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1998 Supreme(MP) 605
High Court Of Madhya Pradesh
S. K. DUBEY
ASHOK BAJHAL - Appellant
Versus
MOHD.YAKUB - Respondents
C. R. 813 Of 1996
Decided On : 08/11/1998
L.S.BAGHEL, MASOOD KHAN, OM NAMDEO
In an election petition, the allegations of corrupt practice must be specific and unambiguous, and the burden of proof lies on the petitioner to establish the charges.
Headnote:
ELECTION LAW - CORRUPT PRACTICE - ISSUANCE OF PAMPHLET WITHOUT PRINTER AND PUBLISHER'S NAME AND ADDRESS - ELECTION PETITION - PLEADING AND PROOF - VAGUENESS AND GENERALITY - ADVERSE INFERENCE - CONSENT OF CANDIDATE - Madhya Pradesh Municipalities Act, 1961 (19 of 1961), Secs. 20(5), 28(vii).
Fact of the Case:
An election petition was filed challenging the election of the petitioner as a member of the Municipal Council on the ground of corrupt practice under Section 28(vii) of the Madhya Pradesh Municipalities Act, 1961. The allegation was that a pamphlet (Ex. P-2) was issued and circulated by Pandit Gopal Bhargava, a sitting MLA of the same party as the petitioner, without bearing the name and address of the printer and publisher. The petitioner denied the allegations and claimed that there was no evidence to establish that he had issued or consented to the issuance of the pamphlet.
Finding of the Court:
The trial court found that the pamphlet (Ex. P-2) was issued with the consent of the petitioner and declared his election void. The court drew an adverse inference against the petitioner for not examining Pandit Gopal Bhargava.
Issues: 1. Whether the allegations of corrupt practice in the election petition were vague and general? 2. Whether the trial court erred in drawing an adverse inference against the petitioner for not examining Pandit Gopal Bhargava?
Ratio Decidendi: 1. The court held that the allegations of corrupt practice in the election petition were vague and general. The petition did not specify the date, time, place, and persons involved in the issuance or distribution of the pamphlet (Ex. P-2). There was no allegation that the petitioner had issued or consented to the issuance of the pamphlet. 2. The court held that the trial court erred in drawing an adverse inference against the petitioner for not examining Pandit Gopal Bhargava. The court noted that consent of the candidate must be established and cannot be inferred from the non-examination of a witness.
Final Decision: The court allowed the revision petition and set aside the order of the trial court declaring the petitioner's election void.
( 1 ) THIS is a revision under Section 26 (2) of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as 'the Act') against the order dated 16-3-1996, passed in Misc. Civil Case No. 7 of 1995 by the District Judge, Sagar.
( 2 ) FACTS giving rise to this revision are thus: In the year 1994, for composition of the Municipal Council, Garhakota, elections of different wards were held on 27-11-1994. The petitioner and respondent No. 5 and other two candidates contested the election from Ward No. 1 known as Jawahar Ward. The petitioner was a candidate of Bhartiya Janta Party while respondent No. 1 was of Congress (I ). The result of the election was declared on 29-11-1994, wherein the petitioner was declared elected as he secured 363 votes while respondent No. 1 secured 295 votes and other two independent candidates secured one vote each. The respondent No. 1 challenged the election of the returned candidate by an election petition under Section 20 of the Act for declaring the election of the returned candidate to be void on the ground of committal of corrupt practices as defined under Section 28 (i) (ii) (iii) and (vii) of the Act. After notice, the petitioner denied the allegations. Respondent No. 3 also filed his written statement while respondent No. 2 did not file written statement. The trial Court raised 9 issues. After recording of evidence, the trial Court found established the corrupt practice of issuing of pamphlet (Ex. P-2) having reference to the election or selection which did not bear the name and address of the printer and publisher thereof, therefore, declared the election of the petitioner void from Ward No. 1 of Municipal Council, Garhakota.
( 3 ) SHRI L. S. Baghel, learned senior counsel contended that as mandatorily required by sub-section (5) of Section 20 of the Act, an election petition to contain a concise statement of the material facts on which the petitioner relies and to set forth with sufficient particulars the ground or grounds on which the election of nomination is called in question. It is not the case of the election petitioner that the returned candidate issued Ex. P-2 which had a reference to the election does not bear the name and address of the printer and publisher thereof. There is no allegation that the Ex. P-2 allegedly published by Pandit Gopal Bhargava, a sitting M. L. A. was with the consent of the returned candidate. Nor there is any allegation that with the consent of the returned candidate Ex. P-2 was circulated and distributed amongst the voters of Ward No. 1. There are also no particulars of date, time and place and also of the persons to whom it was circulated or distributed. There are no particulars in the pleadings of the circulation of the pamphlets (Ex. P-2) by the returned candidate, accompanying with Pandit Gopal Bhargava. Even in absence of the pleadings, there is no cogent legal evidence that Ex. P-2 was issued and circulated with the consent of the returned candidate. The trial Court only on surmises and for non-examination of Pandit Gopal Bhargava has raised an inference that Ex. P-2 was circulated with the connivance of the returned candidate. In an election petition, burden lies on the election petitioner to prove the charge of corrupt practice fully and to the satisfaction of the Court. The trial Court, in the absence of pleadings looked into the evidence which also does not make out a case of corrupt practice. The trial Court on conjecture by drawing inference and by adopting and involving process of reasoning, has held that Ex. P-2 was published by Gopal Bhargava, a sitting M. L. A. of Bhartiya Janta Party, which contain the names of all the candidates of different parties who contested the election as candidates of Bhartiya Janta Party. If any leader issues any pamphlets, that cannot be said to be by the consent of the returned candidate unless the consent is established by direct or other evidence so as to arrive at irresistible conclus
