded that after the census of 2001 a large number of jhuggies were removed and people were relocated elsewhere and no population existed in the said area and therefore, there is no question of inclusion of such names in the electoral rolls or setting up of polling stations or booths on the basis of census 2001.
I have considered the rival contentions. I have also considered the material placed on record by the State Election Commission and also the testimony of Secretary, State Election Commission Sh. V.K. Harit who has been examined as court witness. The entire record of the various notifications and the electoral rolls of ward no. 153, 154 and 156 alongwith the details of polling stations set up, have been produced in the court. CW1 Sh. V.K. Harit has also placed : 33 : before this court the register of the Presiding Officer alongwith the booth wise result in respect of ward no. 154 and 156. I have gone through the said record. It is settled law that the election tribunal would have no jurisdiction to go into the question of legality of electoral rolls or of setting up of polling stations or any disputes connected with the same, as it would fall within the purview of the Election Commission. However, as per the provisions of Section 17 of DMC Act the elections of a candidate is liable to be set aside on account of improper acceptance or refusal of any vote or reception of any vote which is void or also non compliance with the provisions of the Act or of any rules or orders made there under, in so far as it concerned the returned candidate. The relevant provisions of Section 17 (d) (iii) &
(iv) of DMC Act are as under:
17. Grounds for declaring elections to be void (1) Subject to the provisions of subsection (2) if the court of the district judge is of opinion:
: 34 :
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent, or
(iii) by the improper acceptance or refusal of any vote or receipt of any vote which is void, or
(iv) by the noncompliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare the election of the return candidate to be void.
Therefore, in view of the aforesaid the election : 35 : tribunal would have the jurisdiction to look into the aspect of improper acceptance or refusal of any vote or receipt of any vote which is void and also on the aspect of non compliance with the provisions of the Act or of any rules or orders made there under. The notification dated 7.2.2007 which is Ex.PW3/1 and the subsequent orders have been made under the provisions of Section 5 and 6 of the DMC Act and any non compliance thereof materially affecting the result of the returning candidate shall render the elections void.
The secretary, State Election Commission Sh. V.K. Harit in his testimony before the court has conceeded that EB No. 92 of ward no. 154 as shown in the notification dated 7.2.2007 which is Ex.PW3/1 has been wrongly put in Ward no. 153 instead of ward no. 154 and as per the electoral rolls of EB No. 92 which has been wrongly put in ward no. 153 has been wrongly put in ward no.153, as many as 161 voters have been wrongly put in ward no. 153 in polling station no. 4 of ward no. 153 as evident from Ex.CW1/A. According to the Secretary State Election Commission this mistake occurred as the said electoral roll was prepared by : 36 : the CEO office and could not be detected on account of similarity in the names of the areas.
I have also perused the polling officer register in respect of polling station no. 4 Ward no. 153 which is Ex.CW1/B alongwith marked copy of the electoral roll of polling station in sealed cover which is Ex.CW1/C, which I have duly perused after breaking open of the seals (with the direction to the Reader to reseal the same with the seal of the court). It shows that as many as 362 voters had cast their votes in the said polling station which also included 161 number of electors of EB no. 92 which were required to cast their vote in ward no. 154 and not in ward no. 153. In so far as the other areas are concerned it has been admitted by the election petitioner himself that after the census of 2001 a large number of Jhuggies were removed from the area in question, which were relocated elsewhere and there being 'ze ro' population the question of setting up of polling station does not arise. Even otherwise the election petitioner and his political party not having objected or challenged the same at appropriate stage, cannot now raise this issue before this : 37 : court. Therefore, in view of my aforesaid findings I hereby hold that the respondent no. 6 has wrongly shown the EB no.92 of ward no.154 in Ward no.153 in violation of the notification dated 7.2.2007 which is Ex.PW3/1 and there has been a non compliance of the provisions of the Act and the orders made thereunder, resulting into improper acceptance of votes of EB no. 92 which were required to be casted in Ward no. 154 and have been wrongly accepted in Ward no. 153. However, since it is only the election of Ward no. 154 (Hazrat Nizamuddin) which are under challenge and under consideration before this court, I therefore, refrain myself from making any observations in so far as the effect of wrong acceptance of these votes of EB no. 92 in Ward no. 153 are concerned.
