AEi HjGH COURT OF CHHATTiSGARH: BILASPUR S.B. HON'BLE SHRI VSJAY KUMAR SHRiVASTAVA. J CIVILREViSiON N0,36^006 PET1TIONER: Manoj Slngh Thakur, S/o. Bairam Singh Thakur, aged about 29 years, r/o. Santoshi Chowk, Kushalpur, Raipur, Dist. Raipur (CG). Versus RESPONDENTS 1- Jr' kl^ 8. 8. Ramesh Singh Thakur, S/o Late Manrakhan Singh Thakur, aged 45 years, R/o Vaman Rao Lakhe The Ward, Adarshnagar, Kushaipur, Distt. Raipur (CG) Coilector/District Election Officer, Raipur, Dlstt.Raipur (CG) Anand Ram Sahu, S/o.Ramdeen Sahu, aged 42 years, R/o Sahupara, Kushaipur, Distt.Raipur (CG) Jainarayan Jalkshatri, S/o. Tiharu Ram Jaikshatri, aged 36 ysars, R/o above Kho-Kho Pond, Kushaipur, Distt.Raipur (CG) IViukesh Sharma, S/o. Uday Ram Sharma, aged 32 years, R/o. Indira Chowk, Kushalpur, Distt.Rlapur Munna Thakur, S/o. Shri Guiab Singh Thakur, aged 36 years, R/o. • Near Durga Mandir, Hanuman Chowk, Kushalpur, Rlapur (CG) Dinssh Agrawal, S/o. Janak Agrawal, aged 36 years, R/o. indira Chowk, Raipur (CG) Rajendra Yadav S/o.Jagdish Yadav, aged 32 years, R/o.Danteshwari Nagar, Kushalpur, DJstt.Raipur (CG) PRESENT: Shri Rajeev Shrivastava wlth Shri Indrasen Sahu, Counsei for the petitioner. Shri B.P. Sharma, counse! for respondent No.1. Shri P.K. Verma, Sr. Advocate with Shri Raghawendra Verma, counsel for respondent No2 Shri Sandeep Dubey, counsel for respondents No. 3 and 7. Shri A.P. Sharma, counsei for respondent No.6< None for other respondents. (Passedon^12/2COS) This revision under Sectlon 441-F of the Chhattlsgarh Municipai Corporatlon Act, 195S (henceforth, Tne Acf) is directed against the judgment dated 14/02/2006 passed by District Judge, Raipur, In Eiection Petition No. S/2005, whereby learned District Judge dismlssed the eiectlon petjtion fiied under Section 441 of the Act, by the petitioner for declaratlon that the eiection of th©returned candidate - respondent No.1 from Vaman Rao Lakhe Nagar Ward No.64 of Raipur, (henceforth, "the Ward") Is void. 2) NotificatJon for electlon of Counciior and Mayor of Raipur Munscipal Corporation was issued by Dlstrict Eiection Officer, Raipur, along wlth various of the eiectlons and during which those stages were scheduied i.e., 22/11/2004 to 29/11/2004 for fillng of nominatjons, 30/11/2004for scrutiny of nominatlon papers, 01/12/2004 to 02/12/2004 for wlthdrawal of nomination, 17/12/2004 for polling, 19/12/2004, for counting of votes and 24/12/2004 for declaratlon of the resuits ofthe electlons in Chh^ttisgaij^ 3) Petitioner, respondent No.1 and respondents No. 3 to 8 contested the eiection for the seat of Councilor of the Ward. Petitioner v/as candidate of Indian National Congress (henceforth, "Congress") whereas respondent No.1 was nominated by Bharatiya Janata Party (henceforth, "BJP"). After comptetion of etection, results were dedared and accordingly respondent No.1 was declared as retumed candidate for the Ward. 4) Petitioner, who lost the election, fiied election petition under Section 441 of the Act, for declaration of ©(ectionof respondent No.1, who was a returned candidate from the Ward to be void, inter afia on the grounds ttiat respondent No.1 committed corrupt practice, prior to the date of polling. petitioner distributed voters' siip containing his photograph and election symbol amongst the voters, misused Government machinery for getting forged votings in various bootiis and erroneous counting of votes, took heip of his relative Surendra Singh Thakur, who was appointed as Polling Officer on duty at PolSing Booth No.470(A),the ruting government helped him by constructing road, toilet and drainage in the Ward during operation of "Code of Conducf and the canvassing materiaJ distributed amongst the voters by respondent No.1 does not contain the name of printer. publisher and number of copies. 5) Respondent No.1 speciffcally denied ali the ailegations made against him by the petitioner. However, he pleaded that purporting voters' slip having two parts were used, canvassing materiais used by him were got printed in accordance with the instructions of Eiection Commission which bears name and address of printer, publisher and number of copies. Respondent No.2, who is an Election Officer has stated in his reply that election was conducted in fair and independent manner, no incident offorged voting took giace and counting was done in 4 ^ presence of contestants or thelr agents, even no application for recounting has been recelved. Respondents No. 3 and 8 have denied the allegations made by the petitioner. Respondent No. 4 remained ex parte and did not file his written statement. Respondents No. 5 and 6 partiaiiy conceded the aliegations made by the petltjoner whereas respondent No.7 In his repiy pieaded that pstitioner has to prove his case. S) Petitloner and respondent No. 1 in support of their cases adduced ora! and documentary evidence. Learned lower Court after affording proper opportunJty of hearing and after appreciation of the evidence heid that petitioner faiied to prove aiiegations regarding corrupt practice adopted by respondent No.1, therefore, vlde impugned judgment dismissed the eiection petition. 7) Sectlon 441-B of the Act, which reads as below, erivisages grounds for dec!aring eiection to be void: st441 - B .Grounds for deciaring Qlections or [nominations] to be void. - (1) Subject to the provishns of sub-sectlon (2) ifihe Courtis ofthe opinion - (a) on the of his electlon or [nomlnation] a returned candfdate was not quallfl&d or was dssquallfiod, to be chosen as a [Mayorors Councijfor: or (b) that any corrupi practice has been committed by a retumed candidate or his agent or by &ny other person with the consent of a i^turned candidaie or his agent; or (c) that any nomination paper hss been Impropertyrejected; or (d) that t'he result of the electson or [nominatbn], sn so far as it concerns] a retumed candidate has been mateiially affected- (1) by the improper acceptance of &ny nomlnation; qr ^ (ii) by a com/pt practice having 6een committed in the intefest of the returned cancSdate by Q person oiher ffian ffiat candkSate or Hs agent or a perswi ac^ wittj ffie consent of such candidate or agent; or (iii) by the improper acceptance or refusal of any vote or recepffon ofany vofe which is vdd; or (iv) by ffw non-compliance wittt the f^ovisions of ttjis Act or of any ruies or orders mode thereundw save ffie rules fi'amed uncfer fsecfion 14] in 50 far as ffiey re/afe fo preparaffon and rewsiwi oflistofvoiers; (2} if in the opiniwi of the Court a fetumedl candkSate has been gwlty by an agent of any corrupt practsce, but the Court 'fs satfsfied -- (a) ffsat no such corrupi pracffce was commiited at the efection or [nominattonjby the candichte, and every such corrupt pracffce WQS commiited contrary to the instructtons, snd without the consent of the candklaie; (b) that the candidaie took all feasonable means forprewenffng the comnwssfon of corrupt pracffces at the etection or fnomlnattonS; and (c) ffiaf sn all oV^er respects ffTe election or fnominaik>n] was free from any com/pf practice on the part of the candidQte or any ofhis sgents; then, ff?e Court may decide ffjat ffie e/ecte?/? or [nomination of the retumed. candidate is noi void. 8) Section 441-H of the Act, which is reproduced as below, describes corrupt practice. 441 - H. Convpt pracffces. - The folfowng 5/7a// be deemed to he convpt pracffces for Vie purposes of thisAct:- (i) Bribery as ctefined in clauw (1) of section 123 of the Repfesentatton of the V- '• Peop/e Act, 1951 (43 of 1951). (ii) Undue influence as defined in dause (2) of the said sectlon. (iii) The systematic appeal by a candSdate or his agent or by any other person with the consent of a candidate or his eleatlon agent to vote or refrain from voting on grounds of caste, race, communlty or religion or the use of, or appeal to, natlonai symbols such as the nationai flag or the n^tionai emblem, for the furtherance of the prospects of that candidate's election. (iv) The pubiication by a candldate or hls agent or by any other person with the aonsent of a candidate or his election agent of any statement of fact which is fatee, and which he elther believes to be false, or does not beiieve to be true, in relation to th& personal charQcter or conduci of any candldate or m reiation fo the candidature, or withdrawai of any candklate, being statement reasonabty calculated fo prejudice the pfospects of that candidate^ election. (v) The hiring or procuring whether payment or othewise of any vehide or vesse/ by a candldate or his agent or by any other person wlth the consent of a candidate or hss eiect'ion agent fcr ihe convey&nce of any elector (other that the CBndidate himself, the members of his fBmiiy or his agent) to or from any polling statlon provided sn acco^ance with the rules made y^der ihis Act; Provided thai the hiring of a vehicie or vessel by an etector or by several electors at their joint costs for the purpose of conveying hsm or ihem to or from any such po!fing ststfon shall not be deemed to be a corrupt practice under this ciause if the vehide or vesse! s hired is a yehicle or vessei not propefled by mechanicai power: Provided further that the use of any public transpoii: vehicfe or ves^ or any tmm car or ralfway carnage by an etecior ai his awn cost for pwpQss of going to or commg from any suah polling station shall not be deemed to be a corrupt praatlae under this cause. 7 Expfanation .- In this clause the exptBssion 'vehide' means any vehicie used or capable of belng ^sed for the purpo^e of road transport whether propelled by mechanlcal power or o^TervWse and whether used for drawing other vehides or othefv/ise. (vi) The holding of any meeting in which sntoxsca^on llquors are served (vii) The issuing of any circuiar, placard or posterhaving a reference to the election Vi/hich cfoes not bear the name and address of the printer and publisher thareof. [{vii - a) the incumng or authorizing of elBction expenditure in excess ofthe amount prescnbed under Section14-A.] (vin) Any other practice which the State Government may prescnbe by rule to be a corrupi practice.J 9) Section 441 (5) of the Act reads as beiow which provides the particulars required to be furnished in ESectlon Petition. "441 (5) An election petition shall - fa) contain a conoise statement of the m&teriai facts on which the petltioner r&lies; (b) with suffident particuiars, s&t forth the ground or grounds on whlch the election or fnominaison] ss cailed in questlon; (c) be signed by the petitioner and verifsed In the m&nner pf&scnbed in the C<xie of Civii Procedure, 1908 (V of 1908), for the verification of pieadings/f 10) Section 441-F of the Act is reproduced as below which contemplates finaJity of the decision, interference by the High Court and the ground for Interference by the HighCourt in revision. 441 -F. Flnality of decisions. - (1) No appeal ^half lie agalnst the declsion of the Court on petition. (2) Any person aggneved by the decision of the Couri on the petlt.'on may within thirty days from ihe date ofsuch deciston apply to the High Court for revision on any of the foilov/ing grounds - (a) that the dedsion is contrary to law; (b) thai the Couri has exercised jurisdlction not vested in it by law or has failed to exerclse junsdiction vested in it by iaw; but subject to such orders as the High Couri may pass thereon, such decision shal! be finaL 11) A very limited jurisdiction has been vested with the High Court under Section 441-F of the Act, if the decision of the District Court is contrary to iaw or if the Court illegally exercised its jurisdiction, oniy In those cases High Court can interfere with the order passed by the District Court in its revisionai jurisdiction. 12) So far as depriving voters from their franchlse of tendered vote is concerned, particulars of those voters have not been given in the petition. So far as chailenging of identity is concerned, sufficient particulars are missing and regarding re-counting what attempts were made by the petitioner has atso not been described by him in his petition. Therefore, in absence of materia! sufficient particuiars petitioner was refrained from chailenging false or forged votlng or rscounting. Even otherwise, iearned District Judge after appreciation of the legai evidence has recorded hls findings and those findings are not perverse. Therefore, so far as ailegations regarding forged voting or lliegai countjng is concerned, that cannot be looked into by this Court in its revisional ^•^——^^L jurisdictlon. I 13) Appointment of Presiding and Poiling OfRcer js governed by Rule 17 of M.P. Nagarpalika Nirvachan Niyam, 1994 and only restriction is that the person appointed shall not be a person who js not in the employment of State Government or locai authority or a public undertaking. Even otherwlse, if the petitioner has any grievance against appointment ofSurendera Singh Thakur as Poliing Officer, he should have raised the same much before the Eiection. From the evidence adduced by both the parties, it is ciear that neither Surendra Singh Thakur is a family member of respondent No.1 nor he is his near relative, on the other hand, from the statement of petitioner Manoj Singh Thakur (RA//1) himsejf, it has been established that Surendra Singh Thakur is related to him instead related to respondent No.1, therefore, the question of mal- practice piayed by him jn favour of respondent No.1 does not arise. 14) So far as construction of road, toilet and drainage from 14/12/2004 to 16/12/2004 are concerned, petitioner did not allege that those constructjons v/ere approved during the operation of Code of Conduct and construction work started during those periods, therefore, the work if already approved and aiiotted to any contractor, that cannot be stopped in the garb of election, so as to deprive peopte from ite enjoyment. Therefore, in absence of specific and compiete pleadjng, government machinery was misused by the respondent No.1 that cannot be accepted. Learned District Judge considered the evidence adduced by both the parties and held that petitioner failed to establish that respondent No.1 after enforcement of Code of Condud: did consfructson work in the Ward. The finding recorded by learned lower Court is based on legal evidence and there appears no pejversity jn appreciation of the evidence so as to condemn it. 10 '15) Respondent No.1 in hls written statement has admltted that he distributed voters' siips that was purporting having first part the details of contestant and othsr part the detaiis of voters. He aiso stated that hs got printed canvassing materiaJ that was in accordance with the guideiines issued by the EIection Commission having name and address of printer, pubjlsher and number of copies. 16) Learned counsei for the petitioner contended that Ex. D/4, D/5 & D/6 filed by respondent No.1 cn his ovvn admission were proved. He piaced his reiiance in the judgment rendered by the Hon'bie Apex Court in Unlted India insurance Co. Ltd., Vs> Saiiiir Chandra Choudhary, reported in (2005) 5 SCC 784 whereln Hon'bie the Apex Court heid that untii presumptlon raised by the admission is rebutted, the fact admitted must be to be estabiished. Ex. D/4, D/5 and D/6 are the documents by respondent No.1 who accordlng to his written statement has admitted those documents. Learned counsei for the petitloner contended that these documents dld not fuifii! the requirement of !aw and according to Section 441-H (vli) of the Act, Issuance ofthese documents falls within the categor/ ofcorrupt practice. 17) Exs. D/4 and D/5 are printed canvassing materials carrying a request to vote in favour of Sunii Soni and Ramesh Singh Thakur. Therefore, both these documents fail in the category of circuiar. Ex. D/4 the name and aa'dress of printer as wei! as publisher and aiso bears number of copies. In Ex.D/5, name of printer, his phone number and coples issued have been disciosed and in place of publisher the word "Soilcif C^jneet) by BJP has been mentJoned. The ruie prescribes circular must contain the name and address of printer and who got it pubijshed. in both these documents name and of printer with 11 .? J 'V number of copies are borne. So far as publlsher is concerned, in Ex-D/4 pubiished by BJP has printed and in Ex»D/5 instead of publlsher, prayed by BJP, this has been printed. Therefore, both these dQCuments published by BJP, bear the name and address of pubiisher. Documents are as a whole to correctiy interpret them, only missing of a word does not bring any document in a different category uniess that "word" aion.e has decisive force to determine its category. Here in the instant case, both these documents which fail within the category of circular, In fact, bears the name and address of the printer and pubiisher though termlnoiogy in Ex°D/5 has been different, Therefore, so far as Ex-D/4 & D/5 are concerned, they are not used in viotation of Section 441-H (vli) of the Act. 18) In Black's Law Dictlonar^ the meaning of 'placarcf has been gjven, which as beiow : "Placard (pJak-ahrd or plak-erd). 1«HM An official document, such as a ilcense or permit* 2, An advertisement posted in a pubjic piace," 19) Ex-D/6 does not fa!l within the categor^ of circuiar, placard or poster, but this is a voter sllp required to be Issued at the time of poliing to the concerned voter for his Identiflcation and Identical to it has besn used by the petitioner hjrnseif i.e. Ex"D/2. The requirement of Section 441 "H (vil) of the Act, does not apply to Ex-D/2 or Ex-D/6. So far as documents Ex-D/3, D/4 & D/5 are concerned, It was not established that respondent No,1 commltted corrupt practice by using these documents. 20) Even iaw as envisaged under Section 441-B (2) of the Act contemplates that if court is satisfied that in aii respects the e'iection or nomination was free from any corrupt practlce on the part of the candidate ^IiSilii11 si ^. or any of his agents, then the eiection cannot be deciared to be void, Here in the instarit case, if for the sake of arguments it may be accepted that Ex. D-2 or D-S do not fuifiil the complete requirement of Section 441-H (vii) in that case also these documents do not carry such material which may be prejudlcia! to other contestants or havlng force to influence voter, or materialiyaffect the eiection, therefore, undoubtediy the eiectlon was fair and was not liable to be deciared void. Technjcailties have no room to cancel eiection of a returned candidate untii it Is proved that it adverseiy affected the resuit of election and that is not the case here. 21) Learned iower Court after due appreciation of evidence did not find ailegation teveied against respondent No.1 proved and there is no materiai to establish that his findings are perverse. So far as admitted documents (Ex-D/4, D/5 &D/6) are concerned, it is ciear there is no vlolatjon of Section 441-H (vii) ofthe Act, even otherwise, these materiais were not such which may adversely affect the resuit of election or bring them ^vithin edifice of corrupt practice^ 22) During arguments no other points have been raised. 23) !n view of the above, neither the. findings of the iower Court are contrary to law, nor the trial Couri: committed any ijlegality or failed to exercise Its iurisdiction^ 24) in the resuit, the revislon faiis and same is accordingly dlsmissed. Parties to bear their own costs. | _ _ _ _.^ VI V.K.Shrivastava Judge .)'- raju