Punjab-Haryana High Court
Bakhshish Singh vs Jai Singh on 28 May, 1998
Equivalent citations: (1999)121PLR633
JUDGMENT R.S. Mongia, J.
1. This election petition was filed by the defeated candidate Bakhshish Singh challenging the election of respondent Jai Singh, the returned candidate from 12 Nilokheri Assembly Constituency (Haryana). Prayer has been made to see aside the election of respondent Jai Singh being void and the seat of 12 Nilokheri Assembly Constituency be declared vacant. The facts and the grounds for challenging the election of the respondent as averred in the petition may be noticed.
2. The notification for holding Haryana Legislative Assembly Election was issued by the Governor of Haryana under Section 15 of the Representation of People Act, 1951 (hereinafter referred to as the Act) calling upon the various Assembly Constituencies in the State of Haryana to elect members of Haryana Legislative Assembly in accordance with the provisions of the Act. the following Schedule was notified by Shri D.R. Dhingra, the Returning Officer for the 12 Nilokheri Assembly Constituency:-
"(a) 27.3.1996 to 3.4.1996 Period for filing nominations.
(b) 4.4.1996 Date for scrutiny of nominations.
(c) 4.4.1996 to 6.4.1996 Period for withdrawal of nominations.
(d) 27.4.1996 Date for poll.
(e) 8.5.1996 From 8 a.m. Counting to start till
it is completed.
Note:- The result was declared on May 9, 1996.
3. The petitioner was one of the candidates for the election to the 12 Nilokheri Assembly Constituency. He was put up by the Samata Party. He duly submitted his nomination papers and after the same were accepted, he was allotted the symbol of 'Mashal'.
4. Respondent Jai Singh, the returned candidate, submitted two sets of nomination papers before the Returning Officer at Karnal on April 3, 1996 at 12.46 p.m. and 12.47 p.m. He was the official candidate put up by the Indian National Congress. After his nomination papers were accepted, he was allotted the symbol of 'Open Hand'. Further, as per the averments in the petition, respondent took oath before the Returning Officer in the name of God at 12.17 p.m. on April 3, 1996. Shri D.R. Dhingra was the Returning Officer for 12 Nilokheri Assembly Constituency as well as Assistant Returning Officer for Karnal Lok Sabha Constituency. As per the allegations in the petition, the respondent had neither taken oath in the name of God nor had subscribed solemn affirmation as provided in form VII-A of the IIIrd Schedule of the Constitution of India after presentation of his nomination papers. This fact, according to the averments in the petition, is clear from the form of oath in which the words 'ISHWAR Kl SHAPATH LETA HOON/SATYA NISHTHA PURVAK PRATIGYAN KARTA HOON' exist as such and no alternative out of the two has been struck off. The petitioner has drawn conclusion from this that the respondent had neither taken oath by swearing in the name of God nor had subscribed to solemn affirmation as required under Article 173(a) of the Constitution of India. Further it has been alleged in the petition that the respondent had neither taken oath in the name of God nor subscribed to solemn affirmation is supported from the contents of the second part of the oath from which is to be filled by the Returning Officer in which none of the two alternatives "MERE SMAKSH ISHWAR KI SHAPATH LEE/SATYA NISHTHA SE PRATIGYAN KIYA" has been struck off despite clear instructions given at the top of the form. According to the petitioner, in the absence of taking oath or subscribing solemn affirmation, the respondent was not qualified to be chosen to fill a seat in the Haryana Legislative Assembly as he had not complied with the statutory mandate of Article 173(a) of the Constitution of India. It has further been averred that one Chanda Singh, who was also candidate for the 12 Nilokheri Assembly Constituency seat presented his two sets of nomination papers on April 3, 1996 at 11.09 a.m and 11.10 a.m. but after presentation of these nomination papers, he had neither taken oath nor had subscribed solemn affirmation as provided under Article 173(a) of the Constitution of India. Similarly one Rajender Singh son of Jai Singh, resident of Village Anjan Thali who was also candidate for the same seat presented four sets of nomination papers on March 29, 1996. In the form of oath, said Rajender Singh had not shown his intention as to whether he was contesting election for Rajya Sabha/Lok Sabha/Haryana Vidhan Sabha. In order words, it could not be said that when Rajender Singh took oath before the Returning Officer whether he was taking the same for contesting a seat in Rajya Sabha. Lok Sabha or Haryana Vidhan Sabha, in as much as none of the three alternatives had been struck off in the oath form. Similarly, one Amarjit who was also contesting the election from the same Assembly Constituency as a Bahujan Samaj Party candidate also presented two sets of nomination papers at 11.13 a.m. and 11.14 a.m. whereas he had taken oath in the name of God at 11.13 a.m. and therefore, he was not qualified at the time of presentation of nomination papers to be chosen to fill up 12 Nilokheri Assembly Constituency as his nomination papers were not presented by him before taking the oath.
5. The other ground for challenging the election of the respondent is the alleged corrupt practice committed by the respondent as envisaged under Section 123(1)(A)(a) of the Representation of Peoples Act, 1951. The details of the alleged corrupt practice are that on March 29, 1996, at 7.30 p.m. one Kanwal Nain Singh, Sarpanch, son of Shri Mahender Singh of Village Pakhana, Tehsil, Nilokheri, District Karnal, along with Balbir Singh, Sarpanch, resident of village Barthal reached at the residence of Jai Pal son of Shri Dharam Singh, resident of village Manak Majra for purchasing a buffalo about which Kanwal Nain Singh and Balbir Singh had learnt from Sultan Singh, Sarpanch of Village Manak Majra at Nilokheri Gol Market. After about 10 minutes, Jai Singh, respondent, came at 7.40 p.m. to the residence of Jai Pal aforesaid and requested him to be a candidate in the "election for 12 Nilokheri Assembly Constituency" but Jai Pal politely refused saying he did not want to indulge in politics but Jai Singh respondent told him that he should contest the election with a view to help him (Jai Singh, respondent) so that he could use his vehicles in the election for canvassing and further the candidature of Jai Pal may be used for appointing election agent, polling agents and counting agents in the election because as per instructions of Election Commission of India, one candidate could not use many vehicles in his own name. On this, Jai Pal told Jai Singh, respondent that he would not get any benefit out of this botheration. At this Jai Singh, respondent, told him that after the election, Indian National Congress would come to power in Haryana State as well as at the Centre and respondent Jai Singh would be a powerful Minister in the Haryana Government. Jai Singh, respondent, promised to Jai Pal aforesaid that after coming into power, he would get him allotted a licence for petrol pump at Nilokheri. On this promise, Jai Pal agreed to be a candidate in the election for 12 Nilokheri Assembly Constituency and consequently submitted his nomination papers on April 3, 1996. All these talks were held in the presence of Kanwal Nain Singh, Sarpanch, and Balbir Singh mentioned above.
