Election Petition No. 18 of 2007 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Election Petition No. 18 of 2007 Date of decision : 19.4.2010 Gura Singh ....Petitioner Versus Ajaib Singh Bhatti ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. J.S.Puri, Advocate with Mr. Sumit Puri, Advocate for the petitioner. Mr. S.K.Garg Narwana, Advocate with Mr. Vishal Garg, Advocate for the respondent S. D. ANAND, J. 1. Pursuant to the issuance of a notification dated 18.1.2007 by the Election Commission of India ( hereinafter referred to as “the Commission”), elections were announced for electing the representatives to the Punjab Legislative Assembly. Petitioner herein, a nominee of the Shiromani Akali Dal, contested the election from the Nathana Assembly Constituency and ended up as the first runners up, loosing at the hustings to the respondent, a candidate who entered the fray as a nominee of the Indian National Congress. The petitioner polled 52207 votes; while the respondent obtained 58857 votes. Others performed poorly and lost their security deposits. 2. The petitioner herein has applied for the invalidation of Election Petition No. 18 of 2007 -2- ***** the result on an averment that the respondent had committed gross corrupt practices in terms of the provisions of Section 123 of the Representation of People Act, 1951 (hereinafter referred to as “the Act”). The petitioner cited the following clarificatory instances which, as per him, affected the election result and which, in turn, amounted to corrupt practices which (corrupt practices) would justify the invalidation of the impugned election. 3. The Dera Sacha Sauda, “a religion/community established about 50 years” ago and presently having its head office at Sirsa, has a following of over 20 lacs voters in the State of Punjab. The Dera Sacha Sauda has predominance essentially in the Malwa belt (consisting of Districts of Patiala, Sangrur, Bathinda, Mansa, Faridkot, Ferozepur, Roopnagar etc.) and its followers are uniformly available in all those districts. Each constituency “has approximately 25,000 followers”. Even in the Nathana assembly constituency, the Dera Sacha Sauda has over 25,000 followers who (followers) are described as 'Premis'. A congregation attended by them is described as 'Sadh Sangat'. The Dera Sacha Sauda head is addressed as 'Pita jee' and the Premis “act according to his dictums and sermons.” This religion i.e. Dera Sacha Sauda has its own “religious and cultural system”, besides having its white coloured flag and own token/currency system which enables the followers to make purchases at the Dera Sacha Sauda. 'Sach Kahun', a daily published by the Dera Sacha Sauda, has a wide circulation amongst Election Petition No. 18 of 2007 -3- ***** its followers. The Dera Sacha Sauda has local congregation venues in the State of Punjab including a big dera in the area of village Salabatpura which, though a part of Rampura Phul constituency, is at a distance of about 15 Kilometers from the outer boundary of Nathana constituency. The religion aforementioned is distinct from the other religions (i.e. Hinduism, Sikhism, Islam, Christian, Parsi religion etc.) inasmuch as the former does not permit intermingling of the followers with other religions and the 'Premis' function within their own water-tight compartment; while things are otherwise in the other religions. 4. The Dera Sacha Sauda, “ with a motive to help the Indian National Congress Party in the general elections held in the State of Punjab in February, 2007” decided to direct the Premis to cast their votes in favour of the Congress. For achievement of that purpose, the Dera constituted “a seven member political wing to supervise the said decision and to take further decisions in this matter.” That wing, which was headed by one Ram Singh, organised various teams which were set in motion and headed towards various constituencies in the Malwa belt. In the Nathana constituency, the committee “actively and speedily organised its active workers to ask the Premis to vote for the respondent.” The propaganda was conducted on individual to individual basis, besides addressing rallies, giving news items and advertisements etc. The active workers of the Dera sought votes from the Premis “with active Election Petition No. 18 of 2007 -4- ***** consent of respondent Sh. Ajaib Singh i.e. respondent and his agents.” The respondent himself also asked the Premis “to vote for him and in pursuance of the decision taken by the dera itself and declared to be so by the political wing of the dera.” 5. The political wing of the dera also published “a specific schedule of the plan of action of which such declaration is to be addressed in various constituencies for appealing to their followers to cast their votes in favour