THAKUR SEN NEGI Vs. DEV RAJ NEGI

JUDGEMENT

(1.) The appellant filed an Election Petition No. 12 of 1985 in the High Court of Himachal Pradesh under Sections 80, 81, 100 and 101 of the Representation of the People Act, 1951 (hereinafter called the R.P. Act') challenging the election of respondent No. 1, Dev Raj Negi from Kinnaur (scheduled Tribe) Assembly Constituency to the Himachal Pradesh Legislative Assembly. The appellant and respondent No. 1 were the only two candidates in the field. The appellant contested the election as an independent candidate whereas respondent No. 1 was fielded as a candidate of the Congress (I) party. At the said election the total number of votes polled were 24, 536 out of which 834 were declared invalid. The appellant secured 10,843 votes while respondent No. 1 secured 12,859 votes. Respondent No. 1 was thus declared elected from the said constituency on 28th May, 1985 by a margin of 2,016 votes. The appellant alleges that respondents Nos. 1 and 2 jointly and severally committed certain corrupt practices by levelling accusations concerning him which were false to their knowledge and which they believed to be false. It is further contended that respondent No. 2 indulged in acts of corrupt practices with the consent of respondent No. 1 On account of their having resorted to corrupt practices, the result of the election was materially affected. According to the appellant respondent No. 2 with the consent of respondent No. 1 published and distributed posters wherein false allegations tarnishing his image were made with a view to prejudice the minds of the voters against him. Further, alleges the appellant, the Chief Minister, Virbhadra Singh, toured the State between 11th and 23rd May, 1985 and made speeches at various places in the constituency of the appellant to the effect that if the voters from that constituency did not vote in favour of the Congress (I) candidate the existing projects will not be executed and new ones will not be undertaken in that constituency. The Chief Minister thus acted as the agent of respondent No. 1 and made the spechees in the presence of the latter which were in the nature of veiled threats to the voters that if they did not vote for the Congress (I) candidate their constituency will suffer. The learned Judge of the High Court observed that in case the publication of the posters, such as Exhibit P1, is proved to have been made with the consent of respondent No. 1 or his agent and the facts stated therein are shown to be false in relation to the personal character and conduct of the appellant and such statements are shown to have prejudiced the prospects of the appellant then such acts on the part of respondent No. 1 and his agent would amount to corrupt practice within the meaning of Section 123 of the R.P. Act.

(2.) Issues were framed on 8th January, 1986. In view of the passage of time the only issues which have relevance are those concerning corrupt practice which are three in number, namely:

(3.) Now the details regarding publication and distribution of posters are to be found in paragraphs 8 and 39 of the Election Petition. The learned Judge in the High Court points out that although the names of the persons to whom the posters were distributed or the places where they were pasted have not been stated, that omission may not be material if the fact of publication and distribution is otherwise established. The learned Judge then examines the evidence in regard to the distribution of posters in different villages and finds the same unacceptable. He discusses the evidence of each witness in regard to the meetings held in various villages between 11th and 23rd May, 1985 addressed by RW l2 Virbhadra Singh. The learned Judge finds the quality of the evidence in regard to the election speeches of RW 12 not strong enough to conclude that he had uttered a veiled threat that if the voters did not vote for his party's candidate the developmental works and schemes in their areas would not be executed. Counsel submitted that the evidence of a host of witnesses was brushed aside solely on the ground that their names were not mentioned in the election petition as well as the affidavit of better particulars furnished at a later date. It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the Court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the decision of the ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence. The election result shows that both the contesting candidates were influential persons having a strong hold on large numbers of people of the constituency. Between the two the appellant was a far more influential person who had been in office since long and had held important positions. He had been in active politics for the last many years and had won many elections. Loss in this contest must have given him a rude shock. How an election Court should evaluate the evidence in such a situation has been stated time and again by this Court. It would be sufficient if we extract a passage from this Court's decision in Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660 at pp. 671-672 which reads thus: