(1.) THIS order disposes of issues No. 6 and 7 framed by this Court on 28.3.2001 in Election Petition No. 4 of 2000 titled Harsh Kumar v. Bhagwan Sahai Rawat and others. These issues are to the following effect :-
(2.) IN order to appreciate the controversy between the parties involving under these issues, the following facts can be noticed :- General Elections to the Haryana Vidhan Sabha 2000 were notified on 10.1.2000. The last date for filing the nomination papers was 3.2.2000. The date of polling was 22.2.2000 and counting of votes took place on 25.2.2000. In this case challenge has been given to the candidature of returned candidate Bhagwan Sahai Rawat by petitioner Harsh Kumar from 56-Hathin Assembly constituency. Respondent No. 1 was declared successful by a margin of 1400 and odd votes. It is alleged by the petitioner that returned candidate started claiming in the constituency in public/corner meetings that he would provide employment to the voters who are unemployed in the constituency in case they give their votes in lieu thereof. He also declared in the constituency that he is in touch with the Government and persuading the Government to issue the necessary advertisements for various categories of posts so that all unemployed voters having different qualifications would be included in Government/Boards/Corporations. He asked unemployed youth to give their bio- data to him so that he could help them in getting the Government jobs. He promised the unemployed youth the services in lieu of their votes and support in the election in question. All these promises were made by respondent No. 1 in the constituency after 7.1.2000. Consequently good response was given by those who were in dire necessity of jobs. According to the petitioner, it is a violation of Mode Code of Conduct. It is so stated in para No. 7 of the election petition. It is also alleged by the petitioner that respondent No. 1 declared in the constituency that he was in touch with the high-ups in the Government. He was successful in his design as a result of which 297 posts of various categories were advertised by the Haryana State Agricultural Marketing Board, 1026 posts were advertised by Haryana Staff Selection Commission and 4600 posts of Constables were advertised. All this has been done at his behest by the Government. He further claimed that he was very close to the Chief Minister and the advertisements, which were made at the behest of respondent No. 1, is in violation of Model Code of Conduct because it had allured the unemployed youth of the constituency. Now it is the policy of the Government to ban the recruitments in the State of Haryana. Resultantly, the alleged promises made by respondent No. 1 were only made with a calculated design to allure the unemployed voters for the success of India National Lok Dal party in the State of Haryana. This is the allegation of the petitioner in the election petition as contained in para No. 8. In para No. 9 with sub- paras (i) to (v) it is alleged by the petitioner that respondent No. 1 has committed the corrupt practice of bribery as defined in Section 123(1)(A)(b) of the Representation of the People Act (hereinafter called 'the Act'). Elaborating the particulars of corrupt practice it is alleged by the petitioner that respondent No. 1 distributed the pamphlets of advertisements through out the constituency during his election campaign/corner meetings to unemployed voters. Further elaborating the petitioner alleged that respondent No. 1 accompanied by his supporters and active workers namely Ram Parshad, Sarpanch of village Bahin, Randhir Singh, Chairman of Hindi Sahitaya Academy, Haryana, Sati Ram, resident of village Bhangur, Net Ram of village Bahin, Sahi Ram, Ex-Sarpanch, Bahin, Jaleb Khan, Sarpanch of village Kot and Tota Ram Jat of Mitrol visited village Mitrol, Tehsil Hodel, Distt. Faridabad on 14.2.2000 at 12.00 noon and they collected voters of the village in the Chopal. About 200 voters of the village collected there and respondent No. 1 distributed pamphlets containing the details regarding advertisements of recruitment made by the Haryana State Agricultural Marketing Board, Irrigation Department, Health Department, Industrial Training and Vocational Education, Haryana and Haryana Police. So much so, respondent No. 1 gave copies of advertisements to Naresh, Yogender Kumar, Mohinder Singh and Jagdish, residents of village Banchari, Tehsil Hodel. Further, the respondent No. 1 asked the educated voters to give their bio-data so that they could be helped in their selection. He made promises to the effect that many other posts were also being advertised shortly by the Government and he would ensure the employment to the educated voters. Some voters including the persons named above were present and they even gave the bio-data to respondent No. 1. Similarly in para No. 9(iii) allegations have been made that on 14.2.2000 at 4.00 p.m. respondent No. 1 with the assistance of his supporters visited village Siha, Tehsil Hodel and distributed the advertisement pamphlets amongst the unemployed educated youth and assured them that in case that cast their votes in his favour, they would be helped in getting the jobs. So much so, their bio-datas were also obtained by the respondent No. 1. Still further, the petitioner alleged in para No. 9(iv) that on 15.2.2000 at 8.00 a.m. respondent No. 1 with his supporters mentioned in the said sub-para visited village Bahin, Tehsil Hodel, District Faridabad and about 200 voters of the village were collected. Same exercise was done amongst the unemployed youth which was done in other village. Also it is alleged in para No. 9(v) that returned candidate visited village Manpur, Tehsil Hodel, Distt. Faridabad on 15.2.2000 at 4.00 p.m. About 200 persons collected at the village Chopal. Pamphlets were distributed and promises were made for the procurement of the jobs to the unemployed youth and their bio-datas were obtained. This act on the part of