However, as per the result sheet placed before this court by the Secretary State Election Commission showing the booth wise result of the various wards which has been duly admitted by all the parties before this court and not disputed by any one, the respondent no.1/ returned candidate had polled 6595 votes and the election petitioner had polled : 38 : 3290 votes. Therefore, even if 161 votes have not been received in ward no. 154 on account of non compliance of the provisions of the Act or orders and rules framed thereunder by the respondent no.6 yet it does not materially affect the result of the respondent no.1/ returned candidate, keeping in view the large difference of approximately 3000 votes between the returned candidate and loosing candidate. Therefore, under these circumstances, I hereby hold that the election petitioner has duly proved that the polling station have not been set up as per the newly delimited Ward no. 154 and as many as 161 voters have been deprived of their right to vote in ward no. 154 and have been wrongly made to cast their votes in ward no. 153 but the margin of victory being more than 3,000 votes, this non compliance of the orders shall not materially affect the result of the elections. Issues are decided accordingly.
Issue no.3 Whether the respondent no.1 and his supported and had circulated the pamphlets/ appeal with a view to influence : 39 : the religious sentiments of Muslim candidates against BJP?
Onus of proving this issue was upon the election petitioner. The case of the election petitioner is that the respondent no.1/ returned candidate through their supporters had circulated a highly defamatory, derogatory, inflammatory pamphlet with the intention to influence the religious sentiments of Muslim population of the ward against the political party Bhartiya Janta Party of which the election petitioner was an candidate. It is alleged that baseless allegations have been made against the petitioner and against the senior leaders of Bhartiya Janta Party with an intent to mislead the Muslim population by portraying that the election petitioner and his party is working against the interest of Muslim population and it is the respondent no.1 who is concerned about their benefits. It is argued that the respondent no.1 i.e. the returned candidate is directly linked to the said pamphlet which bears the name of Iliyas Khan and Babar who are the polling agents of the respondent no.1. It is also pointed out that the respondent no.1 is not denying the : 40 : publication of the aforesaid pamphlet which is Ex.PW3/6. Ld. Counsel appearing on behalf of the election petitioner has contended that the contents of Ex.PW3/6 would show that the said poser is a systematic appeal by the agents of the respondent no.1 to vote for the respondent no. 1 on the grounds of religion. It is argued that since the issue of Ram Mandir and Babri Masjid are directly related to the religious sentiments of both Hindus and Muslims and therefore, the aforesaid appeal was directed towards the Muslim community of Ward no. 154 to refrain from voting for the petitioner who was a supporter of Bhartiya Janta Party despite being a Muslim and would not support and safeguards of Muslims. It is pointed out by the Ld. Counsel for the election petitioner that the issue of Ram Mandir and Babri Masjid has no local relevance in Delhi and the manner in which the issue has been raised by the supporters of the respondent no. 1 tentamounts to corrupt practice as defined under Section 22 of the DMC Act read with Section 123 of the Representation of People Act.
: 41 : Ld. Counsel appearing on behalf of the respondent no.1 has argued that the petitioner has failed to discharge the onus to prove that the pamphlet had been issued by the supporters of the respondent no.1 and merely annexing the so called pamphlet/ appeal alongwith the affidavit of evidence is of no consequence and the said document cannot be read into evidence. It is argued that even otherwise, bare reading of the pamphlet/ appeal would show that it is in the nature of providing the details of work done by the respondent no.1 during his earlier tenure as Municipal Councillor and also as Mayor during his term of one year immediately preceding the elections held in 2007. It is also argued that apart from the aforesaid, the pamphlet/ appeal clearly states that the same is in response to the appeal issued by some persons in favour of the petitioner and the answers to seven questions mentioned in the pamphlet have been demanded from the petitioner and his supporters. It is pointed out that both the election petitioner and the respondent no. 1 are Muslims and therefore, the question raised in the pamphlet/ appeal which is Ex.PW3/6 are of : 42 : political nature and does not in any manner affects the religious sentiments of Muslims. Ld. Counsel for the respondent no.1 has placed his reliance on the authority in Kultar Singh Vs. Mukhtiar Singh reported in 1964 SCR 790 and in case of Ebrahim Sulaiman Sait Vs. M.C. Mohammed and Anr. reported in AIR 1980 SC 354.
I have considered the submissions made before me. The provisions of Section 22 (4) of the DMC Act include the publication by a candidate or his agent or by any other person of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal from contest of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate' s election; as corrupt practice. The relevant provisions are as under:
22. Corrupt Practice: the following shall be deemed to be corrupt practices for the purposes of this Act:
: 43 : (3) The systematic appeal by a candidate or his agent or by any other person, to vote or refrain from voting on grounds of caste, race, community or religion or the use of or appeal to, religious symbols, or the use of or appeal to, national symbols such as the national flag or the national emblem, for the furtherance of the prospects of that candidate's election.
(4) The publication by a candidate or his agent or by any other person of any statement of fact which is false, and which he neither believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal from contest of any candidate being a statement : 44 : reasonably circulated to prejudice the prospects of that candidate's election.
Hon' ble Mr. Justice Gajendra Gadkar in the case of Kultar Singh Vs. Mukhtiar Singh (Supra) had observed that:
" ....It is well known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions. So long as law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and Parliamentary life, it would be necessary to remember that an appeal made by any such candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be : 45 : influenced by considerations of religion, race, caste, community or language. This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognized though their composition may be predominantly based on membership of particular communities or religion....."
No doubt the corrupt practice as contemplated under Section 22 (3) & (4) of the DMC Act can be committed by a candidate by appealing to the voters to vote for him on the ground of religion even though his rival candidate may belong to the same religion. What is required to be seen is whether firstly there has been a systematic appeal by the candidate/ his agent/ by any other person; secondly the said appeal is to vote or refrain from voting on the ground of caste, race, community or religion or the use of religious symbols use or appeal to national symbols for furtherance of prospectus of that candidate in the election. Only if all the aforesaid ingredients are satisfied will the : 46 : publication of the pamphlet Ex.PW3/6 tentamounts corrupt practice.
Firstly it is an admitted case of the respondent no.1 that pamphlet in question Ex.PW3/6 had been circulated and he in his crossexamination, the RW1 has admitted that in the expenses account statement submitted alongwith the affidavit dated 13.4.2007 which is Ex.RW1/P1, two entries at points a and B showing the payment of Rs.1,000/ and Rs.400/ to M/s. ZComputers on 4.4.2007 towards publicity/ handbills account vide serial no. 55 and 56 of voucher, though according to the respondent no.1 the pamphlet in question was issued without his consent and when he came to know about it he included the same in his election expenses. Secondly the case of the petitioner is that the statement of fact made in the pamphlet are false. In this regard the respondent no.1 has denied the aforesaid. I have gone through the pamphlet and it is evident from the same that on first page of the pamphlet various services rendered by the respondent no.1 in his capacity as Municipal Councillor have been mentioned. Further, it is also evident that earlier some : 47 : appeal had been made by the people of the area in favour of the election petitioner Nisar Ahmed and the present pamphlet Ex.PW3/6 was issued as an answer to the earlier appeal made by the persons belonging to the BJP. As many as 7 points have been raised which are as under:
1. What has Nisar Ahmed done for development of Basti Hazrat Nizamuddin?
2. Nisar Ahmed has always been the supporter of BJP. Is he in favour of getting Ram Mandir constructed?
3. Smt. Tajdar Babar, MLA and Sh. Farhad Suri had remained Councillor in the area and have worked for the welfare of the area. Similarly the party of Nisar Ahmed Bhartiya Janta Party had also won when Sh.
Atal Bihari Bajpayee, Sh. Lal Krishan Advani, Sh. Jagmohan and Sh. Vijay Pal had also won. Did Nisar Ahmed get any work done pertaining to Hazrat Nizamuddin through these persons?
4. Sh. Jagmohan was the MP from this area and did Nisar Ahmed not take a round of the area alongwith Sh.
: 48 : Jagmohan in the morning at about 56 am when most of the people were sleeping and instigated him to relocate Nizam Nagar, Dildar Nagar, Khusra Nagar etc. and was his intention not to get these places removed?
