JAI NARAIN Vs. KARTAR DEVI

JUDGEMENT

(1.) IN this election petition, petitioner Jai Narain has challenged the election of respondent No. 1 Kartar Devi who had been elected from 32 Kalanaur Assembly Constituency of Haryana, for which the polling took place on April 27,1996. The grounds for challenge are the alleged irregularities at the time of counting of votes, illegal acceptance of the invalid votes and rejection of valid votes etc. to which detailed reference will be made hereinafter. Apart from the petitioner and respondent No. 1, there were 19 other candidates (respondents No. 2 to 20), who had also contested the election from the aforesaid Assembly Constituency. Respondent No. 21 Shri Suraj Bban, a Haryana Civil Service Officer, who was City Magistrate of Rohtak, had been appointed as the Returning Officer. The petitioner was the official candidate of B. J. P. to whom symbol of 'lotus' had been allotted. Respondent No. 1 was the official nominee of the lndian National Congress and had been allotted the symbol of 'open hand'. Respondent o. 19 was the official nominee of Samata Party having 'mashal' as his symbol and respondent No. 14, Shamsher Singh, an independent candidate, was allotted the symbol of 'glass jar. The positioning of the name of the petitioner and respondent No. 14 in the ballot paper was in the same line against each other. The dummy ballot paper which was made available to the voters has been attached as Annexure P. 1, with the election petition. According to the pleadings, there were 139 polling booths. 61143 votes were polled which included 69 postal ballots. Kartar Devi, respondent No. 1, had polled 16733 votes whereas petitioner Jai Narain had polled 15818 votes. The total rejected votes were 2364 apart from 11 postal ballots, which were rejected. Difference of votes between the petitioner and the returned candidate (respondent No. 1) was of 915 votes.

(2.) IT has been alleged in the petition that respondent No. 1 had earlier also won in the previous Haryana Legislative Assembly election in 1991 as a candidate of the Indian National Congress. Indian National Congress party had returned to power in the Haryana Legislative Assembly election in 1991 and had formed the Government under the Chief Ministership of Ch. Bhajan Lal and respondent No. 1 was made a Minister of Cabinet rank and had been allocated the portfolio of Excise and Taxation for the years 1993-94 and when the present elections took place, respondent No. 1 was the Health Minister in the State of Haryana and was, therefore, enjoying a good amount of clout with the bureaucracy and the ministerial staff in the State of Haryana. It has further been stated that respondent No. 1 belongs to Scheduled Caste category, i. e. , 'chamar'. Shri Ishar Singh, who was the Political Secretary of respondent No. 1 while she was the Health Minister, had been appointed by her as her election agent in the election in question and was also her counting agent. The Returning Officer vide order dated April 30,1996, had detailed officers and officials mostly of Excise and Taxation Department and Industries Department on election duty for purpose of counting the votes of 32 Kalanaur Assembly constituency. It is further alleged that respondent No. 1 knowingly and by design got the counting assistants appointed mostly from the Excise and Taxation Department and also from the Industries' Department mainly for the reason that she had been Excise and Taxation Minister and further also that her brother Ashok Kumar was serving in the District Industries Centre, Rohtak. It is further alleged that a good number of counting assistants belonging to her caste were got detailed to count the votes of the Assembly Constituency in question, The further facts mentioned in the petition are that the counting of votes started at 8 AM on May 8, 1996, at Vishwakarma Model High School, Jhajjar Road, Rohtak. There were seven tables placed in a row from table No. 1 to table No. 7 in-seriatim for purpose of counting of votes. Opposite thereto, there were tables for counting of the votes of the Rohtak parliamentary Constituency. The tables were put in a wire-mesh enclosure. The distance of the counting tables from the wiremesh was about 1-1/2 ft. The first bench placed outside the wiremesh for the counting agents was at a distance of about 1-1/2 ft. from the first bench and the third bench was at the same distance from the second bench. The width of each bench was about 1 ft. There were, 21 counting agents for each counting table because each of the candidate had appointed counting agents one each for each of the table. The Returning Officer had allowed the police to enter within the wiremesh enclosure. According to the petitioner, this was allowed by the Returning Officer to create awe and fear rather than to maintain law and order and discipline in the matter of counting. The counting agents sitting on the third bench were not able to see the seal mark on the ballot papers properly because of the distance and also because of the obstruction put by first and 2nd row of counting agents sitting on the first and second bench. The position of the counting agents sitting on the second, row was not any better. There was continuous commotion and disturbance amongst the counting agents in order to watch the interest of their respective candidates. The police was not allowing the counting agent stand on the benches and, the counting agents were not able to see the seal marks while sitting on the benches. The result of all this was that the counting agents were not able to keep the necessary vigil over the counting staff and the counting process in the matter of counting of votes. The petitioner has given the names of each of his counting agents who were appointed as such for each of the seven counting tables. It is further stated that the petitioner was himself also present in the counting hall except for short periods when he had to go outside. The further allegation is that respondent No. 1, in connivance with the Returning Officer, got a large number of counting staff posted on table No. 1 to table No. 7, who belong to her caste. This was with a view to obtain undue advantage at the time of counting because of the Caste sympathy. The names of the counting staff belonging to the caste of respondent No. 1 who were posted at table No. 1 to 3 have been mentioned. It is further mentioned that on table No. 4, one Suraj Kumar, Clerk of Deputy Registrar, Co-operative Societies, Rohtak, was posted as counting agent who is a relation and friend of Shri Ishar Singh, election agent of respondent No. 1 One Madan Lal who was also one of the counting staff on table No. 4 was the cook of respondent No. 1 for a long time and thereafter respondent No. 1 got him employed as a peon. Since the petitioner did not know either the caste of the person posted on various table or relationship of Ashok Kumar with respondent No. 1 before or at the time of counting, therefore, no grievance was made regarding their appointments. These persons who had been appointed as the counting staff played their part in helping respondent No. 1 in counting. The details of irregularities allegedly committed at the time of counting have been given in paragraphs 10-A and 11 (a), (b) and (c ). Since the entire case asking for recount revolves around these pleadings, it will be apposite to reproduce the same : xx xx xx (Paragraphs omitted - Editor)

(3.) AS per the petition, an application was made by the petitioner to the Returning Officer at 2. 55 PM on May 9, 1996, asking recount but the application was oraliy rejected. This was in the presence of respondent No. 1 The Returning Officer did not pass any order in the presence of the petitioner. The copy of the application which is in vernacular has been appended as Annexure P-4. The application when translated into English reads as urder : "from Jai Narain Khundiya, BJP candidate, Kalanaur Legislative Assembly, (Reserve) Haryana. 9. 5. 96 To The Returning Officer, 32 Kalanaur, Legislative Assembly Area. Sir, It is submitted that today 9. 5. 96 I am B. J. P. candidate of the aforesaid Assembly Constituency. At the time of counting, proper decision was not taken while cancelling ballot papers. While making bundles of the ballot papers, the real result of counting is being changed by keeping the votes polled in favour or Congress (I) above the votes polled in my favour. It is worth mentioning that Congress (I) candidate is Minister of Haryana Government. Therefore, by putting pressure on the Government employees, the process of counting was started wrongly. I demand recount of votes. Recount may please be ordered to save democracy. Applicant (Jai Narain Khundiya) candidate 32 - Kalanaur Legislative Assembly Constituency. Copy to: Chief Election Officer, Chandigarh. Chief Election Commissioner, New Delhi. " Separate written-statements have been filed - one by respondent No. 1, another by respondent No. 5, third by respondent No. 6, fourth by respondent No. 10, fifth by respondent No. 11, sixth by respondent No. 18 and the seventh by respondents No. 5, 6, 10, 11 and 18. We are here concerned with the written statement filed by respondent No. 1 only, to which reference was made at the time of arguments. In the preliminary objections in the written-statement filed by respondent No. 1, it has been averred as under: