Indian Kanoon - Search engine for Indian Law

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.

­: 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 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.

­: 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.