Uma Shankar Chobey vs Madan and Others

Sanjay Yadav, J.—Order dated 27.03.2012 passed by the Specified Officer, Additional Collector, Damoh is being assailed vide this petition. By impugned order, the Specified Officer, while allowing the election petition by respondent No. 1, has set aside the election of the petitioner as Member, Janpad Panchayat Sammana, District Damoh. Election was held on 18.01.2010 wherein 3265 votes were casted of which 199 votes were declared invalid and of remaining 3066 valid votes, 1065 votes were polled in favour of petitioner and 990 votes in favour or respondent No. 1. The petitioner was declared elected on 03.02.2010. Aggrieved, respondent No. 1 filed an election petition on 15.03.2010 on the ground that, the petitioner adopted unfair means of getting the votes casted in his favour by voters of different wards who casted votes at two places. Another ground raised by the respondent No. 1 was that the returning officer did not resort to fair counting of votes and was politically influenced.

The petitioner though countered the allegations, however, did not lead evidence.

The Specified Office on the basis of claim and the counter framed following issues:

All the issues were answered in favour of respondent No. 1 and against the petitioner.

The petitioner assails the order on the grounds that the conclusion arrived at by the Specified Officer that the petitioner adopted unfair means by getting the votes casted by the voters of different wards was without examining the alleged voters who were named in the election petition. It is urged that no summons were issued to those alleged voters nor were they produced by the respondent No. 1 to prove that they casted votes at two places. It is urged that it is only on hear and say evidence that the conclusion has been arrived at by the Specified Officer. Contending further that the pleadings unless proved with cogent evidence cannot be treated to be proved on mere surmises, it is urged that the Specified Officer taking advantage of the petitioner being proceeded ex-parte has on mere guess work arrived at a conclusion of unfair means of getting the voters from other places. It is also contended that the election petition was not maintainable as the same was not presented as per Rules and that the Specified Officer exceeded in granting relief then sought.

The respondent No. 1 on his turn contradicts the version of the petitioner. It is urged that there were ample evidence on record to bring home the fact that the voters were brought from outside who casted these votes at two places and in favour of petitioner. It is accordingly contended that the Specified Officer did not falter in construing that the election of the petitioner as member Janpad Panchayat, Sammana got vitiated because of use of unfair means.

Considered the rival submissions and perused the record furnished by the Specified Officer, Additional Collector, Damon.

That, Rules 5 and 6 of the Madhya Pradesh Panchayat''s (Election Petition corrupt Practices and Disqualification for Membership) Rules 1995, lays down as to what election petition shall contain and what relief the election petitioner can claim. Whereas Rule 5 requires that the election petition shall contain a concise statement of all material facts on which the petitioner relies, set forth with sufficient particulars, the grounds on which the election is called in question and that the same be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908. Rule 6 stipulates that a partitioner may claim (a) a declaration that the election of all on any of the returned candidates is void and (ii) in addition thereto, a further declaration that he himself on any other candidate has been duly elected.

Furthermore, Rule 21 of 1995 Rules provide for grounds for declaring election to be void. It stipulates:

21- Grounds for declaring Election to be void: (1) Subject to the provisions of Sub-rule (2) is a specified officer is of opinion

(a) That on the date of his election the return candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act; or

(b) That any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) That any nomination paper has been improperly rejected or

(d) That the result of the election in so far as it concerns returned candidate has been materially affected-

(i) by the improper acceptance of any nomination; or

(ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent or

(iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or

(iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder-

the specified officer shall declare the election of the declared candidate to be void.

(2)- If in the opinion of the present authority a return candidate has been guilty by an agent of any corrupt practice, but the Specified authority is satisfied-

(a) that no such corrupt practice was commended at the Election by the candidate and every such corrupt practice was committed contrary to the instruction and without the consent of the candidate;

(b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election: and

(c) that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent;

then the Specified authority may decide that the election of the returned candidate is not void."