6. It has further been alleged in the petition that on March 30, 1996 at 8 a.m. one Balkar Singh son of Tarlok Singh, resident of Gulab Kheri, along with one Jai Singh, Lambardar of Village Manak Majra, reached at the residence of one Shri Randhir Singh son of Shiv Charan, resident of Arja Heri for engaging him for harvesting wheat crop. After half an hour, respondent Jai Singh came there and asked Shri Randhir Singh above said for being a candidate in the election for 12 Nilokheri Assembly Constituency. Randhir Singh told Jai Singh, respondent, that he was going with Balkar Singh as he had engaged him for harvesting of wheat crop at the rate of Rs. 100/- per date. On this Jai Singh, respondent told him that he need not worry about wages till election and promised that he would pay him Rs. 5,000/- for this period and further promised that if he contested the election from 12 Nilokheri Assembly Constituency, he would get him allotted dealership of Kerosene Oil at Nilokheri because Indian National Congress would come to power after the election in Haryana State and at the centre as well and he would be a powerful Minister in the Haryana Government. All this talk took place in the presence of Balkar Singh and Jai Singh, Lambardar aforesaid. On this promise, Randhir Singh told Balkar Singh and Jai Singh, Lambardar that he would not be available to them for harvesting the crops of Balkar Singh since Jai Singh, respondent, had promised him to pay Rs. 5,000/- for this period and had also promised to get him dealership of kerosene oil at Nilokheri after the election. Consequently, said Randhir Singh presented his nomination paper on April 3, 1996, and was a candidate for the 12 Nilokheri Assembly Constituency. In this manner, Jai Singh, respondent, having put up Jai Pal and Randhir Singh as can- didates for the 12 Nilokheri Assembly Constituency has committed corrupt practice as envisaged under Section 123(1)(A)(a) of the Act.
7. It may be observed here that it had been alleged in the petition that respondent Jai Singh had committed corrupt practice under Section 123(7) of the Act as he had procured the assistance from gazetted officer Shri P.D. Verma for the furtherance of the prospects of his election. It is not necessary to mention any details of the same as no evidence was led by the petitioner on this aspect nor was this pressed at the time of arguments.
8. The respondent filed written-statement and took preliminary objection that the petition does not disclose any cause of action. No material facts as required under Section 83 of the Act had been detailed in the petition. The petition deserved to be dismissed on that ground alone. Further it was alleged that paras No. 11 to 14 of the petition had not been properly verified in accordance with the provisions of the Representation of Peoples Act, Rules and Orders of the High Court. On this ground, paras No. 11 to 14 of the petition deserved to be struck off. No material facts constituting a cause of action had been disclosed in paras No. 4, 5, 6, 7, 11 to 14 of the petition. These paragraphs are unnecessary, scandalous, frivolous, vexatious and would tend to prejudice the fair trial of the petition and otherwise also constitute an abuse of the process of the Court. These paras were liable to be struck off. It was further alleged that the petitioner had not raised any objection at the time of scrutiny of nomination papers which were found in order by the Returning Officer.
9. It was averred in para 4 of the written-statement that respondent Jai Singh had filed two sets of nomination paper on April 3, 1996 at 12.16 p.m. and 12.17 p.m. respectively as a candidate of the Indian National Congress. It was further mentioned that either the petitioner or some interested persons in connivance with the election staff of the Election Department, Karnal, had changed the time of. presentation of the nomination papers of the answering respondent from 12.16 p.m. to 12.46 p.m. The digit of 1 in minutes was converted into 4 with a different pen and in different hand which was visible to the naked eye. Similarly, the time of presentation of the second nomination paper had been changed from 12.17 p.m. to 12.47 p.m. in the same manner as aforesaid. This change of digit had been dishonestly made in the nomination papers of the returned candidate in order to challenge his election by an election petition by tampering the record lying with the Election Kanungo or some other official of the Election Department after the declaration of the result. It has further been mentioned that respondent Jai Singh had contested successfully three successive elections from this very constituency. On two of the occasions, he had been returned as an independent candidate and on the third occasion he had been elected as a candidate of the Indian National Congress. In para 5 of the written-statement, it has been submitted that the respondent Jai Singh had taken oath in the name of God after filing his two sets of nomination paper on April 3, 1996 before Shri D.R. Dhingra who was the Returning Officer of 12 Nilokheri Assembly Constituency. The receipt of the nomination papers had been entered at Sr. No. 43 and 44 in the nomination receipt register maintained by the election office at Karnal. The allegation of the petitioner that respondent Jai Singh had neither taken oath in the name of God nor had subscribed solemn affirmation as provided in Form Vll-A of the Illrd Schedule of the Constitution of India after presentation of the nomination papers was denied. It was averred that as a matter of fact, answering respondent had taken oath after presentation of both sets of his nomination papers. The oath was taken at 12.17 p.m. It was further averred that it was wrong and denied that no alternative out of the two had been struck off. Alternative out of the two had been struck of by the Returning Officer in the Certificate for receipt of form of oath which was issued to the answering respondent after taking oath. Respondent had taken oath" by swearing in the name of God as required by Article 173(a) of the Constitution of India after submitting his nomination papers. It was further averred that the returned candidate had also filed nomination papers on March 29, 1996 at 1.17 p.m. and took oath in the name of God at 1.22 p.m. before the Returning Officer but either the petitioner or some interested person in order to challenge the election of the returned candidate after he had been declared elected changed the time of 1.17 p.m. to 4.17 p.m. in the nomination paper to get the election set aside. An entry had also been made in the nomination form receipt register on March 29, 1996 having received nomination paper of the respondent at 1.17 p.m. The allegations regarding the wrong acceptance of nomination paper of Chanda Singh, Rajender Singh and Amarjeet Singh were also denied.
10. So far as the allegations of corrupt practice made in paras 11 to 14 of the petition are concerned, it was averred in the written-statement that the same were vague and general and the mandatory provisions regarding precise statement of material facts and full particulars of corrupt practice were lacking. It was denied that the returned candidate ever visited the residence of Jai Pal at 7.40 p.m. on March 29, 1996, as alleged by the petitioner and that he ever requested Jai Pal to contest the election with a view to help the respondent. He had never promised to get him a licence for petrol pump at Nilokheri. All the allegations were false and fabricated. The names of persons allegedly shown to be present at the time the alleged talk between the respondent and Jai Pal took place had been purposely given as they are the henchmen of the petitioner. Similarly, the allegations of going to Shri Randhir Singh on March 30. 1996 at 8.00 a.m. have been denied. It has further been denied that the respondent ever asked Randhir Singh to be a candidate in the election for 12 Nilokheri Assembly Constituency. The names of the persons who are said to be present at the time of the alleged talk between the respondent and Randhir Singh are the henchmen of the petitioner and their names have been introduced just to support the petitioner. The answering respondent never promised that he would give Rs. 5000/- to Randhir Singh and would get him allotted a dealership of kerosene oil at Nilokheri. The respondent had been declared elected by a margin of nearly 10000 votes. It was prayed that the election petition be dismissed with costs.
11. Replication was filed by the petitioner reiterating the stand taken in the petitioner.
12. On the pleadings of the parties, the following issues were framed:
1. Whether the averments made in paragraphs 4 to 7 and 11 to 14 of the Election Petition are vague, irrelevant and lack material facts and particulars so as to constitute sufficient cause of action? If so, what is its effect? OPR.
2. Whether the petitioner has failed to comply with the provisions of Section 81(3) of the Representation of People Act, 1951 and if so, whether the election petition is liable to be dismissed? OPR.