5. Did the BJP National President Raj Nath Singh not refused to give reservation to Muslims in UP?
6. On 17.3.1990 when in the presence of BJP leader Sh.
Advani, Khurana etc. the police had fired on the people at Shamshan Ghat, why did Nisar Ahmed not oppose the same?
7. Why did Nisar Ahmed not oppose Sh. Jagmohan when the Children Park near Sunder Nursery was removed?
I have also considered the testimonies of various private witnesses examined by the petitioner i.e. PW1 Sanjay Sharma;PW2 Dilshad Ahmed; PW4 Om Prakash Sharma and PW5 R.K. Manocha. All the said witnesses have not made any allegation in so far as this aspect is concerned. The only evidence on record is the oral testimony of the petitioner itself which does not corroborated from any independent : 49 : source. No persons from the area has been examined to prove that after reading the appeal in the pamphlet in question which is Ex.PW3/6 the Muslim voters of the area did not vote in his favour on account of the same. Even in the testimony of PW3 the petitioner there is nothing to show, which words in the pamphlet were defamatory, derogatory and inflammatory and used by the respondent no.1 or his agent to arose hatred for the petitioner on the ground of community or religion. Further, there is nothing in the testimony of PW3 to show as to which specific part of the pamphlet/ appeal were false or which the respondent no.1 did not believe to be true in relation to the personal character or conduct of the petitioner. The entire pamphlet/ appeal has to be read as a whole and various portions cannot be read in to isolation. Issues which form a subject matter of controversies during election may incorrectly or incidentally introduce consideration of language or religion, but in deciding the question as to whether corrupt practice has been committed, this court is required to exercise care while considering the impugned pamphlet/ appeal in the light of the relevant : 50 : political controversy. The political agenda of Bhartiya Janta Party is known and construction of Ram Mandir is one of the agendas of its list which cannot be denied. Merely putting a poser to the respondent no.1 does not tentamount to corrupt practice, unless the petitioner has able to prove that the poser so put to him by the supporters of the respondent no. 1 was malafide and not in accordance with the policies of the political party which he represented. Even otherwise, the impugned pamphlet was only a counter appeal made by the supporters of the respondent no.1 to the earlier appeal issued by the supporters of the election petitioner which earlier appeal has not been placed on record.
This being so, I hereby hold that the petitioner has failed to prove that the pamphlet/ appeal had been issued by the supporters of the respondent no.1 with a view to influence the religious sentiments of the Muslim voters against the Bhartiya Janta Party so as to affect the prospects of the respondent no.1, resulting into corrupt practices as contemplated under Section 22 of the DMC Act. Issue is decided against the election petitioner and in favour of the : 51 : respondent no.1.
Issue no.4 Whether the respondent no.1 and his mother who is sitting MLA exercised huge influence over the officials who have over looked corrupt practices committed by the respondent no.1 on the date of polling?
Onus of proving this issue was upon the election petitioner. The case of the petitioner is that Smt. Tajdar Babar the mother of respondent no.1 who is an MLA from the area was freely roaming in the polling stations and in the prohibited areas asking the voters to cast their votes in favour of the respondent of no.1. Ld. Counsel appearing on behalf of the petitioner has placed his reliance on the testimony of PW3 wherein he has categorically stated that he had seen Smt. Tajdar Babar inside the polling station where she was present in the restricted area which aspect has also been corroborated from the oral testimony of PW1 Sanjay Sharma. In this regard the respondent no.1 has also examined as many as 13 witnesses who have rebutted what has been stated by the election petitioner and PW1. Ld. Counsel for the respondent no.1 has argued that no specific instance or details : 52 : have been given of the alleged corrupt practices or the so called influence. Further, no name, designation of any official or the time or the place of polling station have been mentioned where such influence was exercised.
I have considered the rival contentions. The allegations made against the mother of the respondent no.1 the sitting MLA of the area are of exercising influence over the officials of election commission and making a plea to the voters to vote for the respondent no.1 by entering in the restricted area on the date of polling which fact according to the petitioner has been over looked by the officials of the respondent no. 6. The oral testimonies of PW1 and PW3 has been rebutted by the oral testimonies of respondent no.1 Farhad Suri who has examined himself as RW1 and by the testimonies of other voters of the area who have also come to depose before this court. R1W2, Amir Hassan has deposed that on the date of polling Smt. Tajdar Babar did not come to his shop which is in the area. According to him, whenever she visits the area, she come to her shop. R1W3 Shahdab Abbasi another resident/ voter of the area has stated that he : 53 : had cast his vote at about 9:00 am in Polling Booth no.87 but he did not find Smt. Tajdar Babar in the area. R1W4, Mohd Shakir has similarly deposed that he cast his vote at about 1:00 pm but he did not find Smt. Tajdar Babar in the area. R1W5, Dilshad Beg has testified have casted his vote at about 9:30 am and according to him, he did not find either the respondent no.1 or Smt. Tajdar Babar in the area. R1W6, Fazal Bin Akhlaq as casted his vote in booth no. 86 at about 1:15 pm. He has stated that there was no political leader inside and around the polling station including the respondent no.1 or Smt. Tajdar Babar. R1W7, Giri Lal is also the resident/ voter of the area who had cast his vote in polling booth no.75 at about 11:30 am and according to him, he did not find either the respondent no.1 or Smt. Tajdar Babar in the area. R1W8, Sohan Vir Singh has deposed having casted his vote in Polling Booth no.76 at about 11:00 am and he did not find the respondent no.1 or Smt. Tajdar Babar in the area. R1W9, Devender Kumar is the resident/ voter of ward no.154 who has stated that he had cast his vote in polling booth no.75 at about 11:15 am and there were no political leaders : 54 : either the respondent no.1 or Smt. Tajdar Babar. R1W10 Baldhari Singh is also the resident/ voter of the area who had cast his vote in polling booth no.76 at about 11:15 am. According to him, there were no political leaders i.e. either the respondent no.1 or Smt. Tajdar Babar.
A plea has been made by the Ld. Counsel for the election petitioner to reject the stereotyped affidavits filed by the various persons on the ground that they are all workers of the party to which the respondent no.1 belongs and are also his known associates and therefore, their oral testimonies are liable to be discarded they being interested witnesses. I have considered the aforesaid aspect. The plea made by the Ld. Counsel is not substantiated from any documentary record. Even otherwise the challenge before this court is to the elections of the respondent, under these circumstances, the witnesses appearing for the litigating parties would be persons who have political inclinations. I find no merit in the plea made by the Ld. Counsel which is rejected.
The evidence before this court is only oral i.e. oath of the petitioner visavis oath of the respondent. It was : 55 : necessary for the election petitioner to have specified the details of the malpractices. The presence of Smt. Tajdar Babar inside the restricted area has not been proved. It is admitted that no complaint in this regard has been made rather the witness R1W12 Rakesh Arora was on MCD election duty as ARO on the date of election, has testified that he did not receive any complaint from anyone regarding any malpractice during his duty period in the Ward no. 154 (Nizamuddin) nor any such complaint brought to his notice. According to PW1 Sanjay Sharma he had made a complaint through his mobile bearing no. 9810095350 to one Mr. Rao. It has been proved by the officer of the Election Commission that there was no person deputed by the name of Mr. Rao. He has deposed in Ward No. 154 he himself having cell phone no. 9868264712; Mr. Indu Shekhar Mishra having his mobile no.981847660; Mr. O.P. Arya having his mobile no. 9312777657; Mr. Arab Singh having mobile no.9910336961 and Mr. Johri Mal having cell phone no.9899465419, deputed and apart from these officers there was no officer in ward no.
154. This aspect has gone unrebutted and the election : 56 : petitioner has not been able to disprove the same. Therefore, I hereby hold that the election petitioner has not been able to prove and substantiate the allegation that Smt. Tajdar Babar on the date of election firstly entered in the restricted area and secondly she had been making an appeal to the voters to vote for the respondent no.1. Not even a single person to whom this appeal was issued, has been brought before the court nor the polling station where she had entered and the time when she made appeal, have been specified in the petition. The allegations regarding malpractices have to be specific and the allegations in the present case have not been proved. Therefore, I decide this issue against the election petitioner and in favour of the respondent no.1. Issue no.5 Whether the election of the respondent no.1 is liable to be set aside on the ground of malpractice and corrupt practice?
Onus of proving this issue was upon the election petitioner. The case of the election petitioner is that the respondent no.1 who was the Mayor of Delhi immediately before the election in question was the Exofficial Chairman : 57 : of the Managing committee of Lala Hardayal Municipal Library and it is evident that the MCD is providing grantin aid to the said library which aspect has been proved vide Ex.RW1/13A. According to the petitioner, the control of the Library in general or otherwise in relation to the execution of the service conditions of its employees vests in the Managing Committee of the library which comprises of the Mayor of Delhi, sitting Municipal Councillors and four subscriber members elected by the members of the library. It is alleged that certain appointments have been made by the respondent no.1 after the declaration of elections and coming into force of Model Code of Conduct and therefore, the appointment of Abuzar Raza Abbasi who was an employee of Hardayal Library as polling agent of the respondent no. 1 was a corrupt practice. The respondent no. 1 has denied the aforesaid allegations. According to the Ld. Counsel for the respondent no.1 the allegations are vague and general and are liable to be discarded. Ld. Counsel has placed his reliance on the cross examination of PW1 wherein he has admitted that he did not mention the name of Abuzar Raza Abbasi in his plaint or : 58 : replication but stated that he has stated the name of Illiyas Khan which name has been mentioned in the plaint and has admitted that there was no polling agent by the name of Babar. Further, the Ld. Counsel for the respondent no.1 has pointed out that the election petitioner in his cross examination admitted that he cannot produce any documentary record to show that Abuzar Raza Abbasi is known as Babar who was one of the election agent of the respondent no.1. Ld. Counsel for the petitioner has submitted that the election of the respondent no.1 is required to be set aside on the ground of corrupt practice as he has appointed the person who is an employee of Municipal Corporation as his election agent.
I have duly considered the submissions made by both the counsels. It is an admitted case of the respondent no.1 that he being the Mayor of Delhi was also the Chairman of the Managing committee of Hardayal Municipal Library.
At the very outset, it is highlighted that in so far as the violation of the Model Code of Conduct is concerned, the same is not a ground for disqualification of elections : 59 : though it may give rise to other legal action. The Model Code of Conduct is a document meant only for guidance of political parties and candidates. Model Code of Conduct was evolved with the consensus of political parties in India with an intent to strengthen the roots of political system in our country. Apparently, it has no statutory backing and many of its provisions are not legally enforceable and it is the political parties who have themselves consented to abide by the principles embodied in the said Code and therefore it binds them to respect and observe it in letter and spirit. Therefore, it is only the public opinion which is the moral sanction for the enforcement of the Model Code of Conduct due to which reason the Election Commission ensures its observance by the political parties and their candidates in discharge of its Constitutional obligations of superintendence, direction and control of elections as provided under Article 324 of the Constitution of India. The Model Code of Conduct covers in detail the important aspects of electioneering like meetings, and processions, speeches and slogans, posters and placards etc. and is only in the nature of an appeal to the political : 60 : parties and their candidates to observe a minimum standard of conduct and behaviour to ensure free and fair elections. The Model Code existing as on date, lays stress on certain minimum standards of good behaviour and conduct of political parties, candidates, their workers and supporters during the election campaigns apart from how a public meeting, procession by the political parties and candidates are required to hold and how the political parties should conduct themselves on the polling day at bolling booths. The Election Commission had in the mid of 1980' s suggested that certain provisions of the Model Code should be given statutory sanction by bringing them on the statute book. The Goswami Committee on Electoral Reforms also went into the matter and enumerated certain items which should be brought within the ambit of the electoral law making a violation thereof an electoral offence but later in the year 1990 the Election Commission changed its mind and was then now of the view that bringing the Code on the statute book would be defeating the measure because any violation of the Code must have a quick reaction and remedial measure which may not be : 61 : possible if the matters are taken to the courts and become a subject of examination in a regular judicial process. The Election Commission also felt that any judicial pronouncement after the election is already over would have a little relevance and it accordingly withdrew its earlier recommendations to the Code as a statutory backing.
Be that as the case may be, Model Code of Conduct may not have a statutory backing, but does that absolve the State Election Commission from performing its constitutional obligation of ensuring free, fair and clean elections. Incidents of voters being subjected to all kind of inducements, evil practices, tempting offers or a candidate misusing and abusing his authority are not rare. The Election Commission abdicate its constitutional obligation when confronted with such a violation. The Model Code of Conduct is a sacrosanct document which all political parties, candidates, workers are required to honour. The Constitutional obligation cast upon the Election Commission is to ensure its compliance in letter and spirit and that its violation does not go unnoticed, unattended or un : 62 : punishable (in case if the alleged violations has a statutory backing).
