DINANATH SHARMA Vs. TARUN PRASAD CHATTERJEE

JUDGEMENT

(1.) THE Petitioner, a defeated candidate, has called in question the validity of election of Respondent as the member of M.P. Legislative Assembly from 127, Raipur Gramin Vidhan Sabha Constituency, which was held on 25.11.1998. THE result of the said election was declared on 28.11.1998, in which, the Respondent was declared elected by a margin of 15,751 votes.

(2.) THE election is challenged mainly on the ground of "corrupt practice" and "undue influence" allegedly committed by the Respondent and other persons with his consent. It is pleaded that the Respondent was a sitting M.L.A., of Bharatiya Janata Party and he got issued the No Objection Certificate for a piece of land situated in village Hirapur Jarway for giving the same to the local Sikh Community for construction of Guru Singh Sabha Hall. It is specifically pleaded that on 13.11.1998, the Respondent being M.L.A., misused his power/office for furtherance of his election prospects by gratifying and inducing the voters to caste their votes for him by fulfilling the demand of issuance of said No Objection Certificate (for short "NOC") through the Sarpanch namely Pawan Singh Thakur who also belonged to B.J.P. It is further pleaded that in fact the portion of the said land bearing Khasra No. 234 area 1.50 acres was left as funeral ground and the Respondent directed the said Sarpanch to Issue NOC, for this land in favour of Sikh Community for construction of Guru Singh Sabha Hall and the certificate was issued on 13.11.1998 by the Sarpanch to the President of Sikh Community namely Shri Surendra Singh Walia. It is also pleaded that though the application for issuance of NOC was rejected about a month ago by Gram Panchayat, but subsequently it was illegally issued by the Sarpanch at the behest and instance of the Respondent without legal and valid resolution. THE further allegations are that when this fact came to the knowledge of the villagers, there was some agitation and ultimately some report was lodged to the concerned Police Station. It is alleged that by issuing such an illegal certificate, the Respondent successfully gained favour of the Sikh Community who arranged function/programme to weigh the Respondent and his wife by coins among the public making atmosphere in his favour and all this was a corrupt practice committed by the Respondent within the meaning of Section 123 (1) (A) (b) (ii) and Section 123 (l) (B) (b) of THE Representation of the People Act, 1951 (hereinafter referred to as the Act). THE further allegations are that the Respondent got printed the identity slips of voters, in which his name and party symbol were contained and an appeal to cast vote in his favour was also contained. It is pleaded that by distribution of such identity slips to the voters, he has influenced them which has materially affected the result of election, so far as it relates to the returned candidate, and this amounts to undue influence within the meaning of Section 123 (2) of the aforesaid Act.

(3.) TO prove the allegations, the Petitioner examined as many as 9 witnesses and the Respondent examined himself only. At the arguments, learned Senior Counsel for the Petitioner mainly argued that it has been established on record that NOC was issued by the Sarpanch of Gram Panchayat Hirapur Jarway namely Pawan Singh Thakur (P.W. 6) on the instructions and at the behest of the Respondent and due to issuance of such a certificate by him on 13.11.1998, the voters of Sikh Community were happy and they had cast their votes in favour of the Respondent. He referred to various paragraphs of evidence of Petitioner (P.W. 1) and also the evidence of Pawan Singh Thakur (P.W. 6). He also argued that just prior to the date of polling, voter identity slips in form of Ex. P. 6 were distributed by the agents of the Respondent, in which, the symbol of B.J.P. (Lotus) and an appeal was also printed which says that "??. ?. ??. ????????? ???? ?????? ?? ??? ??? ?? ???? ????? ????? ?????" His submission was that printing of such objectionable material at the instance of the Respondent was also an act of corrupt practice and the distribution of the same has unduly influenced the voters which has materially affected the results of the election. He submitted that when such slips came to the knowledge of the voters, the complaints were made to the Presiding Officers of Polling Booth Nos. 127/115, 127/116 and 127/117, but no actions were taken by them. He submitted that this matter was represented before the District Election Officer, Raipur on 23.11.1998 with a copy to Chief Election Officer and Election Commission of India (Ex. P.7). His submission was that both these acts are the instances of corrupt practice as defined under Section 123 (1) (A) (b) (ii) and Section 123 (1) (B) (b) of the Act and the distribution of such slips among the voters further amounts to creating undue influence on them. He further submitted that by printing such an objectionable material at the instance of the Respondent, the Respondent has also violated the norms and guidelines issued by the Election Commission of India and also the Code of Conduct which further vitiates the election of the Respondent.