Sh. Khem Chand Koli vs Ms. Darshna Jatav on 3 January, 2009

[Cites 17, Cited by 0]

Delhi District Court

Sh. Khem Chand Koli vs Ms. Darshna Jatav on 3 January, 2009

     IN THE COURT OF Dr. KAMINI LAU: ADDL.
             DISTRICT JUDGE: DELHI


Petition No. 35/2007

Sh. Khem Chand Koli
C10, Karawal Nagar,
New Delhi - 110 049
                                     ................. Petitioner
           Versus

1.    Ms. Darshna Jatav
      W/o Sh. Dharmender Kumar,
      88D, Bhagwan Nagar,
      New Delhi - 14

2.    Sh. Sanjeev Kumar Chotala
      S/o Late Sh. Surender Mohan,
      212, Sunlight Colony,
      No. 1, New Delhi

3.    Sh. Kalu Ram Bharti
      S/o Late Sh. Sumera Bharti
      198, Jeewan Nagar,
      New Delhi - 14

4.    Sh. Mahender Kumar
      S/o Late Sh. Ganga Dass,
      19, Masjid Road, Bhogal,
      Jangpura, New Delhi - 14

5.    Sh. Vishan Pal Gautam
      S/o Sh. Ram Chandra
      Plot No. 6, 3rd Floor,

                         :  1  :
       Baghichi No. 3, Near Shalimar Cinema,
      Ashram, New Delhi.

6.    Sh. Bachan Singh
      S/o Late Sh. Prabhu Dayal
      199, Jeevan Nagar,
      New Delhi - 14.

7.    Sh. Pradyot Kumar
      S/o Late Sh. Mathura Prasad
      46, Sunlight Colony No. 1,
      New Delhi

8.    State Election Commission
      Through Election Commissioner,
      Nigam Bhavan, Kashmere Gate,
      New Delhi
                                 .............. Respondents



Date of Institution:                     21.4.2007

Arguments heard on:                      17.12.2008

Date of Decision:                        3.1.2009



                    : J U D G M E N T :




            This   election   petition   has   been   filed   under

Sections 15 to 17 of the Delhi Municipal Corporation Act

                             :  2  :
 1957 by the petitioner Khem Chand Koli who was one of

the contesting candidate in the elections held on 5.4.2007

to   the  Municipal   Ward   no.   156,   Bhogal  for   which

counting   and   results   were   announced   on   7.4.2007   from

where   the   respondent   no.   1   was   declared   as   returned

candidate.  



BRIEF FACTS:

Petitioner's Case:

The election of 272 posts of Municipal Councillor from various wards of Delhi were notified to be held on 5.4.2007 and the last date of nomination for the elections was fixed for 17.3.2007; the date of scrutiny of the nomination was fixed as 19.3.2007 and the last date for withdrawal of the nomination was fixed for 22.3.2007.

The petitioner was the official candidate of Bhartiya Janta Party whereas the respondent no. 1 was the : 3 : official candidate of Indian National Congress and the respondents no. 2 to 7 were the other candidates. The petitioner and the respondent no.1 to 7 were all the contestants from ward no. 156 Bhogal wherein the respondent no. 1 was declared as the returned candidate and the petitioner had secured the second highest number of votes. According to the petitioner the aforesaid election is an apparent example of misuse of its power by the Ruling party and a noticeable case of violation of Model Code of Conduct for the Guidance of Political Parties and candidates for the MCD Elections for 2007. It is stated that the corrupt practices which have been resorted by the respondent no. 1 in the said election have not only made a mockery of, Clause 5 of the Model Code which provides a list of certain persons who are only permitted to enter the polling booth.

: 4 : The elections of the respondent no. 1 has been challenged by the election petitioner on the ground that when the polling was underway on 5.4.2007, at about 12 noon the respondent no. 1 alongwith her husband and other relatives went inside the polling booth and interrupted the peaceful polling process in contravention of the said Model Code. The respondent no. 1 wanted to change her polling agent and they forced the Presiding Officer to favour her and also wanted to make her brother inlaw as her polling agent who is working with demolition squad of the MCD. When the presiding officer objected to the same the respondent no. 1 and her relatives started yelling and shouting at him and also started pressurizing the presiding officer through somebody over phone. It is alleged by the election petitioner that the respondent no. 1 and her relatives were using the mobile phones in the polling booth which is in violation of law.

: 5 : According to him, the husband of the respondent no. 1 is working in Education Department whereas his brotherin law is working with Delhi Police who both entered the polling booth illegally alongwith respondent no. 1 and used their positions unlawfully to pressurize the presiding officer. It is stated that when this illegal and wrongful act of the respondent no. 1 and her relatives were going on there were some representatives of Media who had captured the entire scene. The election petitioner has further alleged that the above said acts of the respondent no. 1 are not only illegitimate but also completely in violation of Model Code since she has not only got her husband, relatives and other persons an illegal access to the polling booth but also interrupted the peacefully going on polling process by shouting and pressurizing the Presiding Officer.

: 6 : According to the election petitioner the construction work of roads in different areas of ward no. 156 Bhogal took place during the election period and after the notification was issued by the Election Commission of Delhi. It is alleged that the respondent no. 1 who was the candidate of Indian National Congress alongwith the local MLA Sh. Tarvinder Singh Marwah undertook the constructions of abovesaid roads at the time of elections.

It is also alleged that Indian National Congress party was in power and respondent no.1 taking the benefit of her position got the roads constructed of ward no. 156. Bhogal with the sole purpose of influencing and wooing the voters of the area to vote for the party in power. The petitioner has further stated that the corrupt practices are a violation of Model Code of Conduct by respondent no. 1 was brought to the notice of Election Commission Delhi vide various letters dated 31.3.2007 (9:00 am); 31.3.2007 : 7 : (17:30 pm); 2.4.2007 (9:00 am); 3.4.2007 and 9.4.2007 by the respondent no. 4 Sh. Mahendra Kumar a candidate of Bahujan Samaj Party but when no reply was received, he wrote another letter on 13.4.2007. Further, a police complaint dated 31.3.2007 is stated to have been lodged with the Chowki Incharge, Jangpura, PS Nizamuddin by the respondent no. 4. According to the election petitioner on 1.4.2007 at about 6:00 am when he had organized a public meeting which was being addressed by the senior leader of the party, the respondent no. 1 alongwith the local MLA carried out a procession which was in total violation of Model Code of Conduct.

Respondent's Case:

In the written statement the respondent no. 1 has raised preliminary objections that the present petition is lacking in material particulars and that the petitioner has not elaborated or submitted the concise statement of the : 8 : material facts on which he relies to challenge the election. It is further stated that the petitioner has miserably failed to setforth the grounds on which he is contemplating to assail the election of the respondent no. 1 in the absence of which the petition is not maintainable. According to the respondent no. 1, the present petition has not been verified in accordance with order 6 Rule 15 CPC and the averments made by the petitioner do not indicate any violation of law, rules and regulations due to which reason the petition is liable to be dismissed. It is also contended that the petition does not disclose any cause of action and the same has been filed with a malafide intent to harass the elected representative of people with ulterior motive to blackmail her.

On merits the respondent no. 1 has denied all the allegations made by the election petitioner and has stated that the she was legally declared elected a : 9 : Councillor from ward no. 156 Bhogal in accordance with law. According to the respondent no. 1, the petitioner has manipulated the photographs with malafide intentions and dishonest motives to harass her by dragging her into uncalled for litigation since the particulars of the alleged journalist has not been disclosed in the petition. A counter allegation has been raised by the respondent no. 3 that she has came to know that rigging and bogus polling was going on in the said booth at the instance of polling agents planted by the petitioner after which she reached at the spot and found that the petitioner has planted an anonymous person as an election agent for her. She intimated the presiding officer about the fraud played and informed the presiding officer that she has constituted one Rahul s/o Sh. Kailash Kayath as her agent in the said booth who was not there and therefore wanted to change her agent. The presiding officer thereafter asked her to : 10 : take permission from the AERO and accordingly the matter was discussed with the AERO through mobile phone who accepted her legitimate request and instructed the presiding officer to permit and allow the said Mr. Narender as her polling agent. She has denied that any pressure was exerted on the presiding officer. The respondent no. 1 has admitted that her husband and one brotherinlaw are government officials but has denied that they used their position to unlawfully pressurize the presiding officer or that the Model Code of Conduct was violated.