3. Whether the allegations contained in paragraph 11 to 15 of the Election Petition are scandalous and are not properly verified and, therefore, are liable to be struck off under Order 6, Rule 16 of the Code of Civil Procedure? OPR.
4. Whether the petitioner himself or any other person in connivance with the Election Officials has tampered with the nomination papers filed by the respondent? OPR.
5. Whether the respondent had taken oath after presentation of the nomination papers before the Returning Officer/any other authorised authority as required under Article 173(a) of the Constitution of India? If so, what is its effect? OPP.
6. Whether Chanda Singh, Ranjinder Singh and Amarjit Singh, candidates in the impugned election had not taken oath after presentation of the nomination papers before the Returning Officer/authorised authority as required under Article 173(a) of the Constitution of India? If so, what is its effect? OPP.
7. Whether Rajinder Singh, a candidate in the impugned election, had not filed proper nomination paper and had not shown his intention to contest the assembly election from 12 Nilokheri Assembly Constituency? If so, what is its effect? OPP.
8. Whether respondent has committed any corrupt practice as envisaged under Section 123(1)(A)(a) of the Representation of People Act, 1951 as per the allegations made in the Election Petition? OPP.
9. Whether respondent has committed any corrupt practice as envisaged under Section 123(7) of the Representation of People Act, 1951 as per the allegations made in the Election Petition? OPP.
10. Relief.
13. Issues No. 1 to 3.
No arguments were addressed on these issues by the learned counsel for the respondent. Otherwise also after going through the pleadings, I am of the view that there is no substance in favour of the respondent. Consequently, these issues are decided against the respondent and in favour of the petitioner.
14. Issue No. 4:
Learned Counsel for the petitioner submitted that this issue need not be gone into and for the purpose of this case, it may be taken that the nomination forms Ex.RW6/4 and Ex.RW6/5 were presented by the respondent to the Returning Officer on March 29, 1996, at 1.17 p.m. and nomination Form (Ex.RW6/PA and Ex.RW6/PB) were presented by the respondent at 12.16 p.m. and 12.17 p.m. or April 3, 1996, inasmuch as the case of the petitioner is that the respondent had not taken oath before the Returning Officer in accordance with law and on March 29, 1996 on April 3, 1996, and, therefore, the respondent was not qualified to contest the election. However, while dealing with issue No. 5. It is being held that the nomination forms on March 29, 1996, were presented by the respondent at 1.17 p.m. while on April 3, 1996 at 12.16 p.m. and 12.17 p.m. This issue is accordingly decided against the petitioner.
15. Issue No. 5:
Before dealing with this issue. Some provisions of the Act and the Constitution of India as well as some provisions in the Hand Book for the Returning Officers issued by the Election Commission of India may be noticed. Article 173 of the Constitution of India is in the following terms:
"173. Qualification for membership of the State Legislature.- A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."
The form of oath or affirmation to be made by a candidate for election to the Legislature of a State, which is provided under third Schedule of the Constitution of India is as under:-
VII-A Form of oath or affirmation to be made by a candidate for election to the Legislature of a State:-
"I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."
Section 100 of the Representation of People Act, 1951 (relevant portion) is in the following terms:
"100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963(20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent:"
There is a Form which has been provided in the Hand Book for the Returning Officers issued by the Election Commission of India. It also contains the form of endorsement to be issued by the authorised person' before whom the oath is taken as also the certificate of receipt of form of oath. The same is as under:
384ANNEXURE E (PARA 21.2 - CHAPTER V) FORM OF OATH OR AFFIRMATION (Article 84(1)* of the Constitution of India 173(a) I........having been nominated as a candidate to fill a seat in the Council of States/House of the People/.....Legislative Assembly/ ..... Legislative Council do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.
(Signature and name in block letters of the candidate) *Score out which is not applicable) Sworn in the name of God/Solemnly affirmed by Shri/Shrimati............at ............(Place) at................(hour) this.................day of.........198.......before me.
(Signature of Authorised Person) Name, Designation and Seal (Certificate for receipt of Form of Oath) (To be handed over to the candidate by the authorised person) Certified that........... (name) a candidate for election to the*........ has made and subscribed the oath/affirmation as required by the Constitution of India, before me at my office at.....(hour) on......(date).
Date.
(Signature of Authorised Person) Name, Designation and Seal *Here insert one of the following alternatives as may be appropriate.
(1) House of the People from the ....................Constituency.
(2) Legislative Assembly from the....................Constituency.
(3) Council of States by the elected members of the Legislative Assembly of........(State).
(4) Legislative Council by the members of the Legislative Assembly.
(5) Legislative Council from the........Constituency."
Paragraphs 23.2, 23.3, 23.4 and 23.5 of the Hand Book for Returning Officers issued by the Election Commission of India are in the following terms:-
"23.2. The onus of proving that a candidate had made or subscribed the oath or affirmation before some other competent authority rests on the candidate himself. It is sufficient if the candidate or his representative satisfies you at the time of scrutiny that the candidate has made and subscribed the oath or affirmation before an authorised officer for that election.
23.3 Section 36(2)(a) of the Representation of the People Act, 1951 requires that on the date for the scrutiny of nominations the nominated candidate should have the requisite qualification including the qualification of having made and subscribed the oath or affirmation. If the oath or affirmation is not made and subscribed before the date appointed for the scrutiny of nomination papers the candidate will be held by you as not qualified to stand for the election. It is not necessary that every nomination paper of a candidate must be accompanied by the form of oath signed by the candidate.
23.4 The oath or affirmation has first to be made and then signed by the candidate before the authorised person. It should be borne in mind that mere signing on the paper on which the form of oath is written is not sufficient. The candidate must make the oath before the authorised person. The latter should ask the candidate to read aloud the oath and then to sign and give the date on the paper on which it is written. If the candidate is illiterate or unable to read the form the authorised person should read out the oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form. The authorised person should endorse on the form that the oath of affirmation has been made and subscribed by the candidate on that day and hour.
23.5 The authorised person will forthwith give a certificate to the candidate that he has made and subscribed the oath before him on that day at a particular hour. The certificate will be given to the candidate without his applying for it. This will avoid all controversy later on as to whether the candidate had taken the oath or not.
16. Reliance on behalf of the petitioner in support of this issue is on the oath Form of the respondent Jai Singh and the endorsement issued by the Returning Officer regarding the administration of oath which was allegedly taken by the respondent on April 3, 1996 and which was got produced by the respondent while cross-examining the Returning Officer Shri D.R. Dhingra (RW6). The document is Ex. RW6/PD. In the earlier part of the judgment, it has been noticed that respondent Jai Singh had also submitted nomination form on March 29, 1996, on which date he also allegedly took oath after submission of the nomination form. The oath form along with the endorsement was got produced by the respondent as Ex. RW6/3. Both Ex. RW6/PD and Ex. RW6/3 which are oath forms of the respondent dated April 3, 1996, and March 29, 1996 and endorsement thereon are in vernacular and for ready reference reproduced below:
Ex. RW6/PD SHAPATH YA PRATIGYAN KA PRAROOP (BHARAT KE SAVIDHAN KA ANUCHHED 84(a)/173(a) MEIN JAI SINGH JO RAJYA SABHA/LOK SABHA HARYANA VIDHAN SABHA MEIN EK STHAN BHARNE KE LIYE UMMIDWAR KE ROOP MEIN NAAM NIRDESHIT HUAN HUN. ISHWAR KI SHAPATH LETA HUN/SATYA NISHTHAPURVAK PRATIGYAN KARTA HUN KI MEIN VIDHI DWARA YATHA STHAPIT BHARAT KE SANVIDHAN KE PRATI SACHI SHRADHA AUR NISTTHA RAKHUGAN AUR MEIN BHARAT KI SAMPRABHUSTTA OR AKHANDTA KO ASKHUNYA RAKHUGAN.
