Punjab-Haryana High Court
Sukhbir vs The Presiding Officer on 9 September, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.5416 of 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5416 of 2012
Date of decision: 09.09.2013
Sukhbir
....Petitioner
Versus
The Presiding Officer, Election Tribunal-cum-Additional Civil Judge
(Senior Division), Ferozepur Jhirka and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Sunil Panwar, Advocate, for the petitioner.
Mr. Satish Chaudhary, Advocate, for respondent No.2.
*****
PARAMJEET SINGH, J.
Instant revision petition under Article 227 of the Constitution of India is directed against the order dated 30.7.2012 passed by learned Additional Civil Judge (Senior Division), exercising the powers of Election Tribunal, Ferozepur Jhirka, allowing the election petition filed by respondent No.2 - Dev Karan, defeated candidate relating to election of Sarpanch of village Naiwana, Tehsil Punhana, District Mewat, held on 6.6.2010.
Brief facts of the case are that general election for the post of Sarpanch of Gram Panchayat Naiwana, Tehsil Punhana, was held on 6.6.2010. Petitioner and respondents No.2 to 4 contested the election for Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.5416 of 2012 the post of Sarpanch. Punhana Block was divided into various sectors and gram panchayat Naiwana fell into sector 3 and three booths bearing No.134 to 136 were established for polling of votes in the said village. Respondent No.7 was appointed as returning officer for the panchayat in Punhana block. Respondent No.5 - Munshi Ram was appointed as Presiding Officer to conduct the said election. Respondent No.6 Saddiq Ahmad was appointed as Supervisor for sector 3. Polling was held on 6.6.2010 as per schedule. Presiding Officer obtained signatures on various printed papers before starting the polling. Sukhbir (petitioner herein) remained successful and was declared elected. He won the election securing 691 votes whereas respondent No.2 - Dev Karan secured 581 votes. Chanderpal secured 16 votes and Chhiddi Ram secured 8 votes. Election Tribunal vide impugned order set aside the election of the petitioner and ordered fresh election/repoll.
Respondent No.2 challenged the election on the following grounds: -
"After start of the polling, the votes were being polled by the voters in the said three booths No.134, 135 and 136 and some of the votes were polled and large number of votes ramined unpolled but suddenly respondent No.1 (petitioner herein), his agents and supporters attacked upon the agents of petitioner (respondent No.2 herein) and captured the booths. They damaged electronic voting machine and broke their seal and they have also polled number of bogus, forged, fabricated, illegal votes with ulterior motive to defeat the petitioner. The petitioner and his agents raised heavy objections but they Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.5416 of 2012 failed to stop respondent No.1 and his persons. The polling of votes was stopped and respondent No.4 (respondent No.5 herein) made information about the said incident and the act of the respondent No.1 and his supporters to respondent No.5 (respondent No.6 herein), supervisor for the said Gram Panchayat. The respondent No.5 came to the spot and inspected about the matter on the said three booths and made a report to respondent No.6 (respondent No.7 herein) on the said day to the effect that due to said act, the polling has not completed and the result of the poll at that polling stations cannot be ascertained and requested for fresh poll on the said booths No.134, 135 and 136. FIR No.192 dated 8.6.2010 was also lodged in respect of the same under section 148, 149, 353, 186 of IPC against the said persons. After making said report to respondent No.6, the matter was submitted before respondent No.7 (respondent No.8 herein), who, after considering the facts and circumstances, passed an order for cancellation of the poll conducted on 6.6.2010, and ordered for re-poll at the said three booths/polling stations No.134, 135 and 136 at village Naiwana and appointed the Duty Magistrate, Supervisor and other necessary staff for the said purpose vide letter Endst. No.4271-4322/MB dated 7.6.2010 and sent necessary information to the concerned official. The petitioner and other villagers met respondent No.6 and Sub- Divisional Officer (Civil) Ferozepur Jhirka on 8.6.2010, who refused to conduct re-poll at the aforesaid three booths. There was no reason to refuse re-poll at the said booths after the order passed by respondent No.7. The petitioner met respondent No.7, but he refused to talk with petitioner and other villagers. The petitioner and other villagers of village Naiwana sent an application/representation to the Chief Election Commissioner, Haryana, who sent letter dated Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.5416 of 2012 17.6.2010 to the petitioner and informed that his application has been sent to respondent No.7 with the direction to inquire the matter and submit his report. However, respondent No.7 has not enquired the matter and did not submit his report to the said authority and also did not inform the petitioner about the proceedings of the same. Respondents No.4 to 7 have colluded with respondent No.1 and they have refused the re- poll at the said three booths illegally, arbitrarily, unauthorisedly and against the provisions and rules made under the Act. As such the result of election has been materially affected by the improper reception, and in violation of provisions of Constitution of India and the Act and Rules made under it. After cancellation of poll on 6.6.2010 and submitting the report by respondent No.5, the fresh poll/re- poll was to be conducted and the votes polled on 6.6.2010 were wrong, illegal and void, invalid and against the provisions and rules of law and therefore, the same could not be considered to be valid votes for declaration of the result as the voting machines used at the said polling stations were unlawfully taken out of the custody of the Presiding Officer and the same was intentionally damaged and tampered with to such an extent that the result of poll at that polling stations could not be ascertained. The number of forged, fabricated, illegal and void voted were polled by respondent No.1 with the help of his supporters after capturing the said booths. Besides this, number of valid votes could not be polled in the said election by the qualified voters after said riot and closing of the poll untimely.
After submitting report by respondent No.5 and 6 and passing of said order by respondent No.7, the polling conducted on 6.6.2010 was not legal and valid polling. The result of said election was not declared on the said date and no person Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.5416 of 2012 could be declared as elected on the said basis of the same. However, respondents No.4 to 7 have wrongly, illegally, unauthorisedly and against the provisions of law declared respondent No.1 elected for the post of Sarpanch of Gram Panchayat, Naiwana, on any later date showing the same to be declared on 6.6.2010. The declaration of the said result by respondents No.4 to 7 is completely wrong, illegal, null and void and against the provisions of law and it is the result of collusion with respondent No.1 with ulterior motive to elect him. As such result is liable to be set aside and fresh election is liable to be held."
Upon notice petitioner/respondent No.1 appeared before the Election Tribunal. Petitioner/respondent No.1 filed written statement. Respondent No.2 (respondent No.3 herein) filed separate written statement in line of defence adopted by petitioner/respondent No.1. Respondent No.5 (respondent No.6 herein), respondent No.6 (respondent No.7 herein) and respondent No.7 (respondent No.8 herein) also filed separate written statements.
Election Tribunal, after perusal of the pleadings of the parties, framed following issues: -
"1. Whether the election for the post of Sarpanch Gram Panchayat village Naiwana held on 6.6.2010 is liable to be set aside on the grounds mentioned in petition? OPP
2. Whether the petition is not maintainable? OPR
3. Whether the petitioner has no locus standi and cause of action to file the present petition? OPR
4. Whether the petition is bad for non-joinder and misjoinder of necessary parties? OPR Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.5416 of 2012
5. Whether Civil Court has no jurisdiction to try and decide the present petition? OPR
6. Whether petitioner has concealed true and material facts from the Court? OPR
7. Relief."
In order to substantiate his claim, respondent No.2/election petitioner examined Chet Ram, Clerk in CDPO Office as PW1, Khurshid as PW2 and himself stepped into the witness box as PW3. He tendered affidavit as Ex.PW3/A in his evidence, wherein he reiterated the averments made in the petition.
Besides oral evidence, respondent No.2/election petitioner placed and proved on record the following documentary evidence: -
Ex.-PW1/A: Copy of letter dated 1.6.2010 deputing staff for the polling on 6.6.2010 Ex.-PW1/B: Copy of letter dated 7.6.2010 deputing staff for re-polling Ex.-P1: Copy of newspaper dated 8.6.2010 Ex.-P2: Copy of letter dated 8.6.2010 written by villagers of Newana to Chief Election Commissioner regarding irregularities on booths No.134, 135, 136 Ex.-P3: Receipt of Fax dated 8.6.2010 Ex.-P4: Receipt of Fax dated 8.6.2010 Ex.-P5: Receipt of Fax dated 8.6.2010 Ex.-P6: Receipt of Fax dated 8.6.2010 Ex.-P7: Copy of letter dated 17.6.2010 Ex.P8: Copy of result sheet with detail of the votes secured by the candidates.Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -7-
Civil Revision No.5416 of 2012 Ex.-P9: Copy of details for the post of Sarpanch election dated 6.6.2010.
Ex.-P-10: Copy of letter dated 1.6.2010 deputing staff for the polling on 6.6.2010.
On the other hand, petitioner/respondent No.1 examined himself as RW1, Chet Ram as RW2, Raj Kumar as RW3, Surju as RW4 and Tayyub as RW5.
Petitioner/respondent No.1 placed and proved on record the following documentary evidence: -
Ex-DW2/A: Copy of letter dated 7.6.2010 written by Dist.
Revenue Officer & Returning Officer, Punhana, to Deputy Commissioner & Distt. Election Officer, Mewat, informing him that there is no need for repolling on booths No.134, 135 and 136. Ex-DW1/B: Copy of report under section 173 Cr.P.C. Ex-DW1/C: Copy of letter No.1196 dated 7.6.2010. Election Tribunal, after hearing the parties, decided issue No.1 in favour of respondent No.2/election petitioner and set aside the election and ordered re-election/repoll. Hence this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that there is no evidence on record from which it can be inferred that there were corrupt practices in the election, as defined in sub-section (5) of Section 176 of the Haryana Panchayati Raj Act, 1994 (in short 'the Act'. Learned counsel for the petitioner further contended that corrupt Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.5416 of 2012 practices are quasi-criminal in nature and have to be proved by leading a positive and reliable evidence. Proof of corrupt practice is to be equated with the standard of proof required in criminal trial and the charge is to be proved beyond reasonable doubt. Learned counsel for the petitioner further contended that Election Tribunal has wrongly taken into consideration the FIR No.192 dated 8.6.2010 to conclude that petitioner was indulging into unfair practice. Learned counsel for the petitioner further contended that there is no evidence with regard to booth capturing, damaging or taking away electronic voting machines as well as of bogus polling. Learned counsel for the petitioner further contended that Election Tribunal fell in error by not appreciating the evidence of PW2 Khurshid, a polling agent of respondent No.2/election petitioner and PW3 election petitioner himself. Learned Tribunal has not taken into account the fact that result was declared on the same very day but no one raised any objection. Specially on the same very day, associated elections of panchayat samiti, zila parishad as well as for the post of panches were also conducted. As per Section 161 of the Act, superintendence, direction and control over the conduct of elections for gram panchayat, panchayat samiti and zila parishad vests in the State Election Commissioner. State Election Commissioner under Rule 61 is competent to declare the poll at any polling station to be void and order repoll/fresh election in the event of coming to the conclusion that ballot boxes were unlawfully taken out of the custody of the Presiding Officer or Returning Officer or destroyed, lost, damaged or tampered with. State Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -9- Civil Revision No.5416 of 2012 Election Commissioner is the only competent authority to order repoll. Approach of the Election Tribunal is erroneous. The Tribunal did not apply its judicious mind before setting aside the election; as a result of which manifest injustice and great prejudice has been caused to the petitioner. The impugned order is illegal and perverse.
Learned counsel for respondent No.2 vehemently opposed the contentions raised by learned counsel for the petitioner and contended that there is a categorical evidence in the shape of documents that booths were captured and damage was caused to the electronic voting machines and their seals were broken. There were number of bogus, forged, fabricated and illegal votes polled in favour of the petitioner. Besides this, FIR was also lodged against the petitioner and his supporters on 8.6.2010. Deputy Commissioner/District Election Officer, Mewat had cancelled the election and ordered repoll. The polling of votes at polling station was stopped as a result of which many voters could not cast their votes. Chief Election Commissioner, Haryana had sent letter dated 17.6.2010 whereby respondent No.2 - Dev Karan was informed that case had been sent to District Election Officer for inquiry but he did not receive any information nor Sub Divisional Magistrate carry out repolling.