Further, in so far as allegations of the construction of roads during the elections are concerned the respondent no. 1 has in the written statement stated that the tendering process and award of the contract with regard to the constructions of road etc. in Delhi and particularly in ward no. 156, Bhogal had already been : 11 : concluded much before the notification was issued by the election commission. It is stated that the alleged letters sent by the respondent no. 4 are baseless and illegal and the same in no manner disclose any corrupt practices committed by the respondent no. 1. Further, on the allegations that she disrupted the public meetings of the petitioner, the respondent no.1 has denied that she alongwith the local MLA Sh. Tarvinder Singh Marwah had carried out a procession while the alleged public meeting was being addressed by senior leader of petitioner's party.

The respondent no. 2 Sanjeev Kumar Chautala; the respondent no. 4 Mahender Kumar; the respondent no. 6 Bachan Singh and the respondent no. 7 Pradyot Kumar have also filed their written statements wherein they have alleged that the said election was won by Congress candidate by using illegal tactics and by : 12 : violating the Model Code of Conduct for the Guidance of Political Parties and Candidates for the MCD elections for 2007. They have supported the case of the election petitioner and stated that not only the respondent no. 1 but also her husband and relatives pressurized the presiding officer and they used mobile phones inside the polling booth. It is also alleged that during this whole incident, the polling process had come to halt and the voters were not allowed to vote.

In his written statement Sri Indu Shekhar Mishra, Returning Officer of Ward no. 156, Bhogal has stated he was responsible for conducting elections to the MCD in accordance with law and free and fair election was the mandate which was discharged completely. According to him, all the steps required to be taken for the said purpose were taken including videography of the area and party office of the candidates of recognized political : 13 : parties as well as the other candidates. He has stated that observers were appointed for the election who visited the area in a regular manner and Returning Officer was equally involved in the exercise. It is pleaded that the general public were informed of the need to maintain purity of elections and the objections, if any were sought from them by way of advertisement in the newspapers with regard to the wrong/ corrupt practices. It is contended that the petitioner at no stage prior to the filing of the petition made any complaint to any of the officials charged with poll duty and therefore the allegations made in the petition are quite mischievous and wrong.

The petitioner has filed his replications to all the written statements wherein he has reaffirmed what he has earlier stated in the main petition.

The record reveals that the respondent no. 2 to 7 have stopped appearing before this court and were : 14 : therefore proceeded exparte.

DOCUMENTS ADMITTED/ DENIED:

Before proceeding further it is necessary to place on record the documents admitted/ denied by the parties. The details of the various documents duly admitted or denied by the parties are as under:

➔ Attested copy of list of validly nominated candidates (Admitted by the respondent no. 1). ➔ Attested copy of the list of Contesting Candidates (Admitted by the respondent no. 1). ➔ Attested copy of the result declaration (Admitted by the respondent no. 1).

➔ Various photographs and copy of the VCD (Neither admitted nor denied by the respondent no. 1). ISSUES FRAMED:

On the basis of the pleadings of the parties and the documents duly admitted and denied by the parties, : 15 : this court had framed the following issues:

1. Whether the pleadings have not been properly verified in terms of Section 15 (4) of the DMC Act?

(OPR)

2. Whether the present Election Petition is without any cause of action? (OPR)

3. Whether the respondent no. 1 has indulged into the corrupt practices? (OPP)

4. Whether the respondent no. 1 has violated the Model Code of Conduct as alleged in the petition?

If yes, its effect. (OPP)

5. Whether the Election of the respondent no. 1 from Ward no. 156, Bhogal is liable to be declared as void? (OPP)

6. In case if the issue no. 5 is decided in affirmative, then whether the petitioner is liable to be declared as Councillor in Ward no. 156, Bhogal? (OPP) : 16 :

7. Relief.

EVIDENCE:

In support of his case the election petitioner has examined as many as 8 witnesses. In his examination in chief by way of affidavit PW1 Khem Chand Koli has corroborated what has been stated in the main petition.

In his crossexamination the witness has stated that he was personally not present at the time when there was alleged disturbance at the various polling booths and that he has filed the present petition on the basis of the information received from his polling agents and also on the basis of the CD received by him later on 10.4.2007. The witness is not aware if the Election Commission had not granted any permission to any newspaper or channel to cover the Elections in the polling booth but according to him he had seen many media persons covering the same. He is, however, unable to give the details of the : 17 : said media persons. He has denied the suggestion that there were no media persons at the spot and that the CD had been got made by him by using trick photography technology. According to PW1, the husband of the respondent no. 1 is working with Education Department, her Jeth is working with Delhi Police as PCR Driver and her Dever Narender Jatav who was appointed as polling agent is working with Delhi Jal Board at present but on the date of election he was an employee of MCD. PW1 has admitted that the husband of respondent no. 1 and her Jeth were not the employees of MCD on the date of election. He has deposed that he came to know about the fact of Narender Jatav being an employee of MCD from some of his party workers which fact he has got verified by making complaints to Central Vigilance Commission (CVC) and the concerned departments but he did not go personally to MCD to verify the same. The witness has : 18 : testified that he did not personally verify the fact if Narender Jatav was working in the Demolition Squad of MCD.

PW1 has admitted that for any public work to be carried out by the Government, tenders are invited first, which is a time consuming process and that for all the public works done during the election period in the area including the work of maintenance of roads the tender must have been invited and the work awarded even prior to the date of Notification of the date of elections. However, according to the witness it is a normal practice that after the work is awarded, the contractor in connivance with the elected members carried out the work only during the election period in order to influence the voters. He has denied the suggestion that Sh. Talwinder Marwah the MLA of the area has no concern with the same and admits that as per the existing practice the : 19 : permission of the local police is required to be taken by any candidate who wants to hold a public meeting or take a procession and without the said permission no meeting or procession can be held. The witness is not aware if the respondent no. 1 had taken the permission from the local police for holding election meetings and carrying out procession. According to the witness, he did not personally verify as to whether the respondent no. 1 had the permission from the local police but stated that he had taken up this issue with the SHO of the area concerned and told him that while he was holding his public meeting and in case if the respondent no 1 held a procession there were every chances of the violence and the public meeting becoming violent. He has stated that he had taken the permission from the local police to hold the public meeting on 1.4.2007 which permission was taken by his election agent Kanti Kumar Sharma. He has denied that : 20 : Darshna Jatav had never disrupted his public meeting either on 1.4.2007 or on any other date and that he has mentioned false facts regarding Darshna Jatav and her relatives who were Government servants of having misused their official position. PW1 has also denied that the Ruling Party had never misused the power and violated the Code of Conduct and the guidelines prescribed for MCD Elections or that Darshna Jatav and her relatives did not influence any Presiding Officer of any polling booth. He has further denied that Darshna Jatav and her relatives were freely using the mobile phones inside the polling booth and violating the Code of Conduct and the existing guidelines. According to the witness, the respondent no. 1 had three polling agents in polling booth No.35 namely two Rahuls and one Narender Jatav. He has admitted that polling agents are appointed at the instance of the candidate after the candidate fills up : 21 : Form 8B in writing and that at a time only one polling agent is allowed inside the polling booth and the others remain outside. PW1 has also admitted that the candidate can change the polling agent with the permission of the Presiding Officer but he is unable to tell whether Darshna Jatav had changed the polling agent with the permission of the Presiding Officer, but, according to him a lot of pressure was put on the Presiding Officer to change the polling agent. He has testified that the Presiding Officer was compelled to talk to certain persons on the mobile phones by the respondent no. 1 and her associates who were present inside the polling booth. He has denied that the respondent no. 1 and her associates did not compel the Presiding Officer to change her polling agent or that Darshna Jatav had changed her polling agent only because of this reason that her polling agent was his representative. According to the witness the respondent no. 1 had : 22 : compelled the Presiding Officer to speak to some other person on the other side on the phone who compelled him to change the election agent and they created pressure on him. He has denied the suggestion that no disturbance was caused in booth No.35 on the date of election or that the election was conducted peacefully. He has also denied that being a discontended candidate he had filed this petition on false facts and admits that he did not make any written complaint to the police with regard to the incident and the only complaint made was telephonically. The witness has further stated that he came to know about the use of telephone in the polling booth by Darshana Jatav and her associates/relative who were 4/5 in number at about 2.30PM, when he went to the polling booth. He has testified that his polling agent had told him about this happening which took place at about 12'O clock when the polling was disturbed.

: 23 : The plaintiff has also examined one Naveen as PW2 who has in his examination in chief by way of affidavit stated that he was working as a polling agent of the petitioner who was BJP candidate for election as a Councillor of the MCD. According to him, being the polling agent he was on duty inside and outside the election booth to check/ verify voters on the basis of voters list provided to him. He has testified that while on duty he saw the respondent and her party persons/ relatives/ associates coming to the booth frequently with voters, forcing entry of people with mobile phones and shouting slogans against the BJP candidates.