Sd/- Jai Singh UMMIDWAR KE HASTAKSHAR AUR SPASHT AKSHRON MEIN USKA NAAM JO LAGOO NA HO USKE KAA DEIN SHRI/SHRIMATI JAI SINGH NE AAJ DINANK 3 MAAS 4 VARSH 1996 KO A.D.C. Office, Karnal (STHAN) PAR 12.17 P.M./BAJE MERE SMAKSH ISHWAR KI SHAPATH LI/SATYANISHTHA SE PRATIGYAN KIYA.
Sd/- Returning Officer.
KARNAL."Ex. RW6/3
SHAPATH YA PRAIGYAN KA PRAROOP BHARAT KE SANVIDHAN KA ANUCHHED 84(a)/173(a) MEIN JAI SINGH JO RAJYA SABHA/LOK SADIIA HARYANA VIDHAN SABHA MEIN EK STHAN BHARNE KE LIYE UMMIDWAR KE ROOP MEIN NAAM NIRDESHIT HUAN HUN, ISHWAR KI SHAPAT LETA HUN/SATYA NISHTHAPURVAK PRATIGYAN KARTA HUN KI MEIN VIDHI DWARA YATHA STHAPTI BAHRAT KE SANVIDHAN KE PRATI SACHI SHRADHA AUR NISHTHA RAGHUGAN AUR MEIN BHARAT KI SAMPRABHUSTTA AUR AKHANDTA KO AKSHUNAYA RAKHUGAN.
Sd/- Jai Singh.
UMMIDWAR KE HASTAKHAR AUR SPASHT AKSHRON MEIN USKA NAAM JO LAGOO NA HO USKE KAAT DEIN SHRI/SHRIMATI JAI SINGH NE AAJ DINANK 29 MAAS 3 VARSH 1996 KO ATIKIKI UPAYUKT KARNAL (STHAN) PAR 1.22 P.M. BAJE MERE SMAKSH ISHWAR KI SHAPATH LI/SATYANISHTHA SE PRATIGYAN KIYA.
Sd/- Returning Officer Karnal."
17. As observed while dealing with issue No. 5, the learned counsel for the petitioner did not press the argument that the nomination form dated March 29, 1996, was submitted at 4.17 p.m. Learned Counsel for the petitioner, submitted that it may be taken that the nomination forms on March 29, 1996, were submitted at 1.17 p.m. Shri D.R. Dhingra (RW6) who was the Returning Officer stated that as and when nomination forms were received the same were entered in a register known as nomination register. The entries therein were made by the Election Kanungo at his instance. A serial number was also mentioned in the register regarding the receipt of the nomination paper and the same serial number was also indicated on the nomination paper. The last column of the nomination register pertained to the time at which the nomination papers were received. After entertaining the nomination paper, oath was administered to the candidate. Two sets of nomination papers of Jai Singh were entered at Sr. No. 2 and 3 in the nomination register on March 29, 1996 and were shown to have been received at 1.17 p.m. The entries had been signed by him which had been exhibited as Ex.RW6/1 and RW6/2. it has further been stated that after the nomination forms were received from Jai Singh, respondent, he had administered the oath to him and he (RW6) had signed the oath form. The oath form Ex.RW6/3 shows the oath having been administered at 1.22 p.m. It has further been mentioned that the portion where the time of administering the oath has been mentioned was entered by him. In the upper portion of EX.RW6/3 the words SATYANISHTHPURVAK PRATIGYAN KARTA HUN had been deleted by the Kanungo. However, in the lower portion of the form where he had to sign the alternative regarding the administration of oath/solemn affirmation had not been deleted. He further stated that he had administrated the oath to Shri Jai Singh in the name of God, it has further been stated that there is a obvious tampering with the time mentioned on both the nomination forms submitted by Jai Singh on March 29, 1996 (Ex.RW6/4 and Ex.RW6/5). The digit of hour "1" had been changed to 4 in both the nomination forms. It has still further been stated that on April 3, 1996, Shri Jai Singh, respondent, had submitted two more nomination forms (Ex.RW6/PA and Ex.RW6/PB) which were entered at Sr. No. 43 and 44 in the nomination form receipt register. These were received at 12.16p.m. and 12.17p.m. The oath form attached to these nomination forms Ex.RW6/PD shows that the oath was administered at 12.17p.m. He has stated about tampering of digit 1 of figures 16 and 17 to show as if these forms had been received at 12.46 p.m. and 12.47 p.m. The tampering is apparent to the naked eye. The oath had been administered to Shri Jai Singh respondent in the name of God. However, inadvertently he had not deleted in the ' oath form the words 'SATYANISHTHAPURVAK PRATIGYAN KARTA HUN". He went on to state that in fact all candidates who had submitted their nomination papers for the 12 Nilokheri Assembly Constituency had been administered the oath in the name of God in accordance with law and nobody had been administered the oath in the alternative form, i.e., "SATYANISHTHAPURVAK PRATIGYAN KARTA HUN". Nobody had raised any objection regarding any nomination paper at the time of scrutiny. All the nomination forms of respondent Jai Singh, two submitted on March 29, 1996, and the other submitted on April 3, 1996, were duly accepted. The oath is administered only once on the day the nomination forms are submitted even though more than one nomination form may be submitted. In cross-examination by counsel for the petitioner, it was stated that every Returning Officer, in each constituency was maintaining a nomination form receipt register. The first part of the oath form is normally filled in by the candidate himself or by somebody else at his behest. The second part of the form is either filled by the Returning Officer himself or by Election Kanungo or by any other person assisting him at the instance of the Returning Officer. In all the oath forms in the second portion, the time of administration of oath was filled by him. He denied the suggestion given by the counsel for the petitioner that in fact no oath was administered to Jai Singh, respondent on April 3, 1996, as none of the alternative of administering the oath had been deleted in any of the portion of the oath form (Ex. RW6/PD). The nomination forms receipt register had been maintained on the instructions of the Election Commission of India.
18. Learned Counsel for the petitioner argued that it was the requirement of the Constitution as envisaged by Article 173(a) of the Constitution of India (supra) that for a person to be qualified for being a member of the State Legislature, he has to make and subscribe before the authorised person in that behalf by Election Commission an oath or affirmation according to the form set out for the purpose in the third Schedule. According to the form Vll-A in the third Schedule, the person concerned has to swear in the name of God or make solemn affirmation. In the oath form which is given along with the nomination paper, it has clearly been mentioned that one of the alternatives regarding administration of oath in the name of God/solemn affirmation has to be deleted. Since in the oath form submitted by the petitioner on April 3, 1996 (Ex.RW6/PD), none of the alternatives have been deleted and in the oath form submitted on March 29, 1996 (Ex.RW6/3), the Returning Officer had not deleted any of the alternatives in the endorsement portion (second portion), it could not be said that the respondent had taken oath and, therefore, being not qualified under Article 173(a) of the Constitution of India could not contest the election and his election is liable to be set aside under Section 100(1)(a) of the Representation of People Act. In support of this contention, learned Counsel cited Aad Lal v. Kanshi Ram, A.I.R. 1980 S.C. 1358. It was further submitted that the Election Commission had provided a certificate for receipt of form of oath to be given to the candidate concerned to substantiate that the candidate had been administered oath to avoid any controversy later on as to whether the candidate had taken the oath or not. The counsel referred to paragraphs 23.4 and 23.5 of the Hand Book for the Returning Officers issued by the Election Commission of India which have already been reproduced above. It was argued that in the written-statement, respondent Jai Singh had specifically mentioned that the Returning Officer had issued him the receipt in which the words "SATYANISHTHAPURVAK PRATIGYAN KARTA HUN" had been deleted but the same had not been produced. The best evidence having been kept back the inference should be drawn against the respondent that if the document had been produced that would have gone against him. In support of this submission, learned Counsel for the petitioner cited Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., A.I.R. 1968 Supreme Court 1413. Learned Counsel for the petitioner further argued that if the document is ambiguous or defective, evidence cannot be led to show the meaning of the document. According to the counsel, if any of the alternatives in the oath form had not been deleted, the document is vague and no oral evidence could be led to explain the document that the oath in fact had been taken in the name of God and not solemn affirmation. He referred to Section 93 of the Indian Evidence Act and Illustration a below it which is in the following terms:-
"93. Exclusion of evidence to explain or amend ambiguous document.- When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
Illustrations
(a) A agrees, in writing, to sell a horse to B for "Rs. 1,000/- or Rs. 1,500" Evidence cannot be given to show which price was to be given.
(b)......
19. In support of this contention learned counsel relied upon Arbn. Seth Kerorimal Adwani v. Union of India, A.I.R. 1959 Calcutta 430 and Delhi and Finance Housing and Construction Ltd. v. Brij Mohan and Anr., A.I.R. 1956 Punjab 205.
20. On the other hand learned counsel for the respondent submitted that the petitioner had not challenged the respondents taking oath on March 29, 1996, before the Returning Officer and there was no specific challenge to the oath form Ex.RW6/3. A specific plea was taken in the written-statement in para 9 by the respondent having taken oath in the name of God on March 29, 1996 and there is no challenge in the replication. The petitioner was in the knowledge of the oath form Ex.RW6/3 inasmuch as he had obtained a certified copy of the same as admitted by the petitioner in the cross-examination. The respondent's counsel specifically referred to Ex.RW6/3 which has already been reproduced above and argued that in the first part of the oath form which is to he filled in by the candidate and after taking oath, he is to sign it, one of the alternatives had been deleted. If in the second part, it is not deleted, which is to be filled in by the Returning Officer, the person concerned, i.e., respondent in this case cannot suffer. The endorsement to be made by the Returning Officer is not the part of the oath form VII-A provided under the Constitution of India. Otherwise also, moment the Returning Officer had signed the endorsement i.e., 2nd part of the oath form, it would mean that he was endorsing what had been mentioned in the first part of the oath form, i.e., that the respondent had taken oath in the name of God. It was further submitted that in the oath form provided under the Constitution, there was no mandatory requirement of deleting any of the alternatives and the one provided in the Hand Book of Instructions issued by the Election Commission of India the scoring off of one of the alternatives is only required in the first part of the form as there is a star mark for the first part of the form only and not so far as the endorsement is concerned. There is no ambiguity in the document. The Returning Officer (RW6) while stating that he had administered the oath in the name of God was not explaining away the document but was stating a fact. The non-production in the evidence of the certificate for receipt issued to the respondent cannot in any way prejudice his case inasmuch as the petitioner has to stand on his own legs by producing independent evidence. Moreover, nothing could prevent the respondent from producing that receipt after deleting one of the alternatives. At the most, it could be taken that in the receipt none of the alternatives was deleted but that will not further the case of the petitioner inasmuch as in the first part of the oath form Ex. RW6/3 dated March 29, 1996, the alternative had been deleted. Paras 23.4 and 23.5 of the Hand Book for the Returning Officers only provides that the receipt should be issued and even if a receipt is issued, where none of the alternative is deleted, it cannot be said that no oath had been administered as the receipt is only issued after administering the oath. The receipt form which has already been reproduced above does not require deletion of any of the alternatives. Learned Counsel also submitted that oath once taken is sufficient to make the candidate qualified and if the oath taken on March 29, 1996, before the Returning Officer is in accordance with law, the oath form which was submitted on April 3, 1996, and the administration of oath on that day need not be dealt with at all. Learned Single Judge of this Court in Election Petition No. 6 of 1996 (Rao Om Parkash Engineer v. Shri Narender Singh) rendered on July 11, 1997, wherein it was observed as under:-
"The argument of the learned counsel for the petitioner is that the oath form as well as the receipt do not indicate whether the respondent took the oath in the name of God or on solemn affirmation because none of the two alternatives have been scored off in both these documents though else where in this very form the words which were not applicable had been scored off. For instance, the words Rajya Sabha and Lok Sabha were scored off but when it came to the oath part neither of the two alternatives, i.e., in the name of God or on solemn affirmation have been scored off. The learned counsel argued that in fact the respondent did not take the oath. There is no merit in this submission of the learned counsel and it is being noticed only to be rejected. Merely because one of the two alternatives was not scored off does not mean that the oath had not been taken. The Returning Officer while appearing as RW-4 has categorically stated that the respondent look the oath before him at the time when he submitted his nomination papers. There is no reason to disbelieve the oral and documentary evidence led by the respondent in support of his case. It must, therefore, he held that the respondent took the requisite oath on 3.4.1996 at 11.35 a.m. and was qualified to be chosen to fill a seat in the Haryana State Legislature. It thus follows that the nomination papers of the respondent were properly accepted. In this view of the matter, issue No. 4 is decided against the petitioner and in favour of the respondent."
21. According to the learned counsel for the respondent, the first part of the oath form Ex. RW6/3 dated March 29, 1996 coupled with the statement of the Returning Officer and of the respondent that he had taken the oath in the name of God, no fault can be found with the election of the respondent as he was duly qualified to contest the election.
22. Learned Counsel for the respondent submitted that so far as the authority - A.I.R. 1980 S.C. 1358 is concerned. In that case in the first part of the oath form, none of the alternatives had been deleted, yet on the basis of the statement of the Returning Officer that he had administered the oath in the name of God and further the certificate for receipt of form of oath where one of the alternatives had been deleted, the Supreme Court held that proper oath had been administered despite the fact it had not been deleted in the main part of the oath form. In the present case in the main part of the oath form Ex.RW6/3 one of the alternatives has been deleted. This coupled with the statement of the Returning Officer that the oath had been administered in the name of God leaves no doubt that the oath had been administered in the name of God despite the fact that in the second part, the Returning Officer due to inadvertence had failed to delete one of the alternative. According to the counsel, this authority is of no help to the petitioner and rather helps the respondent.
