Govind Singh vs Harchand Kaur

2. The election of the appellant was challenged by the respondent- Smt. Harchand Kaur who is the defeated candidate and although she had secured third position in the polling, she challenged the election of the appellant alleging corrupt practice against him within the meaning of Section 123 (1) (A) of the Act of 1951.

3. The essential details of the Election petition which formed the basis of challenge to the election of the appellant, disclose that on June 26, 2001 the Governor of Punjab issued a notification under Section 15 of the Representation of People Act, 1951 calling for election of MLAs from all constituencies in Punjab to constitute the Punjab Legislative Assembly. The appellant-Govind Singh, at the relevant time was functioning as a Minister of Social Security, Women and Child Development and the party in power to which the appellant belonged was Shiromani Akali Dal (Badal). However, the appellant admittedly resigned on January 12, 2002 from the primary membership of Akali Dal as he was denied party ticket to contest the election from the said Assembly Constituency. The Election Commission published the election schedule which stated that the last date for filing nomination would be January 23, 2002 and the date for scrutiny of nominations was fixed for 24.01.2002. The schedule further indicated that the last date for withdrawal of candidature would be January 28, 2002 after which the poll was to be held on February 13, 2002 and finally the counting of votes on February 24, 2002.

4. In view of the aforesaid schedule fixed by the Election Commission, the appellant - Govind Singh and nine others filed nominations for contesting the election for the reserved 82-Sherpur (S.C.) Assembly Constituency. The appellant had filed nomination as an independent candidate since he had resigned from the membership of the Shiromani Akali Dal (Badal) party.

5. The election to the concerned constituency was held as per schedule on 13th February, 2001 and the process was finally complete on February 24, 2002 after counting of the votes when the appellant was declared elected to the reserved 82-Sherpur (S.C.) Assembly Constituency since he had secured highest number of votes which was 30132. The nearest rival to the returned candidate i.e. the appellant-Govind Singh, was Piara Singh of the Shiromani Akali Dal (Badal) in whose favour 26525 votes had been polled and the contesting respondent - Smt. Harchand Kaur secured third position in whose favour 19439 votes had been polled. The total number of votes polled was admittedly 90882 in the Assembly Constituency where all these three candidates had contested.

6. The Respondent - Smt. Harchand Kaur, having been defeated in the election felt aggrieved of the election result as she apprehended, which obviously was a late realisation on her part to the effect that the elected candidate i.e. the appellant herein, Govind Singh, had indulged in corrupt practices in the election process due to which she could not emerge as a victorious candidate. This prompted her to file an Election petition in the High Court of Punjab and Haryana, bearing Election petition No. 22/2002 wherein she challenged the petitioner's election alleging illegal acts of omission and commission at the instance of the appellant which amounted to indulgence in corrupt practice within the meaning of Section 123 (1) read with Section 100 (1) (b) of the Act of 1951.

7. Elaborating the details of her alleged plea of corrupt practice on the basis of which the respondent Smt. Kaur had filed the Election petition in the High Court 4 challenging the election of the appellant -Govind Singh, it was stated that the returned candidate while holding the charge of Social Security Minister in the State Cabinet misused his power with an intention to gain benefit in the election 2002 violating the procedure as he sanctioned and released the old age/widow/handicapped pensions in favour of the residents of Sherpur Constituency and this was clearly with a view to secure votes of the electorates in the ensuing election. A list of 16 persons with their addresses was furnished along with a few forms pertaining to those persons indicating that the petitioner had sanctioned their pension directly.

8. The respondent herein Smt. Harchand Kaur further alleged that the returned candidate, the appellant herein, while holding the post of Cabinet Minister in charge of Social Security Department misused his power and got various women voters of his Constituency employed as Anganwadi Workers for the period upto 28.2.2002 and they were employed in service with a motive to compel them to undertake the work of his election and cast their votes as also manage other votes in his favour in the constituency in the election scheduled to be held on 13.2.2002. A list of 13 women with their addresses was given alongwith the true translated copy of one such appointment letter. Relying on these facts, the respondent alleged that the appellant is guilty of committing corrupt practice with a view to secure votes in the election which is covered under Section 123 of the Act of 1951.