In his crossexamination the witness has stated that he does not remember the date and month when the affidavit Ex.PW2/A was signed. He also does not remember the ward no. from which Mr. Kohli contested the elections but according to him the ward no. was : 24 : probably 6. He has denied the suggestion that he was not the polling agent of the petitioner in election or that on the day of election he was not on duty as the polling agent of the petitioner. He has further denied that the respondent no. 1 had not visited the ward no. 6 or that Darshana Jatav and her associates and relatives and party workers had not frequently visited the polling booth and had not forced voters to vote in her favour nor she and her associates and relatives shouted slogan against the BJP workers.

PW3 Kranti Kumar Sharma has in his examination in chief by way of affidavit deposed that he had been working as an official election agent with the election petitioner. He has deposed that the respondent no. 1 made all efforts to disturb the campaign of the BJP candidate by disturbing their procession and meetings and encouraging her people to disturb the same. According to him, he has personally seen the construction of road work : 25 : being got done by the respondent no. 1 during the election period. He has also stated that the respondent no. 1 made all efforts to delay/ interrupt the polling process on the date of election by her commands due to which reason the polling work inside the booth had been stopped for sometime.

In his crossexamination the witness has stated that he knows the petitioner for the last about 2 years being the worker of BJP. He has testified that he has not seen any document to show that the respondent no. 1 was directly concerned with the construction of the road. According to him, she was a sitting member of the corporation and as soon the election was declared she started with the initiation of the work regarding the construction of road in Bhogal and Sunlight Colony. He has denied the suggestion that the respondent no. 1 has no concern with the construction of the road in the area : 26 : during the election or that he has wrongly stated in his affidavit that Darshna Jatav, Congress candidate made all efforts to disturb the campaign of the BJP candidate by disturbing their procession and encouraging her people to disturb such meeting/ procession. He has admitted that when ever any meeting is conducted during the election the permission is required to sought from local Police but he is not aware whether all the meetings/ procession have been conducting by the Darshna Jatav after taking due permission from the local police. According to him, he has not made any written complaint to the local police or to the State Election Commission regarding the attempt of Darshna Jatav to disturb the public meeting of Sh. Vijay Kumar Malhotra. He has denied the suggestion that neither Darshna Jatav nor her persons had disturbed the proceedings in the polling booth.

: 27 : Sh. Mahender Kumar has been examined as PW4 who has in his examinationinchief deposed that he knew the election petitioner Sh. Khem Chand Koli since the time of election as he had contested the election of Municipal Councilor from Ward no. 156, Bhogal Constituency. According to the witness, the respondent no. 1 Darshna Jatav had got the work of construction of road done in the Bhogal constituency after the declaration of the election being a sitting councilor of the area. He has stated that he lodged a police complaint in respect to the same which is Ex.PW4/1 and also wrote to the Election Commissioner V.K. Harit and a copy of the the same was sent through fax to him. The witness has deposed that since the work of carpeting did not stopped despite the same he was compelled to sent further communication on the same subject to the Election Commissioner V.K. Harit by fax. He has proved his : 28 : various communications which are Ex.PW4/2 and Ex.PW4/5; copies of the fax reports of the said communication which are Ex.PW4/6 collectively ( 3 in number). The witness has also made a complaint to the State Election Commission which he delivered in the office by hand which communication is Ex.PW4/7 despite which no action was taken the Election Commissioner or by the Chief Election Commissioner on his communications.

In his crossexamination the witness has admitted that he is one of the respondent in this case being a contesting candidate and that he has received the summons in the present case and had even appeared at this initial stage. According to him, he had come to the court of his own and not at the instance of the election petitioner. He has admitted that he personally did not file the communications on which he is relying upon in the : 29 : court and states that the same were filed by the election petitioner as they had all decided to contest the election petition together. He has denied that all the communications relied upon by him are false and baseless. He has testified that he made the complaint since primafacie the carpeting of roads appeared to be a violation of the model code of conduct as mentioned in the booklet provided by the election commission to the various contested candidate. The witness has deposed that he has not sent any communication to the Election Commissioner or to the Chief Election Commissioner by the registered post and that he has no other documentary records except the fax reports to show that the communications had been sent to the Election Commissioner.

The plaintiff has also examined one Rajiv Chautala as PW5 who has in his examination in chief : 30 : deposed that he knew the election petitioner Khem Chand Kohli being the party candidate in the municipal election. He has testified that he and his wife had gone to cast their vote in polling booth no. 35 ward no. 156, Bhogal on 05.04.2007 when his wife not allowed to cast the vote. The witness has stated that he requested the officials to allow his wife to cast her vote but they did not listen to him. He states that he had seen the respondent no.1 Darshna Jatav inside the polling booth no. 35 talking over the mobile phone to some body.

In his crossexamination the witness has admitted that his brother Sanjiv Chautala was also one of the contesting candidates in the election and that Darshna Jatav personally did not stop his wife from casting her vote but it was her her brother in law Narender who had stopped them. According to him, he did not make any written complaint against Narender to the State Election : 31 : Commission or any other authority. He has denied the suggestion that his wife is not an elector in the ward but admits that his wife did not possess the photo Identity card but according to him she was carrying her school certificate as an identity since it also bears her photograph.

The Presiding officer posted at polling station no. 35, Ward no. 156 on 5.4.2007 namely Sh. Prem Prashad Sonkar has also been examined as PW5. He has in his examination in chief deposed that the election process had gone peacefully, smoothly and uninterrupted till approximately 12.00 Noon when a lady candidate came in alongwith 5 6 persons accompanying her, without his permission and told him that she wants to change her polling agent. He has stated that on this he immediately asked for a police constable whom he told to send them out except the candidate and immediately spoke to his seniors including Sector Officer and Returning : 32 : Officer and intimate them about this incident. He has testified that he spoke to them on his mobile phone after which he changed the polling agent. The witness has stated that under Rule 23, Form no.9, he had the power to change the polling agent. However, he had taken the permission from the Sector Officer as well as from Returning Officer at the time of incident. The witness has admitted the photographs Ex.PW6/1 to Ex.PW6/7 which photographs belong to him. He has further stated that after 12:00 pm the election went on peacefully. On specific question he has testified that there was no incident which disturbed the election process throughout the day.

In his crossexamination the witness has deposed that the lady candidate did not cause any disturbance in the election process. He has admitted that the election process continued peacefully throughout the day.

: 33 : PW7 Kishan Chand is a voter in ward no.156 i.e Bhogal Constituency who has in his examination in chief stated that on the day of the election he had gone to cast his vote in Kilokari Village Community Center, Polling booth no.35. He has deposed that when he was standing in the line for casting his vote, he saw that the respondent no.1 Darshana Jatav who was the contesting candidate, entered the polling station with her 56 persons. He has testified that after she went inside he heard loud voices and he saw that the husband of Darshana Jatav who was having a mobile phone in his hand, was talking to somebody which phone he handed over to the presiding officer. According to the witness the presiding officer was reluctant in talking to the person on the other side of the phone and was refusing to take the telephone but he was compelled by her husband to take the mobile phone and talk to the person on the other side. The witness has : 34 : further stated that the presiding officer was saying on telephone that Darshana Jatav wanted to change her polling agent and he enquired from the person on the other side if he should grant her permission to change the polling agent. He has stated that after completing the conversation he handed over the mobile phone to Darshana Jatav who also spoke to the person on the other side after which Darshana Jatav came out of the polling booth and went away. He has deposed that while going back they were meeting and talking to the persons who were standing in the queue.

In his crossexamination the witness has stated that he does not know Khem Chand Koli and met him only during the elections. He has denied the suggestion that the petitioner had came to his house and requested him to depose but states that Khem Chand Koli has a movement in the area and he had come on the bereavement of a : 35 : neighbour where he had met him and told him about the court case and asked him to depose with regard to what he had witnessed on the day of election. He has admitted that he is having a Cadre worker of the BJP and Khem Chand Koli was contesting the election on the BJP ticket. According to PW7 on the date of election, when the incident took place he was in the queue and there were 14 to 15 persons ahead of him. The witness has admitted that police force was also present in the polling station but states that he did not tell any police officer present at the spot about the incident which was taking place inside nor he made any complaint. However, he had seen one policeman standing at the entrance of the polling booth who was stopping public persons from going inside. The witness has testified that he had casted his vote after 12.00 pm but he has no documentary record showing that his vote was casted after 12.00 PM. He has denied the : 36 : suggestion that Darshana Jatav was not shouting or quarrelling and there was no such incident or that he did not witness anything as alleged in his chief.