I have considered the rival contentions raised by learned counsel for the parties.
The main grounds raised by learned counsel for respondent No.2/election petitioner in the election petition as well as during the Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -10- Civil Revision No.5416 of 2012 arguments in this Court are as under: -
"i) That the petitioner herein adopted corrupt practices of damaging electronic voting machine, breaking their seals and by polling number of bogus, forged, fabricated, illegal votes with ulterior motive to defeat respondent No.2/election petitioner.
ii) That District Election Officer cancelled poll conducted on 6.6.2010 on the basis of report submitted by Supervisor and returning officer of election, and ordered for re-poll on said three booths/polling stations No.134, 135 and 136 at village Naiwana and appointed the Duty Magistrate, Supervisor and other necessary staff for the said purpose vide letter Endst.
No.4271-4322/MB dated 7.6.2010 and sent necessary information to the concerned official.
iii) That on 8.6.2010, Returning Officer and Sub-Divisional Officer (Civil) Ferozepur Jhirka, refused to conduct re- poll at the aforesaid three booths, without any reason.
iv) That an FIR No.192 dated 8.6.2010 under Sections 148, 149, 353, 186 of IPC was lodged, regarding corrupt practice."
I would first take up issue with regard to alleged adoption of corrupt practice of damaging electronic voting machines, breaking their seals and polling number of bogus, forged, fabricated and illegal votes.
Perusal of record does not show any evidence that electronic voting machines were tampered with or they were misused. There is no direct evidence led by the election petitioner in this regard. Admittedly, the standard of proof for proving corrupt practices is the same as in criminal trial i.e. proof beyond reasonable doubt. The Tribunal must be Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -11- Civil Revision No.5416 of 2012 satisfied with regard to the fact that impugned election has actually been affected by the alleged corrupt practices. Suspicions or surmises or mere possibilities are not enough. Although, mens rea or criminal intention is not required to be established relating to corrupt practices but in my view it does not mean that the charges of corrupt practices can be held to be established without being proved beyond the possibility of reasonable doubt. The test in weighing the evidence led in such cases is generally similar to the one applied in criminal trials. Here in the present case, only evidence is the report of respondent No.7 on whose recommendation election in question was recommended to be cancelled and repoll was recommended and even the duties were fixed on 7.6.2010 and is corroborated by the fact that FIR in question was registered on 8.6.2010. The Tribunal has taken into consideration the fact that no one on behalf of the official respondents, including the Presiding Officer, Returning Officer or Election Officer had appeared into witness box. Their non-appearance can raise presumption in this regard and the Tribunal has rejected the averments in the written statement on that premises. From the perusal of record it is apparent that although election was recommended to be cancelled but only State Election Commissioner is competent to order repoll/re-election. It is the own case of the election petitioner that he had moved to the Chief Election Commissioner of the State and he had ordered inquiry in this regard. Thereafter, no re- election or fresh election was ordered in booth Nos. 134 to 136. But the Election Tribunal without looking into this aspect and referring to FIR, Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -12- Civil Revision No.5416 of 2012 which is two days after the election, has set aside the election. It is settled proposition of law that mere non-appearance of official witnesses in witness box cannot be taken to mean that case of the election petitioner stands proved. It is settled principle of law that he who alleges must prove his case even if the court proceeds exparte against the other party. Here is the case where petitioner (respondent No.1 before the Tribunal) had appeared in the witness box and led evidence. Registration of FIR after two days becomes meaningless as in the said FIR even names have not been mentioned. In my opinion, election petitioner failed to establish by cogent evidence that present petitioner indulged in corrupt practices as a result of which the election should have been set aside.
