GOVABHAI HAMIRBHAI DESAI Vs. PATEL HARJIVANBHAI HIRABHAI

JUDGEMENT

(1.) One of the constituencies which went to poll at the time of the last general election to the State Legislative Assembly held on 27 February 1990 was 99-Dhanera Legislative Assembly Constituency of Banaskantha District. The petitioner the respondent no. 1 and nine other candidates had ultimately remained in the fray after the date stipulated for withdrawal of the nominal papers. The respondent no. 1 was declared elected to the Legislative Assembly from the said Constituency with 42 252 votes secured by him followed by the petitioner who was declared to have secured 40 49 votes. The other nine candidates fared very badly and lost their respective deposits. The petitioner has filed this petition praying for a declaration that the election of the respondent no. 1 was void. This the petitioner has done on the ground that the respondent no. 1 his election agent one Mr. R.D.Rajgor and other workers of the party of the respondent no. 1 with the consent of the respondent no. 1 and/or his election agent had indulged in the corrupt practices of appealing to the voters to vote for the respondent no. 1 in the name of the caste of the respondent no. 1 as also in the name of Hindu religion and of exercising undue influence resorting to booth-capturing and bogus voting.

(2.) Admittedly the respondent no. 1 had contested the election on the ticket of the Bhartiya Janata Party (B.J.P.) and the petitioner had contested it on the ticket of the Indian National Congress. The respondent no. 2 and the petitioner are both Hindus but the respondent no. 1 belongs to Anjana Patel caste while the petitioner belongs to Rabari caste. It may be noted that besides the respondent no. 1 the respondent no. 1 and respondent no. 3 are also impleaded as parties to this petition and it is averred that both of them had initially filed nomination papers from the same Constituency but had subsequently withdrawn the same within the prescribed period and had thereafter worked for the success of the respondent no. 1 at the election. It is stated that the respondent no. 2 had actually filed nomination paper on the B.J.P. ticket but he had subsequently withdrawn the same in favour of the respondent no. 1 on the directive of his party. Both these respondents are alleged to have actively helped the respondent no. 1 in Committing corrupt practices to further the prospects of the respondent no. 1 at the election.

(3.) The petitioners case is that the aforesaid Dhanera Constituency covers 165 polling booths or villages and a large number of these villages have a substantial population of Anjana Patel voters and Anjana Patels have a dominant influence at least in these villages. In the petition the petitioner has mentioned names of 43 villages where according to have Anjana Patels have a substantial population. It is alleged that in these 43 villages dominated by Anjana Patel caste people and voters the respondent no. 1 and his election agent as also the respondent no. 1s workers with the consent of the respondent no. 1 and/or his election agent had appealed to the voters to cast their votes in favour of the respondent no. 1 on the basis that he belongs to Anjana Patel caste. It is also alleged that the respondent no. 1 had called two meetings of the Anjana Patel leaders on 9-2-90 and 15-2-90 in a students hostel described as Patel Boarding situated at Dhanera and further that at these meetings the respondent no. 1 the respondent no. 2 (also a member of Anjana Patel caste) and other leaders and people of Anjana Patel caste had exhorted the audiences to see that people voted overwhelmingly in favour of the respondent no. 1 on the ground of his caste and to See that those voters who were almost certain to vote for the Congress candidate were prevented from reaching the polling booths. There is an allegation that the participants of the meetings were also asked to see that candidates and workers belonging to other castes were not permitted to enter the villages dominated by Anjana Patels and to undertake election propaganda in the said villages. According to the petitioner a plan was also hatched at the said meetings to capture the booths and to resort to bogus voting so as to further the prospects of the respondent no. 1 at the election. According to the petitioner the members of the Anjana Patel caste were incited not to vote for the Congress candidate on the ground that the Congress had declined to give ticket to one Patel Joitabhai Nanjibhai (Anjana Patel) even though in the past Congress ticket was issued to the said Joitabhai and even though Anjana Patels had a sizable population in the constituency. The petitioners allegation is that pursuant to the plan hatched at the aforesaid meetings some leaders of the Anjana Patel caste had actually indulged in booth-capturing and bogus voting at 36 villages mentioned in para 11 of the petition. It is also stated that other candidates and their workers were not allowed to enter and work for the said candidates in the aforesaid villages for canvassing support of the voters. The petitioner has alleged that passions were aroused on caste lines to such an extent that the petitioner had found it difficult if not impossible to mobilise suitable persons to act as his polling agents in the villages mentioned in the petition. He has further stated that his polling agents were forcibly driven out of the polling booths at villages Jivana Thervada Thaver Tetoda Jadiya and Dhaka and thereafter bogus voting was resorted to on a large-scale and there was also booth-capturing. The petitioner has gone to the length of saying that the Returning Officer for the Constituency also belonged to Anjana Patel community and he had deliberately appointed more than 105 members of Patel community to act as Presiding Officers at the time of the election presumably to facilitate the respondent no. 1 s plans of booth-capturing and bogus voting. It is stated that the Presiding Officers so appointed on caste lines conspired with the polling agents and other persons working on behalf of the respondent no. 1 on the election day and had connived at the corrupt practice of booth-capturing and bogus voting resorted to by the respondent no. 1 and his election agent. In the petition the petitioner has mentioned some instances of the alleged driving out of his polling agents from the polling booths and of booth-capturing and bogus voting. In this connection it is stated that the respondent no. 3 had actively indulged in booth-capturing and bogus voting at villages Ramsan Bhakhadiyal Ghana Jadiyali and Kotada as they were the villages where he could exert a lot of influence being the ex-Jagirdar of the said villages.