Sh. Brij Bhushan has been examined as PW8 who has in his examination in chief deposed that he is serving in the electronic media and is the voter in ward no. 156 i.e Bhogal. According to him, on the date of election he was on duty with the team of Channel TV100 and was to cover the election of entire south Delhi and while they were covering the elections at the Bhogal constituency and were outside the polling booth no.35, he heard loud voices coming from inside the polling booth. Thereafter he went inside the polling station and saw the respondent no.1 Darshana Jatav inside the polling booth alongwith her husband, Dewar and Jeth with mobile phones. He has stated that she was speaking somebody on the phone and was asking the polling officer to speak to the person on : 37 : the other side. The polling officer also spoke on the phone and from the conversation he could make out that they wanted to change the polling agent. The witness has further stated that the polling was stopped for quite some time and the shouting continued. He has further deposed that the husband of Darshana Jatav had also announced that there will be no voting without the voter ID Card or ration card and after sometime they got their own person appointed as polling agent only after which the polling resumed. PW8 has also deposed that while the incident was taking place the same was duly covered by the electronic media including his channel and the shoot of the incident was taken by him. He has proved the CD prepared by him which is Ex.PW8/1. He has further stated that he also covered the election meeting of Vijay Kumar Malhotra held at Samman Bazar on 01.04.2007 which was disrupted by respondent no.1 Darshana Jatav : 38 : and the MLA of the area Talwinder Marwah who came in a procession of the congress party workers to the spot where the meeting was being held. The CD prepared from the digital video of the said shoot which had been made by PW8 is Ex.PW8/2. The said DVD has been duly played in the court and the same is compared with the CD and the same is found to be identical.

In his crossexamination the witness has admitted that Sh. Kishan who has been examined as PW7 is his real brother and he knew the election petitioner for the last 8 years as he is a social worker of the area. According to the witness, no permission is required to cover the elections in any area from any authority and in order to bring out the truth anything can be covered being a reporter. He has deposed that he was employed with TV100 about 3 to 4 months prior to the elections. The witness has stated that he has not placed on record any : 39 : document which shows that he was deputed to cover the municipal elections in south Delhi on the date of elections. However he has placed on record the appointment letter issued by the Managing Director of TV100 deputing him as Coordinator during the elections, copy of which letter is Ex.PW8/3. He has admitted that the he did not enter inside the polling booth but has denied that he did not see what was happening inside the polling booth. The witness has denied the suggestion that the CD is manipulated and made by making use of camera tricks or that he was not physically present in the polling station or in the area nor he had conducted the shoot of the election. The witness has deposed that he had shot the incident from outside the door of the polling booth which was hardly at a distance of 7 to 8 feet from the spot where the incident took place. He has denied the suggestion that there was no public meeting of Vijay Kumar Malhotra at Samman Bazar on : 40 : 01.04.2007 and the CD Ex.PW8/2 is a forged and manipulated. Further, he has stated that the incident dated 1.4.2007 and dated 5.4.2007 which had been shot by PW8 had not been telecasted by the channel but has denied that the same was not telecasted as the channel felt it was not authentic.

The respondent no. 1 has also examined as many as 5 witnesses. She has examined herself as RW1 and in her examinationinchief by way of affidavit she has corroborated what has been earlier stated in the written statement.

In her crossexamination the witness has stated that she came to know that there was a disturbance at polling booth no. 35 since when she reach the spot at polling booth no. 35 an unknown person who met her outside the polling station told her that there was some bogus polling going on inside. She has admitted that the : 41 : said unknown person had casted the vote in her favour as told to by her and that one candidate have two polling agents. According to her, she did not appoint any other person alongwith Rahul as her polling agent and Narender was appointed later. The witness has deposed that she did not give any complaint in writing to any agency that an anonymous person had been implanted as her polling agent but she only made an oral protest with the presiding officer. She has stated that there was no incident of misbehaviour by the petitioner nor he tried to woo her down.

According to her a candidate can appoint only one polling agent which in her case was being appointed as one Rahul who was the only polling agent appointed by her. She has stated that there is required to be another person who relieves the polling agent whose name she cannot recall and that the form which is required to be : 42 : filled up as to the name of the polling agent who is to represent the particular candidate is to be submitted in the morning on the election day one hour prior to the starting of the election which is to be submitted with the Presiding Officer. The witness has admitted her signatures on Form 8B which is Ex.RW1/X1 but she is unable to tell as to which Rahul was being appointed by her as polling agent in Ex. RW1/X1. She does not remember as to how many polling agents she had originally appointed and also if any enquiry was made by her about the presence of her polling agents at the booth. The witness has stated that when she went to the booth she did not find any other person sitting as her polling agent in lieu of Rahul as her agent and therefore, since there was no one acting for her as her polling agent, she made Narender as her polling agent. She has no personal knowledge nor did she made any enquiry as to who was the unknown person acting as her : 43 : polling agent and who had authorized her to sit there as her polling agent. She is unable to tell as to whether any permission is required as per form 8B for every candidate to divulge the names of their polling agents. She is not aware if the Govt. employee particularly in Education Department or any other department have been bestowed with the election duty on the day of election. According to RW1 her husband had accompanied her through out the election day and she had spoken to the AERO regarding the change of polling agent over the mobile phone but she is unable to tell as to who gave her the mobile phone and to whom it belonged. She is not aware whether mobile phone was allowed inside the polling station or not. The witness has identified herself in photograph Ex.RW2/X1 and also her brother in law Sh. Narender Jatav in Ex.RW1/XY as also her husband at point A in the same. She has further identified her brother in law Sh. Vijender : 44 : Jatav in Ex.RW1/XY1. She has also identified herself at point A; her brother in law Narender Jatav at point B; her husband Dharmender Jatav at point C; her Jeth Sh. Bijender Jatav at point D and other Dever namely Sh. Shubash Kumar at point E who also happened to be her election agent in Ex.RW1/XYZ. She has denied the suggestion that they all had no permission to enter inside the polling booth. According to RW1, the MLA of the area is responsible for all the works falling within his jurisdiction which includes sewer, water, electricity etc. whereas the job of the MLC would include horticulture/ parks, roads, cleanliness/ safai and in case if the area MLA get certain complaints or information pertaining to the job relating to the MCD falling within the jurisdiction of the MLC he can call for a meeting and they have a joint sitting for welfare of the people in the constituency. She has admitted that there was a road construction carried out : 45 : in Bhogal Bazar but states that its tender had been passed 34 months prior to the declaration of election which tender was finalized 3 - 4 months prior to the election. She is unable to tell the exact date when the work had commenced but according to her it was started by the contractor to whom the work had been awarded and there had been no sanction for the said work of road cutting/ repair from the Councillor fund. She is not aware whether there had been any approval by the standing committee of the MCD or the permission had been acquired or granted as per MCD Act for the aforesaid work. She has admitted that on 01.04.2007 there was an election procession which was a small election rally for which permission had been taken from police for the said purpose but she did not have the copy of the said permission. She has denied the suggestion that her procession had disturbed the public meeting of petitioner's party which was being addressed : 46 : by his senior party leaders at a prescribed time and a fixed venue for which he had taken valid permission. She is unable to tell whether the name of Sh. Tilak Raj, Bijender Kumar, Smt. Dayawati, Sh. Dharmender Kumar, Smt. Krishna and herself at Sr. No. 128,129,130,132,133 and 137 in the document which is stated to be certified copy of the voter list of the polling booth no. 97 which is Ex.RW1/XYZ1. Further, she is unable to tell whether the name of Sh. Tilak Raj, Smt. Dayawati, Sh. Bijender Kumar, Smt. Krishna, Sh. Dharmender Kumar and herself at Sr. No. 412, 414, 415, 417, 418 and 420 in the document which is stated to be certified copy of the voter list of the polling booth no. 101 which is Ex.RW1/XYZ2. She has denied the suggestion that she and her family members have been indulged in double voting.

The respondent no. 1 has examined her husband Dharmender Kumar as RW2 who has in his : 47 : examination in chief by way of affidavit corroborated the testimony of RW1.

