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High Court Of Rajasthan
Judgename : L.N.Chhangani,Kan Singh
UMRAO SINGH DHABARIYA - Appellant
Versus
YASHWANT SINGH NAHAR - Respondent
Election Petn. 15 Of 1967
Decided On : 04/25/1969
ELECTION PETITION - DISQUALIFICATION - OFFICE OF PROFIT - ZILA PARISHAD PRAMUKH - CORRUPT PRACTICES - BRIBERY - UNDUE INFLUENCE - ASSISTANCE OF GOVERNMENT SERVANTS - TAMPERING OF BALLOT PAPERS - VALIDITY OF ELECTION.
Fact of the Case:
The petitioner, a defeated candidate in the election to the Rajasthan Legislative Assembly, challenged the election of the respondent, who was the Zila Pramukh of the Bhilwara Zila Parishad, on the grounds of disqualification, corrupt practices, and tampering of ballot papers.
Finding of the Court:
1. The respondent, as the Zila Pramukh, held an office of profit under the Rajasthan State but it was not an office under the State Government within the meaning of Article 191 (1) (a) of the Constitution, and therefore, he was not disqualified from being elected as a member of the Legislative Assembly. 2. The allegations of corrupt practices, including bribery, undue influence, and assistance of government servants, were not proved. 3. The allegation of tampering of ballot papers was also not proved.
Issues: 1. Whether the respondent was disqualified from being elected as a member of the Legislative Assembly under Article 191 (1) (a) of the Constitution, as he held the office of the Pramukh of Zila Parishad, Bhilwara? 2. Whether the respondent committed corrupt practices of bribery, undue influence, and obtaining assistance of government servants? 3. Whether the ballot papers were tampered with, affecting the sanctity of the ballot boxes?
Ratio Decidendi: 1. The test for determining whether a person holds an office of profit under the State Government is whether the Government makes the appointment, has the right to remove or dismiss the holder of the office, pays the remuneration, and exercises control over the performance of the functions of the office. 2. The Zila Pramukh is elected by an electoral college, can be removed by a vote of no confidence by the members of the Zila Parishad, is paid a honorarium out of the Zila Parishad funds, and performs functions for the Zila Parishad, not for the Government. 3. The Government's control over the Zila Parishad is institutional and not personal, and the Pramukh is not subject to the Government's dictation in the exercise of his functions. 4. Corrupt practices, such as bribery, undue influence, and assistance of government servants, must be fully established, with clear evidence showing that a promise or gift was made directly or indirectly to an elector to vote or refrain from voting at an election. 5. An evil practice, such as spending money on the eve of elections for general public good, may not be a corrupt practice, but it should be avoided as it can easily turn into a corrupt practice.
Final Decision: The election petition was dismissed with costs to the respondent. The Election Commission and the Speaker of the Rajasthan Legislative Assembly were informed of the result of the election petition.
CHHANGANI, J.
( 1 ) THIS is an election petition under Sections 80 and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) by Shri Umrao singh Dhabariya, a defeated candidate, calling in question the election of Shri yashwant Singh Nahar respondent No. 1 to the Rajasthan Legislative Assembly from the Banera Constituency (No. 144) in the last general elections held in february, 1967, claiming prayers to -
(i) declare the election of the respondent No. 1 to the a Rajasthan legislative Assembly from Banera Constituency (No. 144) void, and
(ii) further to declare the petitioner duly elected from the aforesaid banera constituency (No. 144) to the Rajasthan Legislative Assembly. There were three contesting candidates in the Banera constituency:
(i) The petitioner Shri Umrao Singh, Dhabariya who was a sitting member of the Rajasthan Legislative Assembly contested the election as a Socialist Party candidate, (ii) The respondent No. 1 Shri Yashwant singh Nahar who was the Zila Pramukh of the Bhilwara Zila Parishad was the candidate of the Congress party which was the ruling party in power headed by Shri Mohan Lal Sukhadia the Chief Minister.
(iii) The respondent No. 2 Shri Dwarka Prasad contested as a Praja socialist Party candidate. The first and the last date for filing nomination papers were 13th January and 18th january, 1967, respectively. Polling took place on 18th February, 1967. According to ballot paper account, 33,520 ballot papers were issued to the voters and 44 ballot papers were received by post. Thus, 33564 ballots were polled. Counting was done on 22nd February, 1967. The total votes found and counted came to 32,555 including the 44 ballot papers received by post. The rest of the ballot papers were found missing. The respondent Shri Yashwant Singh Nahar polled 16,287 votes, the petitioner Shri Umrao Singh Dhabariya 12,399 and Shri Dwarka prasad 2,386 votes. 1,483 ballot papers were rejected as invalid. The respondent no. 1 having secured the maximum of votes was declared elected on 22-2-1967.
( 2 ) ON 7-4-67 the last date of limitation the petitioner filed an election petition challenging the election on various grounds:-
(1) In the first instance, it was stated that the respondent No. 1 was, on the date of election as well as nomination, disqualified to be chosen a member of the Legislative Assembly under Article 191 (1) (a) of the constitution of India as he held the office of the Pramukh of Zila parishad, Bhilwara, since early 1965 till the date of the presentation of the petition. It was further stated that as a Pramukh the respondent No. 1 had been drawing a monthly honorarium in addition to the travelling and daily allowances payable to him.
(2) The petitioner also averred that the respondent and his agents and workers with his consent and knowledge committed the corrupt practices of bribery and undue influence and of obtaining or procuring the assistance of certain categories of persons in the service of the government.
(3) Reliance was also placed on the discrepancy relating to the ballot papers polled and the ballot papers counted and it was contended that the ballot papers were tampered with and the sanctity of the ballot boxes having been lost the aforesaid election cannot be maintained. The petitioner impleaded the other two contesting candidates as also Shri shri Narain Das Mehta who was Collector and District Magistrate, bhilwara, during the election period, the Sub Divisional Magistrate, gulabpura -- Returnning Officer for 144 Banera Assembly Constituency and Shri Shiv Narain Tiwari Vikas Adhikari, Banera District Bhilwara, as there were allegations that the respondent No. 1 procured their assistance for the furtherance of the prospects of his election.
( 3 ) THE election petition and the schedules were verified in a general manner on the basis of personal knowledge and information received and reasonably believed to be correct. The petitioner also filed an a
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