respondent No. 1 constitutes a bribery as defined in Section 123(1)(A)(b) of the Act. It is further alleged by the petitioner that Daler Singh, respondent No. 3, submitted his nomination papers as nominee of Bahujan Samaj Party having the symbol of elephant. According to the voter list, his age is shown as 24 years and according to the matriculation certificate issued by the Board of School Education Haryana his date of birth is 10.7.1975. Thus Daler Singh was less than 25 years of age when he submitted the nomination papers on 3.2.2000 before the Returning Officer. In the nomination papers Daler Singh gave his age as 25 years one month. He did not submit any other document in support of his age. Thus he was not eligible to contest the election. Further, Daler Singh did not file nomination papers before the Returning Officer within the specified hours and those were not properly scrutinized by the Returning Officer. Still he was allowed to contest the election. He secured 3908 votes. Since the difference between the lost candidate and the returned candidate was 1354, hence the election of the petitioner has been materially prejudiced and the result in favour of respondent No. 1 is supposed to be declared as void as per the provisions of Section 100(1)(a)(d)(i) and (iv) of the Act. Also it was alleged that respondent No. 3 did not take oath in proper manner before the Returning Officer. Respondent No. 3 belongs to village Aurangabad, which is a large village. Villages Tumasra, Gudhrana, Siha and Dakora adjoin this village and the petitioner had a considerable influence in these villages. Respondents No. 1 and 3 have secured 2034 and 2851 votes respectively. Had the Returning Officer not accepted the nomination papers of Daler Singh, the petitioner would have secured the maximum votes which were secured by Daler Singh. The improper acceptance of nomination papers of respondent No. 3 has material affected the election of the petitioner as the difference was hardly of 1354 votes. The petitioner in para No. 13 of the election further alleges that Yudhvir Singh Zaildar, respondent No. 4, filed his nomination papers as a candidate of Republican Party of India. He was allotted the symbol of rising sun. He did not submit his nomination papers properly as required under the law. His nomination papers have been illegally accepted and with the acceptance of his illegal papers the election of the petitioner has been materially prejudiced. Further, respondent No. 4, did not take the statutory oath according to law and rules. Had respondent No. 4 not been allowed to contest the election, the votes which were polled for the benefit of respondent No. 4 would have gone to the petitioner and in this manner the election of respondent No. 1 is bad. 4. It is the grouse of the petitioner that respondent No. 7 Jogender, who stood as an independent candidate, did not take the oath properly as required under the law. He got 4773 votes. Had his nomination papers been rejected, the votes polled in favour of respondent No. 7 would have gone to the petitioner. It is also alleged in para No. 18 of the election petition that Haryana Government headed by Shri Om Parkash Chautala as Chief Minister and President of Indian National Lok Dal decided to increase the old age pension in the State of Haryana from Rs. 100/- to Rs. 200/- per month. The old age pension was being distributed to the old age persons in the State of Haryana or before 7th of every month for the last more than 3 years. The decision for increasing the old age pension was announced on the occasion of the birthday of Ch. Devi Lal at Hissar and it was announced that this decision would be applicable w.e.f. 1.11.1999 because the Haryana State came into existence on 1.11.1966. The old age pension for the months of November and December, 1999 was distributed at the rate of Rs. 100/- per month in spite of the fact that the decision was taken to increase the same from Rs. 100/- to Rs. 200/- per month w.e.f. 1.11.1999. The eligible old age persons/voters were not paid the pension for the month of January, 2000 and it was distributed after 7.2.2000 and before 21.2.2000 at the rate of Rs. 200/- along with the arrears for the month of November and December, 1999. The Tehsildar along with his 2-3 officials, Kanungo and Patwari of the village visited the villages of 56- Hathin Assembly Constituency w.e.f. 7.2.2000 to 21.2.2000 for distributing the pension and in most of the villages respondent No. 1 along with his active supporters was also seen claiming that the pension is being paid at his instance and in lieu thereof he was asking the voters/pensioners to vote for him. In this way he was succeeded in getting sufficient number of votes. The decision of the Government for the enhancement of old age pension at the nick of the election time tantamounts to bribery. With these broad allegations the petitioner prayed that the election of respondent No. 1 be declared void.
(3.) NOTICE of the election petition was given to the respondents. Written statement was filed by respondent No. 1 on 8.9.2000. Separate written statement was also filed on behalf of respondent No. 4. Similarly respondents No. 5 and 7 also filed written statements separately. All the respondents denied the allegations of the election petition. A preliminary objection was taken by respondent No. 1 in the written statement that since the election petitioner has levelled allegations of commission of corrupt practice against the answering respondent, therefore, the affidavit filed in support of the election petition was not valid. Respondent No. 1 also took the objection that the election petition lacks in material facts and it does not disclose any cause of action. It lacks in full particulars and is bad for non-joinder of necessary parties. On merits, each and every averment made by the election petitioner was denied. Other respondents also denied the allegations and prayed for the dismissal of the election petition.