In his crossexamination the witness has stated that he is aware of the allegation levelled against the respondent no. 1 in the petition. He has identified himself in Mark A as well as his brother at Mark B who is working in the Delhi Police as a constable since the year 1995. According to him, at about 11:3011:45 am they came to know that bogus polling was going on inside the polling station and there was no person on behalf of the respondent no. 1 but admits that they have not made any complaint with regard to this. He has testified that one Mr. Rahul was appointed as a polling agent by respondent no. 1 but no enquiry or efforts were made by him as to the whereabouts of Rahul and to his absence. He has admitted that the anonymous person who had been implanted by the petitioner was in lieu for the respondent no. 1 and states : 48 : that he had not seen the petitioner at the site of booth no. 35, ward no. 156 but had seen the anonymous person running out of the polling booth. He has testified that alongwith respondent no. 1 he and his brother Narender had entered the polling station and spoke to the Presiding Officer. RW2 has deposed that the respondent no. 1 as a candidate remained inside the polling booth and Narender also remained there as he was appointed polling agent of respondent no. 1. According to RW2 Sh. Narender is the brotherinlaw of respondent no. 1 who had accompanied the respondent no. 1 two or three times. He has stated that Rahul was appointed as a polling agent by respondent no.1 at booth no. 35 as he was a party worker and that he did not try to find out the whereabouts of Mr. Rahul after the appointment of Narender as polling agent at booth no. 35. Further, the witness has stated that in respect of the procession dated 01.04.2007 the route map and time had : 49 : been given to the police in advance and was duly approved which was mandatory and required to the candidate.

RW3 Narender Kumar who is the brotherin law (Dever) of the respondent no. 1 has in his examination in chief by way of affidavit deposed that on 5.4.2007 he was appointed as polling agent at booth no. 35, Ward No. 156, Bhogal by the respondent no. 1 after taking permission form AERO. According to him, the respondent no. 1 and her relatives did not disturb the election process on 5.4.2007. He has testified that the respondent no. 1 had not raised any slogan or any shouting at the polling booth no. 35 on 5.4.2007 and there was no incident which disturbed the election process throughout the day.

In his crossexamination the witness has stated that on the date of the election he was the polling agent at : 50 : booth no. 35 and that he had gone to the polling station in the noon at about between 12 to 1 pm and had stayed at the spot till the election was over. According to him, when they went to the spot they did not meet anybody hence he was appointed as a polling agent. He has stated that he had gone to the spot on the asking of the respondent no.1 who wanted to put him as her polling agent. He has deposed that when he entered inside the polling station he found that their polling agent was missing and the polling was going on. The witness has further stated that the respondent no.1 found that the polling agent was not present, when she told the Presiding officer that she wanted to appoint him as a polling agent and admits that he was present with her inside the polling station during this conversation. The witness has identified his brother in Ex.PW6/2 encircled at point C and D and his sister in law at point Mark C which is : 51 : Ex.RW2/X1. He has denied the suggestion that when he reached the spot alongwith brother and sister in law they started slogan shouting and created disturbance.

Sh. O.P. Arya, Superintendent in the Education Department, Delhi has been examined as RW4 who has in the examination in chief deposed that he was appointed as an Assistant Electoral Returning Officer and ARO for election held on 05.04.2007, with his posting at ward no. 156, Jangpura Bhogal, during the MCD election of Councillor. He has stated that the Polling booth no. 35 of ward no. 156 was under him and that the petitioner was the official candidate of BJP whereas the respondent no. 1 was the official candidate of Congress party. He has admitted that on 05.04.2007 the Presiding Officer of booth no. 35 of ward no. 156 talked to him on mobile phone for seeking permission for change of polling agent on behalf of respondent no. 1 who had also discussed the matter : 52 : with him. Thereafter, he told the Presiding Officer to do the needful whatever is required for conducting fair and peaceful election after which the election was peaceful through out the day.

In his crossexamination the witness has testified that no person is allowed to take mobile phone inside the polling station but he does not remember exact time when the respondent no. 1 talked to him on that day. According to the witness, the supporters of the candidate are not allowed to enter into polling station. He also does not remember as to male or female candidate talked to him.

RW5 Ct. Urba Dutt has placed on record the photocopy of the diary bearing no. 257 dated 31.3.2007 which is Ex.RW5/1 vide which the application was received in Police Post. Further, the photocopy of the application submitted by the respondent no. 1 dated : 53 : 31.3.2007 seeking permission for holding rally from village Kilokari to Harinagar Ashram is Ex.RW5/2.

In his crossexamination the witness has stated that he cannot identity as to who has received the application dated 31.3.2007 and mark the same to IO and record keeper as he was not posted in the concerned police chowki. He has admitted that the application was received by the department on 31.3.2007 which is as per the official record and that the diary no. has been put on the said application on 1.4.2007. He has denied the suggestion that the record pertaining to the receiving of the application has been manipulated and there has been an interpolation in the received record.

FINDINGS:

I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the : 54 : various issues are as under:

Issue no. 1 Whether the pleadings have not been properly verified in terms of Section 15 (4) of the DMC Act?

Onus of proving this issue was upon the respondent no. 1. The case of the respondent is that the present petition has not been properly verified in terms of Section 15 (4) of the DMC Act as the petitioner has no where stated while verifying the plaint which of the paragraphs are true to his own knowledge and which of the paragraphs are correct on information received and believed to be true showing that it is not in accordance with the procedure laid down under Order 6 Rule 15 CPC. It is also pointed out that the election petitioner has no where stated the legal para which he has mentioned in the verification (i.e. paragraph no. 18 & 19) and as to how he has come to the conclusion that these paras are legal paras.

: 55 : According to the Ld. Counsel for the respondent no. 1 the verification is defective which defect cannot be cured at this final stage. It is also pointed out by the Ld. Counsel that the affidavit filed by the petitioner in support of the petition is not signed and verified as required under the provisions of Order 6 Rule 15 CPC and the petitioner has not cared to cure the defect left by him while verifying the petition as well as the affidavit.

The Ld. Counsel appearing on behalf of the election petitioner has vehemently argued that the issue framed is of a technical nature and the defect if any is not fatal and curable as per law. He has in this regard placed his reliance on the following authorities:

1. T.A. Ahmed Kabir Vs. A.A. Azeez reported in AIR 2002 Kerala 51.

2. Vijaayaragharan Vs. Girija Surenderan & Ors.

reported in AIR 2002 Kerala 62.

: 56 :

3. Ritlal Prasad Vs. Tilak Chari Prasad reported in AIR 2002 Jharkhand 61

4. Bidesh Singh Vs. Madhu Singh reported in AIR 2002 Jharkhand 148.

5. Harbhajan Singh Vs. Mohan Singh reported in PLR Vol. C(II) 1992 (482).

6. Vijay Somani Vs. Ajay Singh reported in AIR 2002 (P & H) 215.

I have duly considered the submissions made before me, the provisions of Order 6 Rule 15 CPC and also Section 15 (4) of the DMC Act. I have also considered the authorities placed before me by the counsel for both the parties. The verification made by the election petitioner in the petitioner is as under:

"..... Verified at Delhi on this 20th day of April 2007, that the statements made in para 1 to 17 of my above petition are true & : 57 : correct to the best of my knowledge & belief, para 18 & 19 are legal paras. Last para is prayer to this Hon'ble Court....."

Further in his affidavit in support of the election petition the petitioner has in para 3 has specifically deposed as under:

"..... I say that the statements made in paragraphs 1 to 17 of my above petition are true to my knowledge and belief, paras 18 & 19 are legal paras......"

In his verification the election petitioner has stated as under:

"...... Verified at Delhi on this __th day of April 2007 that the contents of the above affidavit are true and correct to my knowledge and : 58 : nothing has been concealed there from....."

It is evident that the petitioner has by reference to the numbered paragraphs of the pleadings verified what he verifies from his own knowledge and what information he received and believed to be correct. He has duly signed the same and has also stated the date and place on which it was signed. Even in the affidavit accompanying the petition the verification has been made parawise in which the petitioner has stated that the statements made in the paragraph are true to his knowledge. I therefore do not find any irregularity in the verification made by the petitioner in his petition or in the affidavit and hold that the same is in accordance with the requirements of Order 6 Rule 15 Clause 2 CPC. Issue is decided in favour of the election petition and against the respondent.

: 59 : Issue no. 2 Whether the present election petition is without any cause of action?

Onus of proving this issue was upon the respondent no.1. It is argued by the Ld. Counsel appearing on behalf of the respondent no. 1 that the petitioner has not mentioned sufficient grounds under Section 15 of the DMC Act on the basis of which the petition has been filed. It is also alleged that he has not stated in the petition that the respondent has acted against the grounds as mentioned under Section 17 of the DMC Act. It is submitted that the respondent no. 1 has not violated any provisions of law as enumerated under Section 15, 16, 17 and 22 of the DMC Act nor the same have been explained by the petitioner either in his petition or evidence which have given any cause to the petitioner to file the petition against the respondent no. 1. It is further argued that the respondent no. 1 has acted as per : 60 : the provisions of law and contested the elections as per the guidelines and also as per the Model Code of Conduct which she has never violated. The Ld. Counsel has in this regard placed his reliance on the testimony of PW6 the Presiding Officer of polling station no. 35 ward no. 156 Bhogal who has deposed that there was no incident which had disturbed the election process throughout the day. He has also placed his reliance on the testimonies of RW4 and RW5 in support of his contentions that every thing had been done by the respondent for conducting free and fair elections and there was no cause for filing the present petition.