9. The Respondent Smt. Harchand Kaur levelled a third allegation also alleging corrupt practice by stating that the returned candidate Govind Singh- the Appellant herein, distributed money among the voters in exchange of their promise to vote for him directly as well as through his agents with his consent in the presence of respectable village persons who stood surety on their behalf. The appellant had also promised to facilitate construction of drains and many pacca pavements and streets in case he was voted and emerged as a victorious candidate. Elaborating further on this aspect, the respondent herein alleged that the appellant Shri Gobind Singh paid cash at various places for getting votes as informed by the respectable persons of that area, namely, Avtar Singh, S/o Baldev Singh, Balbir Singh, S/o Budh Singh, both r/o village and Post Office Ladda, Tehsil Dhuri, District Sangrur; Jaspal Singh, Sarpanch village Bir Mamgarh, Tehsil Malekotla, District Sangrur and Ramzan Khan Sarpanch, village Jatewal, Tehsil Malerkotla district Sangrur. However, only Balbir Singh out of these persons was cited in the list of witnesses filed later on by the respondent in her Election petition. He was subsequently cited as a witness who could not prove the allegation of cash for votes but was cited as a witness only to prove the allegation that the petitioner had delivered speeches at various places to promote enmity on the ground of religion. He, however, was finally never examined by the respondent.

10. Thus, the sum and substance of the entire allegations levelled by the defeated candidate Smt. Harchand Kaur - the respondent herein, is to the effect that the appellant-returned candidate Shri Gobind Singh with the active support of 6 his supporters indulged in corrupt practice and offered bribery in the form of gift and promise to give cash to those who voted in his favour. This vitiated the election and hence he is guilty of committing corrupt practice which is covered under Section 123 (1) A (b) and B (b) of the Act of 1951 due to which the election held on 13th February, 2002 deserves to be quashed and set aside since the corrupt practice at the instance of the appellant is covered under Section 123 of the Act of 1951.

11. The appellant Shri Singh responded to the Election petition by filing his written statements to the petition on August 12, 2002 wherein he initially took the preliminary objection that no material facts and material particulars had been pleaded in the petition concerning the allegations of corrupt practice and no time, date and place had been mentioned and hence the contents were liable to be struck off as no cause of action was disclosed by the petitioner/respondent herein. It was further averred that no attested or true copy of the Election petition had been served on the petitioner nor the verification of the petition was done as per the 1951 Act as well as the Code of Civil Procedure due to which the same was also defective as the affidavit had not been filed in support of the allegations of corrupt practice, in terms of the requirements of the Act of 1951. In so far as, the merits of the allegations in the petition are concerned, they were denied and it was clarified that the returned candidate / the appellant herein had already resigned from the Government as Minister of Social Security as also from the primary membership of the Shiromani Akali Dal on January 12, 2002. The appellant submitted that the sanction or release of pensions was done by the 7 District level authorities and the appellant who was then a Minister at the most, had recommended acceptance which was always subject to the legal norms for such pension. It was further stated that all the documents annexed by the respondent with her Election petition in the High Court pertained to the period 2001, and therefore, were irrelevant to the period of the election that is January 23, 2002 to February 24, 2002. The pass books of the pension receivers annexed by the respondent merely showed the normal flow of pensions into the pension accounts in 2001 without even a statement that these were sanctioned by the petitioner in 2002 since this was inherently impossible after his resignation. It was further stated therein that none of the allegations contained the relevant material facts and the material particulars as to the date, time and place which could substantiate the allegation.

12. The Respondent Smt. Harchand Kaur thereafter filed rejoinder to the written statement wherein the facts stated in the Election petition were reiterated in order to contend that the appellant in fact indulged in corrupt practice to ensure his victory in the election.

17. The High Court was further pleased to observe that the resignation of the appellant from the Cabinet or from the primary membership of the Shiromani Akali Dal had no connection with the distribution of cash in the name of pension on 10.2.2002, 11.2.2002 and 12.2.2002 when voting was to take place on 13.2.2002. Hence, the election of the returned candidate to 82-Sherpur (SC) Assembly Constituency to which the appellant Gobind Singh had been declared elected, was declared void and consequently was set aside. It was, therefore, directed that the Election Branch of the Registry with regard to the disqualification of the returned candidate to contest any further election be communicated. The Election petition thus was allowed with cost which was determined at Rs. 50,000/-.

18. The returned candidate Shri Govind Singh-the appellant herein, obviously felt aggrieved with the judgment and order of the High Court setting aside his election and hence has preferred this appeal assailing the judgment and order of the High court. However, we were informed that during pendency of this appeal, the appellant has already completed his term as a member of the Legislative Assembly but this appeal could not be treated as infructuous since the appellant is bound to suffer the consequence of disqualification on account of the setting 12 aside of his election on the alleged indulgence in corrupt practice in the previous election which will affect his candidature to contest any election in future.

27. Learned counsel for the respondent further placed reliance on PW-10 Jaspal Singh son of Sarwan Singh who deposed that Shri Gobind Singh Kanjla alongwith a group of people with him came for the purposes of filling up pension forms. The pension forms were filled up on 12.2.2002, although he had been 20 coming to his village earlier. The work of filing up the forms for pension was executed opposite to State Bank of India, Sandhaur Branch at about 6.30 to 7.00 p.m. The Minister was calling the ladies and made the entries in the pension books from Rs. 200/- to Rs. 600/-. This witness stated that payment used to be made in cash and he claimed to identify this signatures of Shri Gobind Singh Kanjla. The signatures of Exs. PW1/1 and PW1/3 in green ink were that of Shri Gobind Singh Kanjla and signature on other documents also were of Shri Gobind Singh Kanjla.

This authority has also taken note of the ratio of the decision in the case of Samant N. Balkrishna v. George Fernandez wherein the three Judge Bench headed by the then Chief Justice M. Hidayatullah laid down five criteria which are mandatory under Section 83 of the Act for determination as to whether the Election petition discloses that it does not lack in material facts and particulars. It was laid down therein that it is mandatory to first of all record a concise statement of material facts and then the fullest possible particular. Any omission of even a single material fact leads to an incomplete cause of action and statement of claim would be treated as bad. The function of particulars is to present in full, a picture 28 of the cause of action and to make the opposite party understand the case he will have to meet. The learned Judges further held therein that the `material facts' and `material particulars' are distinct matters and while the material facts will mention statements of fact, the particulars will set out the names of persons with date, time and place while stating the material facts as it will not be sufficient merely to quote the words of the section since the efficacy of the material facts in that event would be lost.

32. The aforesaid principle laid down by the Supreme Court in the aforesaid authority has adequately been taken care of in the election petitions which are filed alleging corrupt practice wherein utmost caution and care are applied while dealing with the allegation of indulgence in corrupt practices at the instance of the returned candidate, but in the process, misappreciation of evidence and hence error of judgment in coming to a definite conclusion cannot be ruled out due to which appeals are preferred against the judgment and order of the High Court delivered in election petitions. The instant appeal also is one such appeal where the election of the returned candidate has been set aside by the High Court vide impugned judgment on the findings of corrupt practice which is under challenge and hence we have carefully scrutinized the evidence led by the contesting parties and critically considered the submissions of the counsel for the respective 24 parties in the light of the settled law laid down, before the election of a returned candidate is allowed to be quashed and set aside.

58. Similarly PW-2 Shri Devinder Kumar, Superintendent Social Security in the office of District Programme Office, Sangrur has conceded in the cross- examination that approval letters were in respect of the whole District of Sangrur and not of Sherpur Constituency alone and the orders did not have the signatures of the returned candidate.

67. In view of the unsatisfactory analysis of the evidence and erroneous approach of the High Court while recording the finding on the issue of corrupt practice, we consider this appeal fit to be allowed as no conclusive inference can be drawn that the respondent Smt. Kaur who had secured only third position in the election has succeeded in proving the charge of corrupt practice against the returned candidate-the appellant herein and the same at best can be held to be 52 based on allegations which desperately required unimpeachable evidence of trustworthy nature adduced by independent witnesses which could not be treated as tainted or evidence of doubtful nature. Since the charge of corrupt practice has to be proved beyond reasonable doubt and not merely by preponderance of probabilities, the evidence relied upon by the High Court cannot be held to be of such probative value which do not reflect on the credibility of the witnesses relied upon by the High Court, so as to interfere with the election result by which the appellant had been elected. Consequently, we set aside the judgment and order of the High Court and allow this appeal. However, the parties are left to bear their own cost.