23. After hearing learned counsel for the parties on this issue, I am of the view that the submissions made on behalf of the petitioner are not tenable. On March 29, 1996 and April 3, 1996, two sets of nomination forms along with the oath form were submitted by the respondent Jai Singh before the Returning Officer. Both the times, as per the respondent, he had taken oath in the name of God before the Returning Officer after the submission of the nomination papers. Even if it is held that the oath taken by the respondent on one of the occasions either on March 29, 1996 or April 3, 1996, was in accordance with law, the validity of the oath taken on the other day need not be gone into. The oath taken by the respondent on March 29, 1996, has not been seriously challenged in the election petition or during the course of evidence and arguments. The argument of the petitioner regarding the validity of the oath on March 29, 1996, has already been noticed above. In the first part of the oath form submitted on March 29, 1996 (Ex. RW6/3), one of the alternatives, i.e. "SATYANISHTHA PURVAK PRATIGYAN KARTA HUN" has been deleted, which is signed by the respondent. This is the only part which is to be filled in by the candidate and is to be signed after he takes oath. This fact coupled with the statement of the Returning Officer and respondent himself are sufficient to hold that the respondent had taken oath in the name of God. Simply because one of the alternatives had not been deleted inadvertently (as per the statement of the Returning Officer), it cannot be concluded that no oath had been administered to the respondent by the Returning Officer. It was the job of the Returning Officer to delete one of the alternatives and if he has not done so, respondent cannot suffer. Simply because the respondent has not produced the certificate for receipt of form of oath cannot go against the respondent because the petitioner has to stand on his own legs. Even if the inference is to be taken against the respondent that none of the alternatives was deleted in the certificate for receipt of oath form issued by the Returning Officer, no conclusion can be drawn that the oath had not been administered to the respondent in the name of God. Otherwise, also I am of the view that if the respondent had produced the same after he himself had deleted one of the alternatives by drawing a line, it would have been very difficult for this Court to hold one way or the other as to who had deleted one of the alternatives. The petitioner also did not ask the respondent, when he was in the witness box, that receipt may be produced.
24. The matter can be looked from another angle also. The endorsement as well as the receipt is not prescribed by the Constitution. Even in the proforma prescribed by the Election Commission in the Hand Book issued by it, the requirement of deletion of one of the alternatives of taking oath in the name of God/solemn affirmation is only in the first part of the oath from as the star mark would show but same is not the requirement either in the second part of the oath form or in the certificate for receipt of form of oath (the entire oath form including the form of endorsement by the Returning Officer and the certificate of receipt of form of oath has already been reproduced above). In the present case, as observed above, the respondent had deleted one of the alternatives in the first part of the oath form which is as per the requirement of the proforma prescribed by the Election Commission. I am in respectful agreement with the view expressed by a learned Judge of this Court in Election Petition No. 6 of 1996 (relevant extract already reproduced above). The authority cited by the learned Counsel for the petitioner (A.I.R. 1980 Supreme Court 1358) is of no help to the petitioner. In that case, none of the alternatives had been deleted by the returned candidate in the first part of the oath form. It was on the basis of the statement of the Returning Officer and on the basis of the certificate for receipt of form of oath that the apex Court came to the conclusion that the oath had been administered in accordance with law. As observed above, in the present case, in the main portion of the oath form, one of the alternatives has been deleted which is signed by the candidate and if the same has not been deleted in the endorsement which is not the requirement even as per the proforma prescribed by the Election Commission of India, it cannot be said that the oath had not been taken as per law. The reference by the petitioner's counsel to Section 93 of the Evidence Act is misplaced. It is not the document the ambiguity of which was being explained away by the Returning Officer. He was stating as a matter of fact that the oath had been administered in the name of God and in fact he had administered the oath to each candidate in the name of God. In fact the oath forms of some of the other candidates like Rajender Singh (Ex.RW6/10). Chanda Singh (Ex.RW6/13), and Amarjit (Ex.RW6/15) show that in the endorsement part of the oath form the Returning Officer had not deleted any of the alternatives. So it is quite obvious that the Returning Officer had not deleted any of the alternatives in the endorsement part of the oath form of any candidate. Consequently, I hold that the oath taken by the respondent before the Returning Officer on March 29, 1996 was perfectly in accordance with law. In this view of the matter, the validity of the oath taken by the respondent on April 3, 1996, need not be gone into. Learned Counsel for the petitioner had submitted that it need not be gone into as to whether there was any tampering regarding the time of receipt of nomination paper of the respondent on March 29, 1996, and April 3, 1996, and if there was any tampering at whose instance or behest it was done and who had done it. According to the counsel, it may be taken that the nomination papers were submitted by respondent Jai Singh on March 29, 1996, at 1.17 p.m. and on April 3, 1996 at 12.16 p.m and 12.17 p.m. Be that as it may, from the perusal of the nomination form (Ex.RW6/4, Ex.RW6/6, Ex.RW6/PA and Ex.RW6/PB), shows that there is an obvious tampering which is visible to the naked eye. From the statement of the Returning Officer and of the respondent Jai Singh coupled with the receipt register (entries at Sr. No. 2 and 3 and also at Sr. No. 43 and 44 as also Ex.RW6/1 and EX.RW6/2 dated March 29, 1996), I am of the view that on March 29, 1996, respondent Jai Singh had submitted his nomination forms at 1.17 p.m. and on April 3, 1996, at 12.16 p.m. and 12.17 p.m. This issue is accordingly decided against the petitioner and in favour of the respondent.
25. Issues No. 6 and 7:
These issues were pressed by the learned counsel for the petitioner inasmuch as no evidence was led that even if the nomination papers of Chanda Singh, Rajender Singh and Amarjit Singh were wrongly accepted, the election of the petitioner was materially affected. Consequently, these issues are decided against the petitioner.
26. Issue No. 8:
The petitioner has made allegation in the petition that the respondent- returned candidate had committed corrupt practice as envisaged by Section 123(1)(A)(a) of the Act, which section is reproduced below: .
"123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:-
(1) "Bribery", that is to say- (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as, of (to withdraw or not to withdraw) from being a candidate at an election."
The substance of the allegations made by the petitioner in paras 11 to 13 of the petition to bring the case of respondent having allegedly committed corrupt practice under the aforesaid Section have already been culled out in the earlier part of the judgment, which, of course, have been denied by the candidate in his written statement. In support of the allegations, the petitioner has produced four witnesses i.e. PW1 Balbir Singh, PW2 Kanwal Nain Singh, PW3 Jai Singh and PW4 Balkar Singh. Of course, petitioner himself has rejterated in his statement what the four witnesses had stated.