Though legally the election of the returned candidate cannot be set aside by the court on the ground of violation of the Model Code of Conduct yet the courts of law are not helpless. Suitable directions/ orders can always be passed against the Election Commission to compel them to act and full their constitutional obligation. The significance of the Model Code of Conduct is essentially during the period of elections and therefore it is necessary that on receipt of any complain the Election Commission should immediately intervene and take steps to set at rest the controversies raised by the rival parties.
PW4 Om Prakash Sharma has brought the record pertaining to the appointment of Ashok Kumar and Abzur Raza Abbasi in Hardayal Municipal Library. He has stated that Ashok Kumar was appointed on 13.2.2007 by Sh. Ashok Jain, Honorary Secretary vide Ex.PW3/8 and Abzur Raza Abbasi was offered the letter of appointment on 20.2.2007 which is Ex.PW3/10 which documents have been objected to : 63 : by the counsel for the respondent no.1 on the ground that the said aspects have not been pleaded in the plaint. I have considered the objections raised. It is evident from the pleadings of the petitioner that the election petitioner has specifically raised an issue regarding the violation of the Model Code of Conduct by the respondent no.1 who had appointed certain persons in Hardayal Municipal Library where he was the Chairman which appointment were made at the time of operation of Model Code of Conduct though it is evident that the names of the persons so appointed i.e. Ashok Kumar and Abuzar Raza Abbasi have not been specifically mentioned in the petition. Since the issue with regard to the illegal appointment and violation of Model Code of Conduct by the respondent after the declaration of election have already been pleaded in the petition, I hereby hold that the election petition contains concise statement of material facts to this effect alongwith sufficient particulars, therefore, the appointment letters of Ahok Kumar and Abuzar Raza Abbasi are hereby taken on record. Since the respondent no. 1 has been able to prove that the appointment had been made by the : 64 : member of the Managing Committee of Hardayal Municipal Library of which the respondent no.1 was the exofficio Chairman, therefore, I hold that the respondent no.1 had violated the Model Code of Conduct. However, such a violation is not a ground for setting aside the election under the DMC Act and therefore, the election of the respondent no.1 cannot be set aside on this ground. It shall be open to the petitioner to raise an issue regarding the legality of these appointments before competent forum in accordance with law.
Further, the petitioner has not placed on record any material to show that Abuzar Raza Abbasi was also appointed as an election agent of the respondent no.1. According to him, the person Babar who was the polling agent of the respondent no.1 is Abuzar Raza Abbasi a fact which is not admitted by the respondent no.1. It was necessary for the petitioner to have proved firstly that Abuzar Raza Abbasi and Babar are the same persons; secondly that the employees of Lala Hardayal Library are drawing their salaries out of the Municipal fund and are considered to be : 65 : the employees of Municipal Corporation of Delhi and could not have been appointed as polling agents. This the petitioner has not done. This being so, I hereby decide this issue against the election petitioner and in favour of the respondent no.1.
Relief:
In view of my findings with regard to the various issues I hereby hold that the election petitioner has failed to prove the sufficient grounds for declaring the election of the respondent no. 1 to be void under Section 17 & 10 of the DMC Act.
The petition filed by the election petitioner is hereby dismissed. Parties to bear their own costs. The original record filed by the election commission is directed to be returned as per rules. Copy of this order be sent to the Secretary, State Election Commission. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 24.10.2009 Addl. District Judge: Delhi : 66 : Nisar Ahmed Vs. Farhad Suri Suit No. 46/2007 24.10.2009 Present: Election petitioner in person with Sh. Ravi Verma, advocate.
None for the respondents.
Vide my separate detailed order dictated and announced in the open court, but not yet typed, the petition filed by the election petitioner is hereby dismissed. Parties to bear their own costs. The original record filed by the election commission is directed to be returned as per rules. Copy of the detailed order be sent to the Secretary, State Election Commission. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 24.10.2009 : 67 :