The counsel for the petitioner has pointed out from the election petition the violations alleged by the petitioner. He has argued that the election petitioner has provided instances of violation of the Model Code of Conduct and also the grounds on which her election is : 61 : liable to be set aside. It is argued that the election petitioner has in his petition has raised specific instances of corrupt practices and use of undue influence by the respondent no. 1 who was a sitting municipal Councillor from the area in question and states that there is no substance in the objection raised by the respondent no. 1.

I have considered the rival contentions made by the parties. I have also considered the grounds raised by the election petitioner in his petition. Needless to say the material constituting the cause of action have been duly mentioned in the election petition. It is evident from perusal of paragraphs no. 6 to 17 of the petition that the election petitioner has specifically provided specific instances of alleged violation including abuse of Model Code of Conduct and use of corrupt practices in the form of undue influence during the elections and polling. Therefore, in view of the aforesaid I find no merit in the : 62 : objection raised by the respondent and hereby hold that there exists a valid cause of action. Issue is decided in favour of the petitioner and against the respondent. Issue no. 3 Whether the respondent no. 1 has indulged into the corrupt practices?

Issue no. 4 Whether the respondent no. 1 has violated the Model Code of Conduct as alleged in the petition? If yes, its effect. Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the election petitioner. The grounds on which the election of the respondent no. 1 has been challenged are two fold. First of violation of various clauses of the Model Code of Conduct and Second of the respondent no. 1 indulging in corrupt practice during the elections.

: 63 : In so far as the allegations regarding the violation of the various clauses of the Model Code of Conduct are concerned it is pointed out by the election petitioner that firstly there has been a violation of Clause 5 of Model Code of Conduct which provide that only the voters, public servants on election duty, the persons authorized by the State Election Commission, a person accompanying the blind or infirm, the election agent and polling agent of a candidate can enter in the polling booth whereas the respondent no. 1 alongwith her husband and other relatives in contravention of the Model Code of Conduct entered inside the polling booth and interrupted the peaceful polling process. It is contended that the respondent no. 1 wanted to change her polling agent and compelled the Presiding Officer to favour her as she wanted to appoint her brother in law who worked with the demolition squad of MCD her polling agent and when the : 64 : Presiding Officer objected to the same the respondent no. 1 and her relatives started yelling and shouted at him and also pressurized the Presiding Officer to talk to somebody over the telephone. It is argued that the respondent no. 1 and her relatives were freely using the mobile phones inside the polling booth which is in violation of law. Secondly it is pointed out that the husband and the brother in law of the respondent no. 1 are government officials and they had illegally used their position to pressurize the Presiding Officer. According to the petitioner, they both entered the polling booth alongwith the respondent no. 1 and used their official positions to pressurize the Presiding Officer which is an abuse of the Model Code of Conduct. Thirdly it has been alleged that there is a violation of Clause VIII of the Model Code of Conduct which prohibits the party in power from announcing any financial grants, laying of foundation stones and making : 65 : promises of construction of roads etc. It is stated that in violation of the aforesaid the construction work of the roads in different areas of ward no. 156 Bhogal took place during the election period even after the notification was issued by the State Election Commission. According to the petitioner, the respondent no. 1 who was the candidate of the Indian National Congress alongwith the local MLA Sh. Tarvinder Singh Marwah undertook the constructions of roads at the time of elections and the respondent no.1 taking the benefit of her position got the roads constructed with the sole purpose of influencing the voters of the area. Fourthly it is alleged that there has been violation of Clause II (6) of the Model Code of Conduct which prohibits the manner in which the meetings for elections should take place. It is argued that on 1.4.2007 at about 6:00 pm when the petitioner was organizing a public meeting at Koli Camp, Hari Nagar Ashram area the : 66 : respondent no. 1 alongwith the local MLA had carried out a procession at the same time and the meeting of the respondent no.1 which was being addressed by the senior leaders of the party of the petitioner, was illegally interrupted.

In so far as the allegations of the corrupt practices are concerned, it is alleged that there has been a misuse of the power by the rulling party since the respondent no. 1 in connivance with the MLA of the area who is also from the same party had got the roads constructed after the notification of the elections which meant to misconduct, misuse of power and indulging into corrupt practices. It is further pointed out that the use of mobile phones by the respondent no. 1 and her relatives by pressurizing the Presiding Officer also meant corrupt practices and undue influence and by taking services of the relatives/ friends who are in government services the : 67 : respondent no. 1 has exercised undue influence during the election for which her result is liable to be set aside.

Ld. Counsel appearing on behalf of the election petitioner has in support of his contentions placed his reliance on the testimony of the election petitioner who has corroborated what has been earlier stated in the election petition. He has further relied upon the testimonies of Naveen and Kanti Kumar Sharma the polling agents of the petitioner; Mahinder Kumar a contesting candidate from the same ward who lost the elections; Rajiv Chautala the brother of Sanjeev Chautala another contesting candidate in the election; Kishan Chand a voter in the area and Brij Bhushan an employee of TV100 who is also a voter of ward no. 156 Bhogal and had covered the election in the area and prepared the CD of the date of election which CD is Ex.PW8/1 and had also taken the photographs of the incident dated 1.4.2007.

: 68 : Ld. Counsel for the election petitioner has further relied upon the testimony of PW6 Prem Prashad Sonkar, the Presiding Officer of polling station no. 35 ward no. 156 Bhogal to prove that the respondent no. 1 has approached him alongwith 56 persons stating that she wanted to change her polling agent.

Ld. Counsel appearing on behalf of the respondent no. 1 has controverted the allegations made by the petitioner and has argued that there is no violation of the Model Code of Conduct nor the respondent no. 1 has indulged into any corrupt practices as alleged by the petitioner. It is argued that the petitioner has not specified the corrupt practices used by the respondent no.1 anywhere in the election petitioner so as to bring it within the ambit of Section 22 of the DMC Act. It is also pointed out that the affidavit of evidence filed by the petitioner is beyond pleadings and documents mentioned in the : 69 : affidavit including the voters list has neither been relied upon nor mentioned by the petitioner in his petition and therefore cannot be relied upon. It is further contended that the election petitioner has no personal knowledge about the allegations made and has raised the grounds in the petition only on the basis of hearsay and information received by him much later. He has argued that no reliance can be placed upon the testimony of the photographer Brij Bhusan who has been examined as PW8 since no permission had been granted to him to cover the elections inside the polling booth by the State Election Commission. He has also contended that the photographs placed on record and the CD had been prepared by way of trick photography and cannot be relied upon.

It is further argued that the election petitioner has failed to prove the material to show that relatives of the respondent no. 1 including the husband and brother in : 70 : law were the employees of the MCD at any point of time. It is pointed out that the petitioner has not verified the fact regarding Narender Jatav working with the demolition squad of MCD and has made false submissions before this court without any verification. It is further argued that for any public work to be carried out by the government, tenders are invited first which is a time consuming process and the public work may be done during election period which include the work of maintenance of road for which tender must have been invited prior to the notification of the election. It is pointed out that the petitioner has not been able to prove the date on which the work has been awarded. Ld. Counsel for the respondent no. 1 has further informed this court that in so far as the incident dated 1.4.2007 is concerned the respondent no. 1 had taken the permission from the local police before taking out the procession and no illegal means had been adopted by her.

: 71 : I have duly considered the rival contentions of both the parties. The petitioner on the one hand has examined himself as his main witness and also his polling agent and voters of the area in an attempt to substantiate the allegations made against the respondent no. 1 whereas on the other hand the respondent no. 1 has examined herself, her husband, her brother in law, the AERO / ARO of ward no. 156 and Ct. Urba Dutt who has brought the record regarding the application of the respondent no. 1 dated 31.3.2007 received vide diary no. 257 seeking permission for holding a rally from Village Kirlokari to Hari Nagar Ashram.