Section 176(4) & (5) of the Act reads as under: -
"176. Determination of validity of election enquiry by judge and procedure. -- (1) x x x (2) x x x x x (3) x x x x x (4) (a) If on the holding such inquiry the civil court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5), he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held.
(aa) If on holding such enquiry the Civil Court finds that -
(i) on the date of his election a returned candidate was not qualified to be elected;
(ii) any nomination has been improperly rejected;Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -13-
Civil Revision No.5416 of 2012 or
(iii) the result of the election, in so far as it concerns a returned candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with or violation of the provisions of the Constitution of India or of this Act, or any rules or orders made under this Act, election of such returned candidate shall be set aside and fresh election may be held.
(b) If, in any case to which clause (a) or clause (aa) does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidates who is found to have the largest number of valid votes in his favour, to have been duly elected:
Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitled any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine.
(5) A person shall be deemed to have committed a corrupt practice -Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -14-
Civil Revision No.5416 of 2012
(a) who with a view to induce a voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, or holds out any threat of injury to any person; or
(b) who, with a view to induce any person to stand or not to stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise or individual profit or holds out any threat of injury or any person; or
(c) who hires or procures whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter (other than the person himself, the members of his family or his agent) to and from any polling station."
From the perusal of above Section it is clear that the corrupt practices mentioned in Sub-Rule 5 of Section 176 of the Act have neither been alleged nor cogently proved by the election petitioner. So far as issue with regard to ordering repoll by the Sub Divisional Magistrate but non-conducting of fresh election is concerned, this cannot be taken as corrupt practices rather it is only the State Election Commissioner, which is competent to order inquiry and thereafter order repoll.
Rule 61 of the Haryana Panchayati Raj Rules, 1995 reads as under: -
"61. Fresh Poll in case of destruction etc. of ballot boxes. --
(1) If at any election-
(a) any ballot box used at a polling station is unlawfully Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -15- Civil Revision No.5416 of 2012 taken out of the custody of the Presiding Officer or the Returning Officer (Panchayat), or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent, that the result of the poll at that polling station cannot be ascertained; or
(b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station, the Returning Officer (Panchayat) shall forthwith report the matter to the State Election Commissioner through the District Election Officer (Panchayat).
(2) Thereupon, the State Election Commissioner shall, after taking all material circumstances into account, either-
(a) declare the poll at the polling station to be void and appoint a day, and fix the hours, for taking a fresh poll at that polling station and notify the day so appointed and the hours so fixed in such manner as it may deem fit; or
(b) if satisfied that the result of a fresh poll at that polling station will not, in any way, affect the result of the election or that the error or irregularity in procedure is not material, issue such directions to the Returning Officer (Panchayat) as it may deem proper for the further conduct and completion of the election. (3) The provisions of the Act and of rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll."
In the present case inquiry was allegedly marked and conducted at the instance of the election petitioner but no order has been placed on record that State Election Commissioner after inquiry was satisfied for repolling. In view of this, recommendation becomes Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh -16- Civil Revision No.5416 of 2012 meaningless. The Election Tribunal has not referred to the evidence from which it could be concluded that in the election corrupt practices were used. Respondent No.2/election petitioner having failed to prove the mens rea and the criminal intention i.e. the charge of corrupt practice, has not been able to satisfy the test in weighing the evidence led in the present case from which the corrupt practices used by the petitioner could be proved. Furthermore, respondent No.2/election petitioner has failed to show, even to this Court that in the election, petitioner indulged in corrupt practices, by reliable evidence from which it can be inferred that it has materially affected the result of election on account of the irregularity or illegality committed in the said election. In view of this, findings of Election Tribunal on issue No.1 are set aside.
In view of this, impugned order is set aside and the election petition is dismissed.
Present revision petition is allowed but with no order as to costs.
(Paramjeet Singh) Judge September 09, 2013 R.S. Singh Ravinder 2013.09.30 12:54 I attest to the accuracy and integrity of this document Chandigarh