of a specific party namely Congress (I).” For the purpose of Nathana constituency, the announced schedule included the holding of a meeting at Dera Salabatpura on 4.2.2007. The assembly, which was presided over by Ram Singh aforementioned, was largely attended by Premis. Ram Singh also addressed the congregation “and made them aware of the decision taken to support and cast vote in favour of the respondent.” Respondent-Ajaib Singh was also present in that meeting and he, besides addressing the Premis and soliciting their votes and support “in pursuance of the decision taken in this regard by their religious head and the political wing for Punjab,” “consented to the actions and appeals made by the Chairman of the political wing of the dera.” 6. Besides the above attribution, the respondent also appealed “to Teja Singh son of Parkash Singh, resident of village : Kalyan Sukha, Tehsil and District Bathinda, Baldev Singh son of Natha Singh, resident of Nathpura, Tehsil and District Bhatinda and Jasbir Singh son of Sh. Harchand Singh, village Kalyan Sukha, Election Petition No. 18 of 2007 -5- ***** Tehsil and District Bhatinda” to vote for him in the name of religion i.e. the Dera Sacha Sauda. 7. Apart from the congregation at Salabatpura, a big function was held on 4.2.2007 at Rajgarh in Patiala which was attended by the then Chief Minister and a number of Ministers in that Government. There also, Ram Singh aforementioned addressed the gathering and appealed to the 'Premis' to vote for congress in their respective constituencies “in pursuance of the decision as aforesaid.” 8. The respondent and the other members of political wing too, appealed to the voters to vote in favour of the respondent “on the ground of religion, race, caste and community.” The members of the political wing of the Dera also made a similar appeal “with the consent of the respondent”. 9. Besides the above quoted instances, the Dera Sacha Sauda inserted the various news items and advertisements in different newspapers, the detail whereof are as under:- “1. On 4.2.2007, a declaration of decision with schedule was published in Daily Sach Kahun. Declaration with respect of Nathana constituency was to be held at village Salabatpura, District Bhatinda. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 2. On 8.2.2007, news item appeared in Punjabi Tribune stating that Premis of Sacha Sauda have Election Petition No. 18 of 2007 -6- ***** taken procession in favour of Congress (I) specially in Mandi Basti etc. of Nathana Constituency. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 3. On 11.2.2007, a big news item appearing in Punjabi Tribune stating that a new wave has arisen in favour of Congress due to support of Premis. Premis went to Chucho Mandi, Burj Kahan Singh Wala and Tungwali for getting votes from house to house. The respondent also gave confidence to voters in this regard. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 4. On 13.2.2007, an advertisement was published in Sach Kahun wherein Ram Singh, Chairman of the Political Wing of Dera Sacha Sauda announced that Sadh Sangat should be aware of false advertisements and that all sadh sangat is requested to vote for congress only. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 5. On 11.2.2007, a big advertisement was published in Punjabi Tribune whereby an appeal was made by the political wing of dera sacha sauda (Sirsa) that it Election Petition No. 18 of 2007 -7- ***** has been decided that all the followers/premis should cast their votes to the congress party. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 6. On 11.2.2007, a news item appeared in daily sach kahun that the respondent has been weighed with samosa, bananas, sugar, coins and ladoos. It is further mentioned that respondent said that he left his post of A.D.C. For the people and then thanks Premis for their support. On 11.2.2007 another advertisement appeared in Sach Kahun issued by the Congress to thanks Premis. This constitutes corrupt practice as defined in section 123 (2), (3) 3- A) of the R.P.Act. 7. On 12.2.2007, an advertisement appeared in Sach Kahun issued by Political wing for Punjab of Dera Sacha Sauda (Sirsa) appealing to the Premis that the decision take to cast votes in favour of congress is definite and therefore appealed the Premis to cast their voges for the congress. Oin the same day, another advertisement appeared in Spokesman issued by political wing of Dera Sacha Sauda appealing to Premis to vote for Congress. In yet another advertisement in Jagbai (Bathinda and Election Petition No. 18 of 2007 -8- ***** Mansa) issued by political wing on the same day, appealing the Premis to vote for Congress. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act. 8. On 13.2.2007, i.e. date of voting, a new item appeared in Sach Kahun that Sat Premis have said that they are determined on voting for Congress and in another advertisement, on the same day, by Ram Singh, under his signatures, calling and appealing the Premis to vote for Congress. This constitutes corrupt practice as defined in section 123 (2), (3) & (3-A) of the R.P.Act.” 10. The averment of the petitioner herein is that the insertion of the news items//advertisements on behalf of the Dera Sacha Sauda constituted corrupt practices in terms of the provisions of the Act. 11. Two public servants(Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda) also asked a number of voters of that constituency to vote for the respondent. They did it at the behest of and “with active consent of the respondent.” Those two public servants would call the voters to various places including Bibiwala Guest House at village Bibiwala and convince them to cast their votes in favour of respondent. On 25.1.2007, Manjit Singh Bakshi aforementioned called three voters Election Petition No. 18 of 2007 -9- ***** (Lachman Singh son of Sh. Jagar Singh, resident of village, Gobindpura, Tehsil and District Bhatinda, Labh Singh son of Sh. Buta Singh, resident of village Sema, Tehsil and District Bhatinda and Rajinder Singh son of Baldev Singh, resident of Poohli, Tehsil and District Bhatinda) and asked them to vote for the respondent. Besides them, one Bhag Singh (then posted as an Assistant Sub Inspector, at Nathana) also asked the residents of Nathana, “with active consent and connivance of the respondent”, to vote for respondent “ who is the friend.” ASI Bhag Singh “pressurised Sh. Gursewak Singh son of Sh. Gurdev Singh, resident of village: Dhalawan, Tehsil and District Bathinda and many other persons including Gurdev Singh, Ex. Sarpanch, resident of village :Giddar, Tehsil and District Bathinda to vote for the respondent. In this regard, the petitioner made a complaint to the Returning Officer, Nathana and thereafter, action was taken in this regard by the Election Commission.” 12. The petitioner herein, on the basis of above allegations, applied to the Court to declare the election of respondent-Ajaib Singh Bhatti to the Punjab Assembly from the reserved 112-Nathana Vidhan Sabha Constituency, to be null and void. 13. The respondent, besides raising certain preliminary objections, denied the averments on the merits thereof. He denied that he had himself indulged in the averred corrupt practices. He also denied that the Dera Sacha Sauda is a religion. He averred, in Election Petition No. 18 of 2007 -10- ***** the context, that the Dera Sacha Sauda “is a spiritual and social organization” which engages itself in organising “spiritual satsangs and performs various noble acts, such as, organizing blood donation camps and drug and alcohol eradication programmes etc.” It is for such acts that the name of the Dera Sacha Sauda is entered in the Guinness Book of World Records and Limca Book of Records. While denying that the services of the averred public servants were utilised for extracting votes, the respondent proceeded to aver that the Dera Sacha Sauda, on the other hand, categorically announced to the Premis that it had no political ideology and that its followers could vote of their free volition and conscience and that Dera had further announced that no political party was to be supported by the Premis. 14. In the course of the re-joinder, the averments made in the course of the petition were reiterated. 15. The trial proceeded on the following issues:- “1. Whether the respondent is guilty of having committed corrupt practices in terms of Section 123 of the Representation of People Act, as alleged in para Nos.5 and 6 of the petition?OPP 2. Whether the respondent is guilty of having committed corrupt practices in terms of Section 123 (7) of the Representation of People Act, as alleged in para No.7 of the petition?OPP Election Petition No. 18 of 2007 -11- ***** 3. Whether the result of the election had been materially affected by the corrupt practices which are subject of issue Nos. and 2 ?OPP 4. Whether the election petition is liable to be dismissed for non-compliance with the provisions of Section 81(3) of the Representation of People Act, 1951? OPR 5. Whether the verification of the averments in the election petition is defective? If so, to what effect?OPR 6. Relief”. The following additional issues were framed on 27.8.2008:- i) Whether election petition lacks material facts and material particulars, if so, its effect? OPR ii) Whether the election petition discloses no cause of action, if so, its effect? OPR iii) Whether the para Nos.3,4,5,6 and 6(1) (i) to (vii) and 7 of the Election Petition deserve to be struck out from the Election Petition under Order 6 Rule 16 CPC as mentioned in the preliminary objections of the written statement? OPR 16. In the evidence of affirmative character, the petitioner herein examined as many as 14 witnesses. Election Petition No. 18 of 2007 -12- ***** 17. The petitioner entered the witness box, as his own witness, as PW-1. 18. PW-2 Gurcharan Singh, Election Kanungo, office of the District Election Officer, Bathinda, made a record-based statement to the effect that two complaints dated 20.1.2007 and 25.1.2007, attested copies whereof were proved by him as Ex. PW2/A and Ex. PW2/B, had been received. Qua the former complaint, information had been received from the SSP, Bhatinda that the official under reference had been transferred from the present place of posting and he was in the process of being relieved. (This complaint purports to relate to ASI Bhag Singh and the only averment made in the course thereof was that he is a personal friend of respondent Ajaib Singh Bhatti and that he propagates through out that he would ensure the victory of the Congress candidate and that he used to terrorise workers of the Shiromani Akali Dal. Qua the other complaint, he testified that it was ordered to be 'filed' under the orders of the Returning Officer. He also placed on record Ex. PW2/D, a photocopy of the letter addressed by the Additional Deputy Commissioner (Development)-cum-Returning Officer, 112 Nathana Vidhan Sabha Constituency, Bhatinda to the District Election Officer, Bhatinda. Vide that communication, the Returning Officer recommended the 'filing' of the complaint which contained allegations against Manjit Singh Bakshi, DPRO and Waheguru Pal Singh, APRO. Election Petition No. 18 of 2007 -13- ***** 19. PW-3 Teja Singh, who claimed to be a Premi, testified that Ram Singh aforementioned had addressed the Slabatpura congregation held on 4.2.2007 and had announced the factum of there being “an agreement between the Dera Sacha Sauda and the Congress Party and that, in terms thereof, not only that the each follower of the Dera Sacha Sauda should vote for Congress but he should also persuade five other persons per head to vote for Congress.” 20. PW-4 Baldev Singh son of Natha Singh, also claiming to be a Premi, reiterated the statement made by PW-3 Teja Singh. 21. PW-5-Parkash Singh. Chief Editor and Administrator of “Sach Kahoon”, proved original issues dated 4.2.2007, 11.2.2007, 12.2.2007 and 13.2.2007 of Sach Kahoon and testified that the first indicated news item i.e. news item appearing in issue dated 4.2.2007 had been published on its receipt from Ashok Verma, its Bhatinda- based Bureau Chief. It is in his statement that news item Ex. PW5/3 had been published on its receipt from Gurjit Singh, Bucho Mandi- based correspondent of the newspaper. He further testified that advertisement Ex. PW5/5 had been published in the issue dated 12.2.2007 at the instance of one Surjit Singh resident of Chab Bela Singh Wala and that Ex. PW5/6 had been published in the issue dated 13.2.2007 on its receipt from Gurjit Singh, Bucho Mandi-based correspondent of the newspaper. 22. PW-6 Som Nath Bajaj, an official posted in HRD Election Petition No. 18 of 2007 -14- ***** Department of the Punjabi Tribune, proved news items Ex. PW6/1 and Ex. PW6/2 and testified that these news items had been published on the basis of information supplied by Bhagwan Dass Garg, a stinger based at Bucho Mandi. Qua the advertisement aforementioned, it was testifed by him to have been booked through Elevations Advertising Private Limited, Sector 22-C, Chandigarh. He also testified that the name of the subscriber is noticed therein as 'Dera Sacha Sauda'. 23. PW-7- H.S.Bhatti son of Shri Kirpal Singh, an official of the Rojana Spokesman Newspaper claiming circulation of about 70000, proved an advertisement Ex. PW7/1 issued through Elevation Advertising Private Limited at the instance of Political Wing, Punjab, Dera Sacha Sauda. 24. PW-8 M.M.Ali son of M.N.Ali, Senior Executive (HR), in the employment of Indian Express, brought along the original issue dated 6.4.2007 of the newspaper and proved that news item Ex. PW8/1 had been published in that newspaper on the basis of information supplied by their reporter Mr. Vikas Kahol. 25. PW-9 Rakesh Jain son of Shri Kamal Jain, Billing Incharge, Jagbani, (Punjab Kesari Group), proved news item Ex. PW9/1 which had been published on the basis of a communication Ex.PW9/2 received from Verma News Agency, Bathinda. 