The instances of corrupt practices find mention in Rule 22 of 1995 Rules.

That Sub-rule (1) of Rule 23 of 1995 Rules stipulates that at the conclusion of the enquiry of the Specified Officer shall make an order (a) dismissing the election [petition (b) declaring the election of all or any of the returned candidates to be void, or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidates to have been duly elected. The Sub-rule (2) of Rule 23 further stipulates that, if any person who has filed an election petition has in addition calling in question the election of the returned candidate claimed declaration that he himself or any other candidate has been duly elected and the specified officer is of the opinion: (a) that in fact the petitioner of such other candidate received a majority of valid votes or (b) that but for the votes obtained by the returned candidate the petitioner on such other candidate would have obtained a majority of valid votes; the specified officer shall after declaring the election of the returned candidate to be void, declare the petitioner on such other candidate as the case may be to have been duly elected.

That, Sub-rule (3) of Rule 23 further empowers the Specified Officer to take action against all such persons found guilty of corrupt practice. It stipulates-

At the time of making order under this rule, the specified officer shall also make an order-

a. Where any charge is made in the petition of any corrupt practice having been committed at the election, recording-

(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice, and

(ii) the name of all persons, if any, who have been proved to have been guilty of any corrupt practice and the nature of that practice; and

b. fixing the total amount of costs payable and specifying the persons by whom the costs shall be paid:

Provided that a person who is not party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless-

(a) he has been given notice to appear before him and show cause why he should not be so named; and

(b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the specified officer and had given evidence against, of calling evidence in his defence and of being heard.

The Specified Officer, being empowered to impose penalty on such persons found guilty of corrupt practice has to strictly adhere to the stipulation mentioned in Sub-rule (3) of Rule 23.

In the case at hand apparent it is from the pleading as contained in paragraph 2 and 3 of the Election Petition that respondent No. 1 has specifically given the names of voters who have casted the votes at two places. It was therefore, incumbent upon respondent No. 1 to have examined these very voters to substantiate the contentions put forth in the election petition instead of that petitioner as apparent from the finding recorded by the Specified Officer only examined himself and other such persons who were not named in the election petition of having casted the votes in favour of the petitioner. The Specified Officer instead of summoning the person who were named in the election petition having casted votes at two places went on record his conclusion as to the unfair means and the corrupt practice allegedly adopted by the petitioner in the election.

Trite it is that to establish the allegation of corrupt practice incumbent it is upon the election petitioner (respondent No. 1 herein) to have led cogent evidence.

In Surinder Singh Vs. Hardial Singh and Others, it has been held -

It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. We are bound by the decision of the larger Bench in Mohan Singh''s case (supra) as also by decisions of coordinate benches and do not feel inclined to take a different view....

In Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji Meghe and others, it has been observed:

The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, howsoever, strong cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action. (please also see Quamarul Islam Vs. S.K. Kanta and others, ).

In Baldev Singh Mann Vs. Surjit Singh Dhiman, it is held:

...The law is now well-settled that charge of a corrupt practice in an election petition should be proved almost like the criminal charge. The standard of proof is high and the burden of proof is on the election petitioner. Mere preponderance of probabilities are not enough, as may be the case in a civil dispute. Allegations of corrupt practices should be clear and precise and the charge should be proved to the hilt as in a criminal trial by clear, cogent and credible evidence.

In Ram Singh and Others Vs. Ram Singh, :

117- ...Even if the respondent made some admissions in his unguarded moments that would not strengthen the case of the appellants in view of the standard of proof required in an election matter where the allegations of corrupt practice have to be proved beyond reasonable doubt almost just like a criminal case.

In the case at hand the findings recorded by the Specified Officer on the basis of some'' evidence which has been led by respondent No. 1 since does not meet out the parameters as is being set out by various decision of the Supreme Court nor does it take into consideration the cogent evidence of the persons who were said to have participated in casting votes at two places, does not lead to a conclusion that the returned candidate, the petitioner herein has taken recourse to unfair means and corrupt practice as alleged.

In view whereof, the findings arrived at by the Specified Officer being-perverse cannot be given the stamp of approval and are hereby set aside.

There is another aspect of the matter besides the factum of proving corrupt practice. It is apparent from Rule 6 of 1995 Rules that a specific relief as is being delineated therein has to be set for in an election petition.

In the case at hand, the respondent No. 1 as apparent from the election petition has not sought the relief of setting aside the election and declaring it to be null and void. Instead the respondent No. 1 sought the relief of declaring the alleged votes casted in favour of the petitioner as invalid and declare fresh result in favour of respondent No. 1 as elected.

The relief sought by respondent No. 1 election petitioner in the election petition were as under-

Apparent it is from Rule 6 of Rule 1995 that two fold declaration can besought for by the election petitioner, viz, (a)a declaration that the election of all or any of the returned candidates is void; and (b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected. As apparent it is from the relief sought for by the respondent No. 1 that no relief was sought by him for declaring the election as null and void, despite thereof the Specified officer proceeded to declare the entire election void by allowing the election petition. Thus, the Specified officer exceeded the relief sought for by respondent No. 1.

In Om Prakash and others Vs. Ram Kumar and others, it is held "A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute." (Please also see Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi and Others, and Manohar Lal (D) by Lrs. Vs. Ugrasen (D) by Lrs. and Others, ).

In view of these pronouncement of law in respect of relief sought and can be granted by the Court, the decision in Maharishi Ved Vigyan Vishwavidya Peetham v. State of M.P. and others 1998 RN 202 relied by the respondent No. 1 is of no assistance to the respondents.

In view whereof, this Court is of considered opinion that the Specified Officer exceeded in granting the relief by declaring the election of member of Janpad Panchayat Sammana as void which was not sought for by respondent No. 1. For this reason also the order deserves to be set aside.

The next contention put forth by learned counsel for the petitioner is that the election petition which is to be filed u/s 122 of the Adhiniyam 1993 has to be in consonance with rule 3 of the Rules of 1995. It is urged that sub-rule (1) of Rule 3 clearly stipulates that an election petition shall be presented to the specified officer during the office hours by the person making the petition or by a person authorized in writing in this behalf by the person making the petition.

It is urged that in the case at hand the respondent No. 1 had engaged the counsel and it is the counsel who had presented the petition before the Specified officer. To substantiate the submissions petitioner has relied on the order-sheet dated 15.3.2010, the date on which the election petition was presented before the Specified officer. The order sheet dated 15.3.2010 is extracted as:

Decision in Janapad Panchayat, Rehli, Dist. Sagar Vs. Collector, Sagar and Another, , Suman Santosh Kumar Patel Vs. Bhanwati Mahesh Pratap Patel and Another, , Tara Vs. Dabla alias Lalita and Others, and Urmila Devi Vs. Returning Officer (Panchayat) and Others, has been placed reliance on by the petitioner in support of his contention.

In Ramanlal Surajbhan (Supra), an election petition under representation of People''s Act 1951 while holding the presentation of petition by election petitioner as mandatory it has been observed -

The Court is enjoined by section 86(1) of the Representation of the People Act to dismiss the petition if the presentation did not comply with the provisions of section 81. The manner of presentation, by the very nature of penalty imposed for non-compliance, makes it obligatory, and the compliance ought to be strictly within the letters of the law. The Court has no power to act in any other manner. Where the Legislature has in its wisdom made the observance of certain formalities and provisions mandatory, the failure in that respect must be visited with a dismissal of the petition.

The learned counsel for the petitioner relied on the authority of the Supreme Court reported in Khaji Khanavar Khadirkhan Hussain Khan and Others Vs. Siddavanballi Nijalingappa and Another, ; wherein the presentation of an election petition by an Advocate''s clerk in the immediate presence of the petitioner was held to be proper presentation. The Court said that it was in substance though not in form, presentation by the petitioner himself, and, therefore, the requirement of law was fully satisfied. The learned counsel says that the presentation, in the instant case, was made by the counsel, in the immediate presence of the candidate; whether the candidate was present in the room itself or outside, should hardly matter when he was available to the counsel if the Deputy Registrar had any questions to ask, which should be within the personal knowledge of the candidate, or if he had any doubts as to the identity of the person presenting the petition. The candidate did appear before the Deputy Registrar on the previous day for swearing an affidavit. The petition was kept duly signed on that day. The authenticity of the person was not in doubt. Should it not, therefore, be sufficient compliance if the formality of presentation was done by the counsel and the candidate waited outside the room? If required, he could be called in.

In my view, the formality of presentation by the candidate himself, however, insignificant it may appear under the circumstances, was yet a mandatory formality, the non-observance of which invalidate the presentation. If the candidate waited outside the room or was somewhere away, the presentation could not be construed as one in his immediate presence, to imply presentation by him personally. It was all the same presentation by a counsel.

A similar view has been expressed in Suman Santosh Kumar Patel (supra) wherein it was observed-

8- ...there is distinction between the ''present'' and ''presentation''. Even if the Election Petition was present before the Sub-divisional Officer on 26.7.1997 even then it cannot be said that the election petition as required under Sub-rule (1) of Rule 3 of 1991 Rules was presented by the Election Petitioner before the Sub-divisional Officer on 26.7.1994 as it is established from the record that it was in fact presented to the Office Superintendent of the Collectorate Rewa on 23.7.1994 and by evidence no link has been established regarding the fact that it was taken back from the superintended on 23.7.1994 and was presented on 26.7.1994 to the Sub-Divisional Officer. It thus, cannot be held that the Election Petition was presented to the Specified Authority on 23.7.1994 by the Election Petitioner himself. Apart from this it is a settled position of law that if a thing is required to be done in a particular manner then either it should not be done in the manner provided for or it should not be done at all. The presentation of Election Petition was not done in the manner provided therefore.

Though it is contended on behalf of respondent No. 1 that he was very much present when the election petition was filed by his counsel and that he has authorised his counsel to file his petition by endorsing the words ''election petition'' in the Vakalatnama, in the considered opinion of this Court is of no assistance to the petitioner.

The Vakalatnama said to have been executed in favour of the counsel was the following terms:

The authorization to file an election petition has to be specific and not by mere endorsement as has been put in the Vakalatnama. It is not an authorization as is required under Sub-rule (1) of Rule 3 of 1995 Rules which clearly stipulates that there should an authorisation of writing in favour of the petitioner for presenting the election petition.

The decision relied upon by the petitioner in Renu Shah Vs. Kant Shirh Dev Singh, , is of no assistance to respondent No. 1 as the same turn on its own fact wherein the order sheet dated 21.7.2010 specifically recorded that the presentation of the petition was by election petitioner who appeared along with the counsel

Whereas the same is not the case in hand. Even the respondent No. 1 did not put his signature on the order sheet dated 21.7.2010 as would lay any credence to the submission put forth on behalf of respondent No. 1 that he was present and that the election petition was presented by him along with his counsel.

In view whereof, and taking into consideration the stipulation contained in Rule 8 of Rules 1995 which mandates that if provision of Rule 3 or rule 4 or rule 7 has not been complied with the petitioner shall be dismissed by the specified officers. This Court is of the considered opinion that the Specified officer committed grave error in entertaining the election petition not presented by the election petitioner (respondent No. 1).

Having thus, considered it is held that the impugned order passed by the Specified Officer setting aside the election of the petitioner as Member, Janpad Panchayat, Sammana, is not sustainable in the eyes of law, accordingly the same is quashed. In the result petition is allowed. However, no costs.