Firstly the fact regarding the respondent no. 1 and her relatives having two voter cards from two different areas has not been specifically mentioned or raised in the election petition and for the first time this aspect finds a mention only in the affidavit of evidence. It : 72 : is evident from the crossexamination of PW1 that he has admitted this fact of not filing the extract of the voter list nor mentioned this fact in the election petition. The relevant extract of his crossexamination is as under:

........ "I did not file the extract of voter list in respect of Darshna Jatav and her relatives. Voltd. I got certified copy of these documents of extract of voter list later from the SDM office and hence they were filed later. I did not mention this fact regarding the respondent no. 1 and her relatives having two voter cards from two different polling stations in my petition. I came to know regarding this fact later and hence I have raised this aspect only in my affidavit....."

: 73 : Therefore in view of the aforesaid the Election Petitioner cannot raise this aspect now at this belated stage not having raised the same in his petition earlier as required under Section 15 of the DMC Act and take the respondent no.1 by surprise.

Secondly in so far as the allegations regarding the violation of Model Code of Conduct are concerned it is necessary to highlight that the Model Code of Conduct is a document meant only for guidance of political parties and candidates. Model Code of Conduct was evolved with the consensus of political parties in India with an intent to strengthen the roots of political system in our country. Apparently, it has no statutory backing and many of its provisions are not legally enforceable and it is the political parties who have themselves consented to abide by the principles embodied in the said Code and therefore it binds them to respect and observe it in letter and spirit.

: 74 : Therefore, it is only the public opinion which is the moral sanction for the enforcement of the Model Code of Conduct due to which reason the Election Commission ensures its observance by the political parties and their candidates in discharge of its Constitutional obligations of superintendence, direction and control of elections as provided under Article 324 of the Constitution of India.

The Model Code of Conduct covers in detail the important aspects of electioneering like meetings, and processions, speeches and slogans, posters and placards etc. and is only in the nature of an appeal to the political parties and their candidates to observe a minimum standard of conduct and behaviour to ensure free and fair elections. The Model code existing as on date, lays stress on certain minimum standards of good behaviour and conduct of political parties, candidates, their workers and supporters during the election campaigns apart from how : 75 : a public meeting, procession by the political parties and candidates are required to hold and how the political parties should conduct themselves on the polling day at bolling booths. The Election Commission had in the mid of 1980's suggested that certain provisions of the Model Code should be given statutory sanction by bringing them on the statute book. The Goswami Committee on Electoral Reforms also went into the matter and enumerated certain items which should be brought within the ambit of the electoral law making a violation thereof an electoral offence but later in the year 1990 the Election Commission changed its mind and was then now of the view that bringing the Code on the statute book would be defeating the measure because any violation of the Code must have a quick reaction and remedial measure which may not be possible if the matters are taken to the courts and become a subject of examination in a regular judicial : 76 : process. The Election Commission also felt that any judicial pronouncement after the election is already over would have a little relevance and it accordingly withdrew its earlier recommendations to the Code as a statutory backing.

Be that as the case may be, Model Code of Conduct may not have a statutory backing, but does that absolve the State Election Commission from performing its constitutional obligation of ensuring free, fair and clean elections. Incidents of voters being subjected to all kind of inducements, evil practices, tempting offers or a candidate misusing and abusing his authority are not rare. Can, then the Election Commission abdicate its constitutional obligation when confronted with such a violation. The answer obviously is 'No'. The Election Commission is armed with sufficient authority and jurisdiction to hold any inquiry, take necessary steps, issue any directions or : 77 : orders to ensure purity in elections by appropriately dealing with the violations.

The Model Code of Conduct is a sacrosanct document which all political parties, candidates, workers are required to honour. The Constitutional obligation cast upon the Election Commission is to ensure its compliance in letter and spirit and that its violation does not go un noticed, unattended or unpunishable (in case if the alleged violations has a statutory backing). Legally the election of the respondent no. 1 cannot be set aside by the court on the ground of violation of the Model Code of Conduct yet the courts of law are not helpless and directions can always be issued against the Election Commission to compel them to act and fulfill their constitutional obligation. It may be noted that the significance of the Model Code of Conduct is essential during the period of elections and therefore it is necessary : 78 : that on receipt of any complaint the Election Commission should immediately intervene and take steps to set at rest the controversy raised by the rival parties.

In the present case it is evident that the election petitioner, the other contesting candidates and voters in the area are stated to have sent information to the State Election Commission regarding violation of Model Code of Conduct by the respondent no.1. On the information having been received by them, the obligation to act in respect of the alleged violation is upon the State Election Commission. The elections have already concluded but it cannot be stated that the violations of Model Code of Conduct are not actionable. Even at this stage if the State Election Commission after conducting due inquiry arrives at a conclusion that there has been a violation by any political party of any of the Clauses of the Model Code of Conduct and that such violation has a : 79 : statutory backing or is punishable under the law, it can set into motion the legal machinery and initiate appropriate action against the violating party. However, since the violation of the Model Code of Conduct is not a ground on which the election of the returned candidate can be set aside, therefore, under these circumstances it will not be proper for this court to make any observations with regard to the alleged violations made by the respondent no.1 and it shall be open for the State Election Commission to take appropriate action since it is evident from the testimony of witnesses examined by the Election Petitioner that a complaint has also been made to the State Election Commission on the aforesaid aspect.

Coming now to the allegations of the election petitioner with regard to the respondent no. 1 indulging into corrupt practices. The first instance of corrupt practice as highlighted by the election petitioner is with : 80 : regard to the constructions of road in the area by the respondent no.1 in collusion with the M.L.A. of the area who is from the same political party which according to the petitioner has been done after the notification of the elections. The petitioner in this regard has not examined any witness from the Corporation to bring on record the date on which the tender have been invited or the date on which the tender regarding construction of work was awarded. The relevant extract of PW1 in this regard is as under:

....... "It is correct that for any public work to be carried out by the government, tenders are invited first which is a time consuming process. It may be correct that for all the public works done during the election period in he area including the work of maintenance of roads the : 81 : tender must have been invited and the work awarded even prior to the date of Notification of the date of elections" ........

The witness has further testified that: ........ "I am not aware of the date when the work was awarded. I am also not aware when the said work was required to be completed" ...... It is a settled law that in order to prove corrupt practice in any election petition the standard of proof is generally speaking like that in a criminal trial which require strict proof of charge beyond reasonable doubt whose burden is upon the petitioner which burden does not shift as held by the Hon'ble Supreme Court in the case of Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji : 82 : Meghe reported in AIR 1995 SC 2284.

Applying the aforesaid principles of law to the facts of the present case it is evident that the election petitioner has not placed on record cogent material to show that the public works done during the period of election including the construction of road was within the perview and control of the respondent no. 1 Darshna Jatav. Further, he has not been able to bring on record material to prove that the tender was invited and the work awarded for construction of roads in the area after the notification of elections. Simply because the work of construction of road and carpeting was done after the notification of the election, it would not give rise to a presumption of undue influence. Be application of principle of proving the charge of corrupt practices beyond reasonable doubt, I hereby hold that the petitioner has not been able to prove the alleged connivance between : 83 : the M.L.A. Sh. Talwinder Singh Marwah and the Corporator Darshana Jatav both from the same political parties beyond reasonable doubt to bring it within the ambit of undue influence and corrupt practices as provided in Section 22 of the DMC Act Secondly there are allegations that the respondent no. 1 alongwith her relatives who were government servants had used their official positions to pressurize the Presiding Officer to get her election agent changed on the day of election and for the said purpose she alongwith her relatives were found freely using their mobile phones in violation of the Model Code of Conduct. In this regard the photographs of the respondent no. 1 and the CD showing her inside the polling booth has been placed before this court which CD has been proved by PW8 Brij Bhushan. Though, the respondent no. 1 has taken a defence that the same is only a camera trick yet it : 84 : is evident that she in her crossexamination has identified herself both in the photographs and in the CD. The court has also observed and identified her other relatives as her husband and the brother in law who have both appeared to depose before this court. Entering the polling booth and using the mobile phones are violations of the Model Code of Conduct but the various allegations regarding the use of undue influence by the relative of the respondent no. 1 upon the Presiding Officer if proved can certainly be a ground for disqualification of the election of respondent no. 1. The short question now before this court is firstly whether the relatives of the respondent no. 1 i.e. her husband and brother in law were government servants and secondly whether they had used their influence as such government officers to pressurize the Presiding Officer to do something which e would otherwise not have done.

: 85 : Prem Prashad Sonkar the Presiding Officer of booth no. 53 of ward no. 156 Bhogal has been examined as PW6 and his testimony is most relevant in ascertaining this aspect of undue influence. He has in his examination admitted that the lady candidate i.e. the respondent no. 1 had come to him alongwith 56 other persons without his permission and informed him that she wanted to change her polling agent on which he told her that under clause 5 of the DMC Act which concerns the entry, all other persons should go out first. He has stated that he immediately asked the police constable to send them out except the candidate and thereafter spoke to his senior officers including Section Officer and Returning Officer and intimated them about the incident and changed the polling agent. He has also identified himself in the photograph and on being asked about the disturbance in election process he has specifically stated that there was : 86 : no incident which disturbed the election process throughout the day. The relevant portion of his cross examination is as under:

..... "Court Question: Was there any incident which disturbed the election process?

Ans: There was no incident which disturbed the election process throughout the day" .....

The testimony of RW4 the AERO/ ARO of ward no. 156 Bhogal is also relevant in this regard wherein he has corroborated and supported the testimony of PW6 to the extent that the Presiding Officer had spoken to him on mobile phone for seeking permission to change the polling agent on behalf of the respondent no. 1 and he told the Presiding Officer to do the needful whatever is required to conduct fair and peaceful elections. The : 87 : relevant extract of his examination in chief is as under:

....... "It is correct that on 5.4.2007 the Presiding Officer of booth no.

35 of ward no. 156 talked to me on mobile phone for seeking permission for change of polling agent on behalf of the respondent no. 1. Respondent no. 1 has also discussed the matter with me for change of her polling agent on mobile phone. Then I told the Presiding Officer to do the needful whatever is required for conducting fair and peaceful election. The election was peaceful throughout the day".......

In his crossexamination he has admitted that no person is allowed to take mobile phone inside the polling station but he does not remember the exact time when the respondent no. 1 talked to him on that day.

: 88 : According to him, the candidate told him to talk to the Presiding Officer for change of the agent. He has further admitted that the supporters of the candidate are not allowed to enter in the polling station but according to him the election was peaceful throughout the day and there were no obstructions.

Section 22 (2) of the DMC Act provide that Undue Influence is deemed to be a Corrupt Practice. The term 'Undue Influence' has been defined in Clause 2 of Section 123 of the Representation of Peoples Act as any direct or indirect interference or attempt to interfere on the part of a candidate or his agent or of any person (with the consent of the candidate or his agent) with the free exercise of the electoral right.

I have been taken through form 9 and it is evident from Rule 23 Form no. 9 that the Presiding Officer has a power to change the polling agent. It is an : 89 : admitted case of the respondent no. 1 that she wanted to change her polling agent and it is for this reason that she had approached the Presiding Officer and requested him to allow her to change the polling agent. It is evident from the CD placed on record and also from the photographs that the respondent no. 1 was accompanied by her husband and brother in law when she had gone to the Presiding Officer but it appears from the statement of PW6 that he asked other persons to go out as their entry was not permissible for which purpose he also took the assistance of police Constable who sent all them out except the respondent no. 1. There is nothing on record to show that the said persons who accompanied the respondent no.1 caused any obstruction to the polling or that they did not comply with the directions issued by the Presiding Officer. Rather on the contrary, both the Presiding Officer and the A.E.R.O. have specifically : 90 : stated that there was no disruption to polling. Even the C.D. placed on record does not show that the relatives of the respondent no.1 had disrupted the polling process or defied the directions of the Presiding Officer.

It is the right of any contesting candidate to appoint/change his or her polling agent as provided in Rule 23 form no. 9. Merely because a candidate approaches the Presiding Officer of a polling booth to change the polling agent alongwith her family will not be a reason to presume undue influence. Firstly the Presiding Officer admits that the relatives of the respondent no.1 had been asked to leave the room and they complied. Secondly the Presiding Officer and the AERO have both admitted that there was no disruption to the election process and thirdly the change of the election agent is permissible under the Rules and lastly the petitioner has not placed on record any material to prove : 91 : that the husband or the brother in law of the respondent no.1 used their influence as government servants to pressurise the Presiding Officer to change the polling agent. There is nothing to show that Narender Jatav is a government servant, rather Narender has specifically deposed before this court that he is doing a private business. The husband of the respondent no. 1 who was accompanying the respondent no. 1 on the date of election is also not an employee of the MCD and rather is a comparatively junior functionary i.e. UDC posted in Maulana Azad Medical College. There is nothing on record to prove that he had exercised his official position to assist the respondent no. 1 on the date of election while getting the election agent changed. The evidence on record does not support the case of the petitioner and also does not prove that by the manner in which the respondent no.1 got her own election agent changed, directly or : 92 : indirectly interfered with the exercise of electoral rights of an elector as provided under Section 123 clause 2 of the Representation of Peoples Act so as to bring it within the ambit of Section 22 of the DMC Act as a ground for disqualification of a returned candidate under Section 17 of the DMC Act. The authorities in the case of Sudhir Laxman Vs. Amrit Dang reported in AIR 1960 (Bombay) 249; Harkirat Singh Vs. Amrinder Singh reported in AIR 2006 (SC) 713; J.P. Mukara vs. Lachhi Ram reported in AIR 1954 (SC) 686; Kamal Nath Vs. Sudesh Verma reported in AIR 2002 (SC) 599 are of no assistance to the petitioner.

Therefore, under these circumstances, I hereby hold that in so far as the violation of Model Code of Conduct is concerned, it is no ground for setting aside the election of a returned candidate under the DMC Act and the only remedy available to the election petitioner is with : 93 : the State Election Commission who is already ceased of the matter and is expected to take necessary action as per law. However, in so far as the allegations of the respondent no.1 indulging into corrupt practices is concerned, the petitioner has not been able to discharge the onus upon him. Issues are disposed off accordingly. Issue no. 5 Whether the Election of the respondent no. 1 from Ward no. 156, Bhogal is liable to be declared as void?

Issue no. 6 In case if the issue no. 5 is decided in affirmative, then whether the petitioner is liable to be declared as Councillor in Ward no. 156, Bhogal?

Both the issues are clubbed together for the sake of convenience being connected and the issue no. 6 being consequential. In view of my findings with regard to the issues no. 1,2,3 and 4 which are not being repeated for the sake of brevity, I hereby hold that the election of : 94 : the respondent no. 1 is not liable to be declared as void in respect of ward no. 156, Bhogal and hence there is no question of the election petitioner being liable to declared as elected. Issues are decided in favour of the respondent no. 1 and against the election petitioner. Relief:

In view of my findings with regard to the various issues, I hold that no ground has been made out for setting aside the election of the Respondent no. 1 on the allegations of the returned candidate indulging into corrupt practices. In so far as the allegation of the petitioner regarding the respondent no.1 having violated the Model Code of Conduct are concerned, I hereby hold that violations of the Model Code of Conduct cannot be a ground for setting aside the election of the respondent no.1. However since a complaint is stated to have been : 95 : made to the State Election Commission of such a violation it is hoped and expected that the State Election Commission in order to fulfill its constitutional obligation of maintaining purity in elections would take appropriate steps in accordance with law to enforce the faith of the electors in the independence and fairness of the electoral process and for the said purpose the State Election Commission shall be at liberty to have access to the evidence and material placed before this court by the petitioner. Copy of this order be sent to the State Election Commission for information and necessary action as per law.

The election petition is hereby dismissed. Parties to bear their own costs. File be consigned to Record Room.




Announced in the open court      (Dr. KAMINI LAU)
Dated: 3.1.2009             Addl. District Judge: Delhi



                                :  96  :
 Khem Cahnd Koli            Vs.  Darshna Jatav

3.1.2009

Present:     Election petitioner in person alongwith Dr. 

             N.N. Dhingra and Ms. Kalpana Anil 

             advocates.

             Respondent no. 1 in person.

             None for other respondents.

Vide my separate detailed order dictated and announced in the open court, I hold that no ground has been made out for setting aside the election of the Respondent no. 1 on the allegations of the returned candidate indulging into corrupt practices. In so far as the allegation of the petitioner regarding the respondent no.1 having violated the Model Code of Conduct are concerned, I hereby hold that violations of the Model Code of Conduct cannot be a ground for setting aside the election of the respondent no.1. However since a complaint is stated to have been made to the State Election Commission of such a violation it is hoped and expected that the State Election Commission in order to fulfill its constitutional obligation of maintaining purity in elections would take appropriate steps in accordance with law to enforce the faith of the electors in the independence and : 97 : fairness of the electoral process and for the said purpose the State Election Commission shall be at liberty to have access to the evidence and material placed before this court by the petitioner. Copy of the detailed order be sent to the State Election Commission for information and necessary action as per law.

The election petition is hereby dismissed. Parties to bear their own costs. File be consigned to Record Room.

ADJ:DELHI 03.1.2009 : 98 :

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Delhi District Court

Sh. Khem Chand Koli vs Ms. Darshna Jatav on 3 January, 2009