PW1 Balbir Singh stated in his statement that on March 29, 1996, at about 4 p.m., Shri Kanwal Nain, Sarpanch of village Pakhana had come to his business premises. They knew each other very well as both of them were Sarpanches of different villages in the same Block and they kept on meeting each other. Kanwal Nain told him that he wanted to buy a buffalo. He accompanied him to Gol Market where they met Sultan Singh, who was a Sarpanch of village Manak Majra and he had asked Sultan Singh if he could recommend a buffalo as Kanwal Nain wanted to purchase one. He told that they may get one from Shri Jai Pal of Manak Majra. This must have happened at about 5.30 p.m. Thereafter, he and Kanwal Nain came back to his (Balbir Singh) business premises and at about 7.15 p.m. they started for village Manak Majra and they met him in his 'Bara' at about 7.30 p.m. while he was milking his cow. They talked to him about the purchase of a buffalo and in the meantime Shri Jai Singh, respondent, reached there and he asked him to contest the Assembly elections which were to take place in April, 1996, and sought his help for himself. On the refusal of Jai Pal that he had no interest in politics, respondent Jai Singh asked Jai Pal that if he contested the election, it would be helpful to both of them as during the election campaign, they could use each others vehicles for canvassing and would share the expenses. The polling agents as well as the counting agents of each other could be made use of during the election. He further told him that in the Centre as well as in the State, Congress Party was going to be returned to power and if Jai Pal contested the Assembly election, he would get a petrol pump allotted to him at Nilokheri. On this, Jai Pa! acceded to the request of Jai Singh to contest the election and he did contest the election from 12 Nilokheri Assembly Constituency. This all talk took place in the presence of Kanwal Nain. It has further been stated that the witness accompanied Jai Pal on April 3, 1996 for presenting his nomination paper before the Returning Officer. Bakhshish Singh, petitioner, met him there in the office of the Returning Officer on April 3, 1996 when he had also come to file his nomination paper and there he told him everything what has been narrated above. In the cross-examination on behalf of the returned candidate, the said witness stated that he did not know the names of persons who proposed the name of Jai Pal or even the name of the person who seconded Jai Pal's name and also did not know to which village the proposer and the seconder of Jai Pal belonged. He knew petitioner Bakhshish Singh for the last two years. He, however, did not know to which party the petitioner belonged and on whose party ticket, he fought the last assembly election but has only heard that he belongs to Chautala party. He had no knowledge about the proposer or the seconder of the petitioner. When asked in the cross- examination as to why did he talk to Bakhshish Singh every thing what has been narrated above, he stated that he could not give any special reason as to why did he tell the petitioner Bakhshish Singh regarding the talks between Jai Singh and Jai Pal, and it was just like that he narrated the same. When asked as to whether he narrated about the talks to the other candidates who had come there to file the nomination papers, his reply was in the negative. Ch. Chanda Singh was another person who had filed the nomination papers on April 3, 1996, and he knew Chanda Singh for the last about 10-15 years and they are on visiting terms. On further cross-examination he stated that Jai Pal did show him and Kanwal Nain a buffalo and they milked it but did not like the buffalo.
PW2 Kanwal Nain Singh has stated the same thing as PW1 regarding the alleged talk that took place between Jai Singh, respondent, and Jai Pal. He further stated that on April, 6, 1996, at about 6 p.m. petitioner Bakhshish Singh had come to his residence and there he told him regarding the talk that took place between Jai Singh Rana, respondent and Jai Pal on March 29, 1996. In his cross examination, Kanwal Nain Singh stated that he did not accompany Jai Pal when he went to file his nomination papers and does not know whether PW1 Balbir Singh had accompanied Jai Pal for filing nomination paper. After rejecting the buffalo shown by Jai Pal, he had purchased a buffalo in June, 1996, from the in- laws of one Jit Ram of Village Dadupur for which he sent his son. After the rejection of the buffalo shown by Jai Pal, he did not go to see any other buffalo with Balbir Singh. He is not a member of any political party. He did not canvass or did anything to support the petitioner Bakhshish Singh, in the elections in question. He was suspended as the Sarpanch and was reinstated after about six- seven months in the last year and because of the party faction in the village, he was suspended twice at the instance of the party which had lost the election of the office of Sarpanch. Amarjit Singh and Lal Singh are the prominent persons of the opposite party regarding the election of Sarpanch. It was suggested that both Amarjit Singh and Lal Singh are the supporters of respondent Jai Singh Rana who had filed a petition under Section 177 of the Haryana Panchayati Raj Act against him with the allegation that he had misappropriated the Panchayat funds, the suggestion being that it was for this reason that he was making a false statement. Further questions in the cross-examination are directed to show that he was totally disinterested in the elections. He did not know how many votes were polled in favour of Jai Pal to how many counting agents or polling agents Jai Pal had or how many total number of contestants were there for the Nilokheri Assembly Constituency or with what margin respondent Jai Singh Rana had won the assembly election. Apart from Bakhshish Singh he did not narrate to anybody regarding the talks that took place between Jai Pal and Jai Singh Rana on March 29, 1996. He stated that Bakhshish Singh had come to him on April 6, 1996, to verify the facts which had been told to him by Balbir Singh PW1. He knew Bakhshish Singh for the last seven-eight years and was attending family functions. The suggestion was denied that it was because of the suspicion that the returned candidate Jai Singh Rana had got him suspended that he had deposed falsely.
PW3 Jai Singh stated that on March 30, 1996, at about 7.15 AM. Balkar Singh, Sarpanch of village Gulab Kheri, had come to see him at his residence in the village. At that time he was not at home and was with Jai Pal in his Bara. His servant came to call him. Balkar Singh asked the witness if he could help him in engaging labour for harvesting wheat crop. The witness took Balkar Singh to village Arja Heri for that purpose. Balkar Singh's son also accompanies them. There they met one Randhir Singh at his residence. They told him the purpose of their visit and he said that he would charge Rs. 100/- per day for working as a labourer. While this talk was going on. Shri Jai Singh Rana, respondent, came there and told Randhir Singh that he should give up the job of a labourer and should rather contest the then forth coming assembly elections in Haryana for which he would pay him Rs. 5,000/- and further as the Congress was likely to come to power in the State he (Jai Singh Rana) would get him allotted a Kerosene depot at Nilokheri. On this, Randhir Singh agreed to contest the election and refused to work as a labourer for Balkar. Randhir did contest the election. He told about this talk to many people in Karnal and he mentioned few names like Jai Pal of Village Manak Majra. Bakhshish Singh, petitioner, Chanda Singh of village Butana, Rajender Singh of village Anjan Thali. He had told to all these people on the same day i.e., April 3, 1996, in the Court at Karnal where Bakhshish Singh and the aforesaid persons had come to file their nomination papers for the Assembly election. In the cross-examination, he stated that he did not know as to how many votes were polled by any of the candidates. He stated that there may be about 18 to 19 candidates. He had gone to the Court along with Jai Pal to file the nomination papers. Since he had not accompanied Jai Pal inside the office of the Returning Officer, he did not know who proposed or seconded the name of Jai Pal. He further stated in the cross-examination that he did not tell about the talk between Jai Singh Rana, respondent and Randhir Singh to the Returning Officer on April 3, 1996 as he did not go inside the office. While he was present outside the office of the Returning Officer, Bakhshish Singh, petitioner, asked him what would be the result/trend of the ensuing elections. He told him that since Jai Singh Rana had asked Randhir Singh to contest, what could be said about the result of the election. He had come to depose as a witness as Bakhshish Singh had told him that he had to appear in the Court as a witness though he had not come with Bakhshish Singh, who was the Chairman of the Block Nilokheri, had helped him in getting small jobs done and that is why he had come to the Court on his asking to depose in the Court. He had no friendship or relationship with Bakhshish Singh. On a suggestion made by the respondent's counsel, he stated that he would not go to depose in a Court at his own expenses on the asking of any or every person. He did not know how many votes were polled by the different contesting candidates and with what margin respondent Jai Singh Rana had been elected.
PW4 Balkar Singh PW4 Balkar Singh stated that on March 29, 1996, he had gone to Jai Singh PW3 at his residence in Village Manak Majra at 7 a.m. Jai Singh took him to village Jan Heri. He was not present there and, therefore, he told his servant to call Jai Singh. After Jai Singh had come back, they went to village Jan Heri after taking tea where Jai Singh took them to one Ranjit Singh, where Ranjit Singh was asked if he could provide labour and he told them that labourer was available for Rs. 100/- per day and he could provide ten labourers. At that time said Jai Singh Rana, respondent, came there. There Jai Singh Rana, respondent, asked Ranjit Singh that why he was doing labour and he should give it up and rather he should fill up nomination for contesting the election and he would help him In that regard. He further offered that whatever he was earning by working as labourer, he would give him that much money and would also get him allotted a kerosene depot. On April 2, 1996, petitioner came to his residence and asked him to accompany him to go to Karnal for filing the nomination. He told him that he should take some young men and also told him that Ranjit Singh was also contesting election on the asking of Jai Singh Rana.
27. The respondent produced RW1 Surinder Singh RW2 Balbir Chand, RW3 Amar Singh, RW4 Constable Subhash apart from himself as RW6. The sum and substance of their evidence is that on March 29, 1996 and March 30, 1996, respondent Jai Singh Rana could not be at the places suggested by the P.Ws.
where Jai Singh Rana, respondent, had allegedly asked Jai Pal and Randhir to contest the election and rather on those days Jai Singh Rana was at some other place than the one suggested by the P.Ws.
28. Learned Counsel for the petitioner argued that from the evidence of the P.Ws., which has been culled out above, it is evident that respondent Jai Singh Rana had asked Jai Pal and Randhir to contest the election and promised them that he would get them allotted a petrol pump/kerosene oil depot and had in fact paid Rs. 5,000/- to Randhir thereby committed corrupt practice under Section 123(1)(A)(a), which has already been reproduced in the earlier part of the judgment. It was further submitted that in the written-statement, it was never pleaded by respondent Jai Singh Rana that he was at some other places on March 29, 1996, and March 30, 1996, and, therefore, could not have been at the place suggested by the P.Ws. where he allegedly asked Jai Pal and Randhir to contest the election. No evidence beyond the pleadings could be looked into and it was an afterthought on the part of the respondent to coin a story of alibi. The petitioner had been taken by surprise by the evidence of the respondent pertaining to alibi.
Had this been pleaded in the written-statement, petitioner would have led evidence to show that the plea of alibi was false.
29. On the other hand, learned counsel for the respondent argued that the witnesses produced by the petitioner cannot be believed. It is all a made up story and if the respondent was to ask Jai Pal and Randhir to contest election and had to promise that they would be suitably rewarded by allotment of a petrol pump or kerosene oil depot and had to be paid Rs. 5,000/-, he would have done it secretly and not in the presence of any witness. He could not have created evidence of corrupt practice against himself. So far as the evidence of the respondent is concerned, it was argued that the respondent had denied his presence on March 29, 1996, and March 30, 1996, at the places mentioned in the election petition and it was not necessary to give details in the pleadings as to where was he on March 29, 1996 and March 30, 1996. The petitioner must stand on his own legs and prove by evidence the allegations of corrupt practice.
Even if the plea of alibi was to fail on the evidence led by the respondent, that would not prove the case of the petitioner. It was further argued that the evidence led by the petitioner is at variance with the pleadings in the election petition. For example, it is mentioned in para 12 of the election petition that Randhir Singh had told Jai Singh, respondent, that he was going with Balkar Singh as he had engaged him for harvesting wheat crop for Rs. 100/- per day and it was on this that respondent Jai Singh Rana told Randhir Singh not to worry about the wages and he would pay him Rs. 5,000/- for that period. The evidence which has already been noticed above does not support this plea.
PW4 Balkar Singh is mentioning different village Jan Heri, whereas the other witnesses mentioned Arja Heri and also the name of the person who was asked to stand in election by the respondent as Ranjit Singh whereas other witnesses give the name as Randhir Singh. It was also argued that the way it is being suggested that the petitioner had come to know from the P.Ws. regarding the talk that allegedly took place between Jai Singh Rana and Jai Pal on March 29, 1996, and between Jai Singh Rana and Randhir Singh on March 30, 1996, is a cock and bull story as to why those witnesses allegedly told about the factum of the talks to the petitioner is unworthy of credit.
30. After hearing learned Counsel for the patties, I am of the view that there is no substance in the arguments of the learned Counsel for the petitioner. There is nothing in the evidence to show as to how respondent Jai Singh Rana chose Jai Pal and Randhir Singh to persuade them to stand in the election. There is no evidence that they had acquaintance to such an extent that respondent Jai Singh Rana would try to convince them and induce them to contest elections. It is further no believable that if respondent was to ask them to contest election and promise them allotment of kerosene depot/petrol pump and Rs. 5,000/-, he would do so in the presence of some other persons. He could very well go at a particular time when Jai Pal and Randhir were alone. The purpose as suggested in the petitioner's evidence that respondent Jai Singh Rana had asked Jai Pal and Randhir Singh to contest the election was that he could use their vehicles, polling agents and election agents for his own election is not only far-fetched but no evidence has been led in that regard. Even the petitioner has not stated that in fact the purpose for which Jai Pal and Randhir Singh were asked to contest the election was ever fulfilled or effort was made to fulfill the same. No question was put to respondent Jai Singh Rana on this aspect of the matter. The way the witnesses of the petitioner tell the story as to how they came to tell petitioner Bakhshish Singh that Jai Singh Rana had induced Jai Pal and Randhir Singh to contest the election is unconvincing and cannot be believed. There was hardly any occasion for them to tell to Bakhshish Singh, petitioner. No reason is forthcoming as to why those P.Ws. will talk to Bakhshish Singh, petitioner, about Jai Singh Rana having induced Jai Pal and Randhir Singh to contest the election.
They admit that they never told this fact to anybody else. So far as the question of the respondent not pleading in the written-statement as to where he was on March 29, 1998, and March 30, 1998, suffice it to say that in the written-statement he had denied being present at the places suggested by the petitioner in the election petition. He had denied the same in the witness box also. Even if the evidence has been led by the respondent that he was not present at the places suggested by the petitioner and the same is beyond the pleadings, yet I am of the view that the petitioner must stand on his own legs. As indicated above, the petitioner's evidence lacks credence to be believed regarding the corrupt practice committed by the respondent. This issue is decided against the petitioner.
31. Issue No. 9:
No evidence has been led by the petitioner on this issue nor it was pressed at the time of arguments. Consequently, this issue is decided against the petitioner.
32. Relief:
For the foregoing reasons, the election petition fails and is dismissed with costs, which are assessed at Rs. 3,000/-.