26. PW-10 Jasbir Singh son of Shri Har Chand Singh resident of village Kalyan Sukha, District Bathinda, claimed to have Election Petition No. 18 of 2007 -15- ***** attended the Salabatpura congregation and testified that Ram Singh and one Bhatti delivered a lecture over there and appealed to the gathering to vote for the Congress candidates. It is in his testimony that they also told the gathering to garner 3-4 other votes per head as well. It is also in his testimony that after the address was over, the respondent told him that “pitaji had ordered the followers to vote for the congress party.” He clarified that he (and also Teja Singh and were Baldev Singh, who were standing by his side and examined as PW-3 and PW-4 respectively) did not feel like voting according to the request “but the appeal was to that effect only.” 27. PW-11 Gurdev Singh son of Sucha Singh, resident of village Giddar, District Bhatinda, a former Sarpanch of the village Giddar, testified that SI Bhag Singh (then posted at Police Station, Nathana) would come to the village and would tell people to refrain from voting for the Akali candidate and he also required them to vote for the congress candidate. He, however, clarified that he voted as per his own discretion. 28. PW-12 Rajinder Singh son of Shri Kaur Singh, resident of village Mehma Sarja, District Bathinda, also claimed to have attended the Salabatpura congregation held on 4.2.2007 and testified that Ram Singh announced to the audience that “if we wanted to attain salvation, we should be voting for the congress party or else we would be treated as sinners.” It is also in his testimony that Ram Singh “further exhorted the audience that each Premi Election Petition No. 18 of 2007 -16- ***** should persuade atleast 4-5 persons to do likewise” and that “voting for the congress party candidates would be an act of 'goodness'.” 29. PW-13 Sukhraj Singh son of Gubax Singh resident of village Mehma Sarja, District Bathinda, who claimed to be a follower of Sikh faith testified that there is no Dera in and around the area of which Nathana assembly constituency comprises. He was not subjected to any cross examination. 30. PW-14 Rakesh Kumar, Naib Tehsildar, Samana, testified that the congress party held a Rally in the area of village Rajgarh (Samana) on 4.2.2007 and that the venue of the Rally was under the occupation of Dera Sacha Sauda. He placed on record the original CD Ex. PW14/A of that function and also translations thereof in Punjabi and English which were exhibited Ex. PW14/B and Ex. PW14/C. 31. PW-15 Gurdeep Singh son of Baldev Singh, resident of village Kote Natha Singh wala, Tehsil and District Bathinda, who claimed to be a follower of Dera Sacha Sauda sect, testified that he subscribes to Rozana Ajit newspaper and to another newspaper which is published by Dera Sacha Sauda and that the contents of those newspapers affected “my thought process in the context of pattern of voting as Babaji made an appeal therein to vote for congress party as there had been a settlement between Dera Sacha Sauda and Congress Party.” 32. The remaining witnesses, cited in the listed of witnesses, Election Petition No. 18 of 2007 -17- ***** were given up and the petitioner's evidence was closed by the learned counsel appearing on behalf of the petitioner on 21.8.2009. 33. RW-1 Gurdev Singh son of Prem Singh, resident of village Abloo, a follower of Sikh religion, testified that he watched Sant Gurmit Singh delivering discourse on the Television vide which he informed the followers of the Dera Sacha Sauda that the Dera had no political ideology and that the followers could vote as per their conscience. 34. RW-2 Saminder Singh son of Shri Punjab Singh, resident of village Ganga, also made a similar statement. 35. RW-3 Jaspal Singh son of Isher Singh, resident of village Abloo, besides reiterating the above televised discourse by the Dera Sacha Sauda head, also testified that the Dera had issued a press statement about two days prior to the holding of elections to the effect that the followers could vote as per their own conscience as it (Dera) had no political ideology. 36. RW-4 Manjit Singh Bakshison of Tirth Dass Bakshi, D.P.R.O., Sangrur (posted at Bathinda during the relevant period) and RW-5 Wahe Guru Pal Singh son of Onkar Singh, D.P.R.O., Bathinda (posted as APRO, Bathinda during the month of February, 2007 when elections to the Punjab assembly were held) denied the averments made by the petitioner that they had canvassed votes for the respondent. 37. RW-6 Manjinder Singh son of harbaksh Singh, resident of Election Petition No. 18 of 2007 -18- ***** village Mehmapur Bhagwana, testified that Sant Gurmit Ram Rahim Singh is the head of the Dera Sacha Sauda, who had appealed to his followers (by issuance of a press note in Daily Ajit newspaper) that they could vote as per their choice and that Dera has no political affiliation. 38. RW-7 Constable Sikender Singh (posted in the office of SSP, Bathinda) proved Ex. RW7/,1 an attested photocopy of the enquiry report in the context of the complaint against ASI Bhag Singh during the period elections to the Punjab assembly were held