IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 3960/2010 & CM APPL 7911/2010
Reserved on: April 7, 2011
Decision on: April 26, 2011
A. DHANWANTI CHANDELA ..... Petitioner
Through Mr. Rakesh Kumar Khanna, Senior Advocate
with Mr. Rajbir Bansal, Ms. Seema Rao, Mr. Vishal
Panwar and Mr. Rajiv Ranjan Mishra, Advocates.
versus
BALBIR TYAGI AND ORS ..... Respondents
Through Mr. Rajesh Yadav with
Ms. Ruchir V. Arora, Advocates for R-1.
Mr. Naveen Grover with
Mr. Raj Kumar, Advocates for R-4.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the order should be reported in Digest? Yes
JUDGMENT
26 .04.2011
1. Aggrieved by the dismissal of her election petition CS (OS) No. 44 of
2007 challenging the election of Respondent No. 1, Mr. Balbir Tyagi, to
the Municipal Ward No. 116, Vikas Puri, New Delhi by the impugned
judgment dated 3rd April 2010 of the learned Additional District Judge
W.P. (C) No. 3960/2010 Page 1 of 19
(„ADJ‟), the Petitioner A. Dhanwanti Chandela has filed the present
petition.
2. At the election to Municipal Ward No.116 held on 5th April 2007, the
Petitioner was the candidate of the Jharkhand Mukti Morcha („JMM‟) and
Respondent No. 1 Balbir Tyagi was the candidate of the Bharatiya Janata
Party („BJP‟). Respondent No. 4 was the other contesting candidate. In the
election petition filed on 24th April 2007 the Petitioner stated that
subsequent to the declaration of results she came to know through various
sources that Respondent No. 1 had not complied with the rules and the
notification issued by the State Election Commission as regards the
maintenance of accounts and expenses. It was averred that Respondent No.
1 had appointed one Mr. Raj Pal who was a permanent employee of the
Municipal Corporation of Delhi („MCD‟) as his polling agent at the polling
station No. 107 in Ward No. 116 on the election date, i.e. 5 th April 2007. It
was further averred that Respondent No. 1, with a view to alluring voters,
had got a full page advertisement inserted in the issues of Jan Manas
Weekly dated 18th -24th March 2006, 25th-31st March 2007 and 1st-6th April
2007 and had paid a sum of Rs. 24,000/- for each publication. The
expenses towards the said advertisement had not been shown in the
statement of expenses incurred by Respondent No. 1 on the election.
Further, it was stated that Respondent No. 1 appointed Mr. Rohtash, who
W.P. (C) No. 3960/2010 Page 2 of 19
was a permanent employee of the Delhi Transport Corporation („DTC‟), as
polling agent at polling station No. 106 and this amounted to corrupt
practice in terms of Section 17 (1) (b) of the Delhi Municipal Corporation
Act, 1957 („DMC Act‟). The Petitioner claimed that she got the second
highest number of votes after Respondent No. 1 and should be declared
elected.
3. In the written statement filed by Respondent No. 1, it was stated in para
9 that the Petitioner did not verify the petition in terms of Section 15 (4) (c)
of the DMC Act. Respondent No. 1 stated that Mr. Davinder Chadha was
the only polling agent appointed by him. He denied having appointed Mr.
Raj Pal as a polling agent. It was alleged that the name „Raj Pal‟ had been
inserted in the form for appointment of polling agent for polling station No.
107 in a different handwriting and at a later stage. Neither his parentage nor
his address was mentioned in the said form which on the face of it appeared
to be “a forged and fabricated document, so far as mentioning of name of
Rajpal as a polling agent is concerned.” Further it was averred that there
could not possibly be a nomination of more than one polling agent in one
form. Such a form or a form with incomplete particulars would not be
accepted by the Returning Officer (R.O)/Presiding Officer (P.O).
Respondent No. 1 denied that he had not maintained the accounts and
expenses or the vouchers for the expenses incurred. He further denied that
W.P. (C) No. 3960/2010 Page 3 of 19
he got full page advertisements published in the Jan Manas Weekly. It was
stated that there was no such newspaper at least not in the area where
Respondent No. 1 resided or had contested the elections. It is further
averred that on verification, it was found that there was no such newspaper
published from the said address. In fact from that address another
newspaper „Nai‟ [“Newspaper Association of India”] was being published.
It is submitted that the three receipts of Rs. 24,000/- each were forged and
fabricated. No such money was ever paid and no advertisement published.
It was further denied that Respondent No. 1 had appointed Mr. Rohtash as
his polling agent. It is stated that the document does not bear the signature
of Mr. Rohtash. It is averred that “it seems that somebody has manipulated
some blank signed paper pertaining to appointment of Polling Agent by the
answering Respondent and the blanks in the same were filled in at a later
stage.”
4. On 18th May 2009 the learned ADJ framed the following issues:
“1. Whether Raj Pal an employee of Horticulture Department of
MCD had been appointed as an election agent of the Respondent
No. 1? If yes, its effect. (OPP)
2. Whether Rohtash an employee of DTC had been appointed as
an election agent of the Respondent No. 1? If yes, its
effect. (OPP)W.P. (C) No. 3960/2010 Page 4 of 19
3. Whether the Respondent No.1 has failed to submit the details of
expenses as required under Chapter 5 (A) of the DMC (Election of
Councillors) Rules? If yes, its effect. (OPP)
4. Whether the Respondent No. 1 has exceeded the prescribed
expenses? If yes, its effect. (OPP)
5. Whether the petition has not been properly verified as required
and there has been a violation of Section 15 of the DMC
Act? (OPR-1).
6. Whether the election of Respondent No. 1 from Ward No. 116,
Vikaspuri (East), New Delhi – 18 is liable to be declared
void? (OPP)
7. In case if the aforesaid issue is decided in affirmative, whether
the election petition is liable to be declared as elected from Ward
No. 116, Vikaspur (East), New Delhi – 18? (OPP)
8. Relief.”
5. The Petitioner examined eight witnesses and Respondent No. 1
examined nine witnesses.
6. As regards Issue No. 1 it was held by the learned ADJ that no
explanation was forthcoming for the different ink and the handwriting on
Form 8-B. Further, the P.O. had inserted the name of Raj Pal in the same
W.P. (C) No. 3960/2010 Page 5 of 19
form whereas according to the R.O. it should have been done in a separate
form. These factors raised a doubt which the Petitioner had not been able to
clear and therefore, the case of Respondent No. 1 that the name of Raj Pal
was “surreptitiously added at a later stage by interpolation cannot be
unfounded.” Issue No.1 was accordingly decided against the election
Petitioner.
7. Mr. Rakesh Kumar Khanna, learned Senior counsel appearing for the
Petitioner assailed the above finding by referring first to Rule 22-A of the
Delhi Municipal Corporation (Election of Councillors), Rules 1970 („DMC
Rules‟) and submitted that a candidate could in terms of the above
provision appoint two reliever agents in addition to the polling agent and
that Mr. Raj Pal was in fact appointed as a reliever for the polling agent Mr.
Davinder Chadha. Mr. Khanna then referred the evidence of PW-7 Mr.
K.P.S. Chauhan, the P.O., who admitted that he had inserted the name of
Mr. Raj Pal at the instructions of Mr. Balbir Tyagi and Mr. Raj Pal had
signed his name in the presence of the P.O. Mr. Khanna referred to the
evidence of Mr. Raj Pal who admitted his signature on the Form 8-B. He
referred to the attendance report maintained at the Horticulture Department
of the MCD and submitted that the signatures of Mr. Raj Pal thereon for 5th
April 2007 to 7th April 2007 appeared to have been made on the same day.
Further, the said attendance sheet did not necessarily mean that Mr. Raj Pal
W.P. (C) No. 3960/2010 Page 6 of 19
was continuously present on duty on 5th April 2007 from 9 am to 5 pm. He
submitted that the learned ADJ had overruled the objection of the learned
counsel for Respondent No. 1 and held that Form 8-B had been duly
proved by PW-7 and that Mr. Raj Pal had identified his signature. Mr.
Khanna submitted that procuring the assistance of an employee of the
MCD was a corrupt practice within the meaning of Section 17 (1) (b) of the
DMC Act read with Rule 92 (a) of the DMC Rules.
8. In reply it is submitted by Mr. Rajesh Yadav, learned counsel appearing
for Respondent No. 1 that Mr. Raj Pal in his cross-examination stated that
he never met Respondent No. 1 at any point in time. The mere oral
evidence to prove a corrupt practice was not sufficient. It had to be
substantiated by documentary evidence. Mr. Yadav referred to a number of
judgments including Pradip Buragohain v. Pranati Phukan JT 2010 (6)
SC 614, Sudarsha Avasthi v. Shiv Pal Singh (2008) 7 SCC 604,
Borgaram Deuri v. Premodhar Bora (2004) 2 SCC 227, Regu Mahesh @
Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev (2004) 1 SCC 46,
Mahender Pratap v. Krishan Pal (2003) 1 SCC 390 and Kamal Nath v.
Sudesh Verma (2002) 2 SCC 410.
9. In order to appreciate the above submissions, the relevant statutory
provisions may be referred to. Section 17 (1) (b) of the DMC Act states that
W.P. (C) No. 3960/2010 Page 7 of 19
the election of the returned candidate can be declared void on the ground of
commission of any corrupt practice by the returned candidate or his agent.
A set of corrupt practices have been listed out in Section 22 of the DMC
Act. Rule 92 of the DMC Rules lists out further corrupt practices. Rule 92
(a) of the DMC Rules states that “the obtaining or abetting or attempting to
obtain or procure by a candidate or his agent, or by any other person with
the consent of candidate any assistance (other than the giving of vote) for
the prospect of that candidate‟s election from any person in the service of
the Corporation” shall be deemed to be a corrupt practice. The case of the
Petitioner is that Respondent No.1 engaged Mr. Raj Pal, an employee of the
MCD, as his reliever agent, in contravention of Rule 92 (a) DMC Rules.
That a reliever agent can be engaged is plain from Rule 22 A of the DMC
Rules which reads as under:
“22-A. Appointment of polling agents – (1) A
contesting candidate may appoint one agent and two
relief agents to act as polling agents of such candidate at
each polling station and every such appointment shall be
made in Form 8-B and shall be made over to the polling
agent for production at the polling station.
(2) No polling agent shall be admitted into the polling
station unless he has delivered to the Presiding Officer
the instrument of his appointment under sub-rule (1) after
duty completing and signing before the Presiding Officer
the declaration contained therein.”
W.P. (C) No. 3960/2010 Page 8 of 19
10. The P.O. was examined as PW 7, a witness of the Petitioner. He
deposed as under:
“I have brought the summoned record. On 5th April 2007,
I was posted as Presiding Officer in Ward No. 116,
Polling Station No. 107 at Prerna Public School, Vikas
Puri in the elections of corporation for the year 2007. The
documents already exhibited as PW 1/7 which is the
attested copy of the original form 8-B which I have
brought today and this document Ex.PW-1/7 was signed
in my presence by Sh. Devender Chaddha and Sh. Raj Pal
over the polling agents at polling station No. 107 of Ward
No. 116 and they were the polling agents of Sh. Balbir
Tyagi.
Xxx by Ld. counsel Sh. Rohtash Sharma, Advocate for
the Respondent No. 1.
Before appointment of Presiding Officer, training was
given. It is correct that one form is meant for one agent.
Another agent was appointed as a reliever which I am
otherwise empowered to appoint.
Court Question:
The reliever was appointed by me on the request
made by the candidate and the name of the reliever
had been given to me by Mr. Balbir Tyagi, the
candidate to the election. I did not ask the reliever theW.P. (C) No. 3960/2010 Page 9 of 19
name of his father and his address. Vol.: I had only seen
his election ID card on the basis of which I was satisfied
and I appointed the agent. I am not aware if Rajpal was
on duty on the date of election. It is incorrect to suggest
that Rajpal was not present before me and was on his
duty as a Maali. I cannot tell whether Rajpal is a resident
of Haryana. Vol., the person was present before me
along with the identity card. I did not obtain the voter
identity card of Rajpal. I am not aware if a separate
form is required to be filed up for a reliever Polling
Agent. It is incorrect to suggest that the name of the
Rajpal has been inserted, added, interpolated by me later
on with the connivance of the Petitioner after the form
has been sent out and it is for this reason that the ink is
different. It is incorrect to suggest that I have connived
with other candidate and deliberately added the name of
Rajpal. (emphasis supplied)Court Question:
As per the established procedure, who fills up the Form
8-B.
Ans. The Form 8-B is given to the candidate and is filled
up by the candidate or his agents. There is no separate
form for reliever polling agent.
It is correct that there is no indication in the entire form
that Rajpal was a reliever. I have not seen any other form
with two polling agents. I was not the Presiding Officer in
polling booth No. 108. Vol., I was the Presiding OfficerW.P. (C) No. 3960/2010 Page 10 of 19
in Polling Booth No. 107. No reliever for any other
candidate had been appointed since there was no request.
It is incorrect to suggest that I am deposing falsely.”
11. The salient feature of the above evidence is that PW-7 categorically
stated that “the reliever was appointed by me on the request made by the
candidate and the name of the reliever had been given to me by Sh.
Balbir Tyagi, the candidate to the election.” The cross-examination by
counsel for Respondent No.1 was about the established procedure and the
fact that there is usually no separate form for the reliever polling agent. It is
also evident from the cross-examination that “there is no indication in the
entire form that Rajpal was a reliever.” The remaining answers are in reply
to the questions by the court. Mr. Rajesh Yadav submitted that this may not
have been correctly recorded as these questions were also by counsel for
Respondent No.1. Be that as it may, PW-7 remained unshaken about the
fact that he added the name of Raj Pal at the instance of Respondent No.1
and that Raj Pal signed his name in the presence of PW-7. The suggestions
that he was deposing falsely were denied by him.
12. PW-7 asserted that “the person was present before me along with the
identity card. I did not obtain the voter identity card of Rajpal.” This Court
is unable to accept the contention of Mr. Rajesh Yadav that PW-7 had
acted in connivance with the Petitioner and gave contradictory answers. He
W.P. (C) No. 3960/2010 Page 11 of 19
saw Raj Pal‟s identity card. It makes little difference that he did not obtain
the voter identity card of Mr. Raj Pal. PW-7 only had to satisfy himself of
Raj Pal‟s identity. His evidence shows that he did. The suggestion to him in
cross-examination that “the name of the Rajpal has been inserted, added,
interpolated by me later on with the connivance of the Petitioner” was, of
course, denied by him. The significant aspect of the evidence of PW-7 is
that in his chief-examination PW-7 clearly stated that “this document
Ex.PW-1/7 was signed in my presence by Sh. Devender Chadha and Sh.
Rajpal over the polling agents at polling station No. 107 of Ward No. 116
and they were the polling agents of Sh. Balbir Tyagi.” Nothing was elicited
from him in the cross-examination to contradict the said assertion. PW-7
effectively negatived the case of Respondent No. 1 that the name of Mr.
Raj Pal had been interpolated in the form and that Mr. Raj Pal was never
present before the P.O. and did not sign the Form 8-B.
13. Another significant feature is that Mr. Raj Pal was examined as RW-4,
in other words as a witness of Respondent No.1. He was expected to
support the case of Respondent No.1. His evidence shows otherwise:
“I am working in MCD as Mali in Horticulture Department
posted at J Block, Vikas Puri, New Delhi. I was on duty on
5th April 2007 starting from 9 am to 5 pm.Xxxxx by Sh. B.D. Kaushik, counsel for the Plaintiff.
W.P. (C) No. 3960/2010 Page 12 of 19
I know Sh. Balbir Tyagi who is Respondent No. 1 in the
present case, since my childhood. He is not related to me. I
know Balbir Tyagi as I am working nearby his residence. I
visited his house once prior to about 10 to 12 years. I am
working in Horticulture Department of MCD since 1981
and was regularized in the year 1983. It is correct that
document Ex.RW4/PX1 bears my signatures at points A
and B (objected to by the counsel for the Respondent No.
1 on the point of putting the photocopy of the document
to the witness).” (emphasis supplied)
14. What is significant is that Mr. Raj Pal did not deny that his signature
was on Form 8-B. If in fact he had not signed the form he should have said
so in reply to this question. The learned ADJ in fact found no merit in the
objection raised by counsel for Respondent No.1 on the ground that he was
shown the signatures on the photocopy. The precise finding of the learned
ADJ is under:
“I find no merit in the objection raised since the said Form
8-B has been duly proved by PW-7 and the witness Rajpal
being the executant of the same has identified his signatures
on the photocopy and now at the final stage the original
Form 8-B bearing the signatures of Raj Pal has also been
placed on record.”
15. Clearly on this crucial aspect Mr. Raj Pal, as a witness of Respondent
W.P. (C) No. 3960/2010 Page 13 of 19
No. 1, did not support the case of Respondent No.1.
16. Also significant is that no attempt was made to have the signature of
Mr. Raj Pal on the Form 8-B verified by a handwriting expert although this
was got done as far as the other polling agent Mr. Rohtash is concerned.
The evidence of PW-7 and RW-4 effectively proved that it was Respondent
No.1 who gave the P.O. the name of Raj Pal for addition as his reliever
polling agent; the P.O. then inserted the name of Raj Pal in Form 8-B and
in the presence of the P.O. Mr. Raj Pal signed the form. Also it stands
proved that Mr. Raj Pal was an employee of the MCD.
17. The argument of Respondent No. 1 that Form 8-B is for a single polling
agent and could not have been accepted with Mr. Raj Pal‟s name also being
inserted there is neither here nor there. Merely because a separate form was
not used for the purpose of the nomination of Mr. Raj Pal as a reliever
polling agent, does not falsify the case of the Petitioner that Respondent
No. 1 had, in fact, appointed Mr. Raj Pal as a reliever agent. In the course
of the arguments, learned counsel for Respondent No. 1 put forth another
line of defence by suggesting that Mr. Raj Pal had, in fact, acted on behalf
of the Petitioner herself, who had earlier been a Councillor in the area and
could have influenced Mr. Raj Pal to come to sign the Form 8-B. This
argument overlooks that Mr. Raj Pal was examined as RW-4, a witness of
W.P. (C) No. 3960/2010 Page 14 of 19
Respondent No. 4. No attempt was made to declare Mr. Raj Pal hostile. No
question was put to him that he acted at the behest of the Petitioner.
18. Once the Form 8-B was produced in the Court and was duly proved by
PW-7 who was the P.O., the Petitioner had discharged the burden to show
that Respondent No. 1 had appointed Mr. Raj Pal, an employee of the
MCD, as his reliever polling agent. The burden then shifted to Respondent
No. 1 to prove that the P.O. connived with the Petitioner and forged the
Form 8-B. This Respondent No. 1 failed to do. The reasoning of the
learned ADJ and the conclusion in favour of Respondent No. 1 on this
aspect does not square with the evidence. The conclusion also contradicted
the finding of the learned ADJ to the following effect:
“I find no merit in the objection raised since the said Form
8-B has been duly proved by PW-7 and the witness Rajpal
being the executant of the same has identified his
signatures on the photocopy and now at the final stage the
original Form 8-B bearing the signatures of Raj Pal has
also been placed on record.”
19. The subsequent conclusion of the learned ADJ that the argument of
Respondent No. 1 that the name of Raj Pal was “surreptitiously added at a
later stage by interpolation cannot be unfounded” is based on surmise and
is unsustainable in law. In the considered view of this Court, in the light of
the evidence led by the parties, Issue No. 1 had to be answered in favour of
W.P. (C) No. 3960/2010 Page 15 of 19
the Petitioner. In terms of Rule 92 (a) of the DMC Rules read with Section
17 (1) (b) of the DMC Act the election of Respondent No. 1 had to be
declared void.
20. On Issue No. 2 the learned ADJ held against the Petitioner on the
ground that the Petitioner failed to place on record any notification to show
that employees of the DTC were covered under the prohibited category.
Consequently it mattered little whether Mr. Rohtash was in fact appointed
as a polling agent of Respondent No.1 in regard to polling booth No.108. In
the view of this Court, this finding does not call for interference. However
what is interesting is that Mr. Rohtash denied the signatures in the Form 8-
B which was produced and marked as Ex.PW-5/2. In this regard the
Petitioner relied on the evidence of PW-8 Mr. R.G. Meena who asserted
that Mr. Rohtash Singh had signed his name in the presence of Mr. Meena,
at Ex.PW-8/A. Again, a series of suggestions were made to Mr. Meena that
Mr. Rohtash Singh had never acted as a polling agent of Respondent No. 1
and that in connivance with the Petitioner, Mr. Meena had manipulated the
records. The learned ADJ directed an expert opinion to be obtained on the
signatures in the said Form 8-B. By a detailed report dated 15th March 2010
the expert concluded that the sample signatures of Mr. Rohtash taken in the
Court matched the signatures on Form 8-B. The Petitioner therefore
succeeded in proving that Respondent No. 1 had taken a false defence as
W.P. (C) No. 3960/2010 Page 16 of 19
regards Mr. Rohtash Singh who appeared as RW-3 and denied his
signatures on Form 8-B. Although the finding of the learned ADJ on Issue
No. 2 does not call for interference, the false defence taken by Respondent
No. 1 was not without consequence as far as the Petitioner was concerned.
21. It was submitted on behalf of Respondent No.1 that the Petitioner had
falsely alleged that Respondent No. 1 had inserted full-page advertisements
in a local newspaper and had produced fabricated receipts to prove it. This
was serious enough to invite the dismissal of the election petition. In
response, it is submitted by Mr. Khanna that the Petitioner did summon the
publisher of the said newspaper but the latter did not appear despite
summons.
22. On Issue No. 4 this Court concurs with the learned ADJ that the
Petitioner was not able to establish that Respondent No.1 exceeded the
prescribed expenses. However, the ADJ‟s further observation that there
was the possibility of some other person inserting the advertisement in Jan
Manas Weekly “only for creating a ground in the election petition at a later
stage” was based on surmise and unwarranted.
23. Mr. Rajesh Yadav then argued that there was no proper verification of
the election petition and that this was decided against Respondent No. 1
W.P. (C) No. 3960/2010 Page 17 of 19
and in favour of Petitioner. Respondent No. 1 was not precluded from
raising this ground in this writ petition. Reliance was placed on the
decisions in Anil Kumar Gupta v. MCD (2000) 1 SCC 128 and Ravinder
Kumar Sharma v. State of Assam (1999) 7 SCC 435. On the above issue
No. 5 learned ADJ found that the affidavit in support of the petition had
been properly verified and signed and therefore, there was no substance in
this objection. This Court does not find any legal infirmity in the said
finding.
24. As regards Issue No. 6, in view of the conclusions reached
hereinbefore, this Court sets aside the finding of the learned ADJ and holds
that the election of Respondent No.1 is liable to be declared void. However,
on issue No. 7, this Court concurs with the learned ADJ that there was no
occasion for declaring the Petitioner to be elected. Although the Petitioner
obtained the next highest number of votes, in view of the judgment of the
Division Bench of this Court in Satish Kumar v. Vikas 177 (2011) DLT 1,
it is not possible to accept the submission of the Petitioner that she should
be declared to be elected.
25. Consequently, this Court sets aside the impugned order dated 3rd April
2010 of the learned ADJ in respect of Issue Nos. 1 and 6 and declares the
election of Respondent No. 1 to Municipal Ward No. 116 void on the
W.P. (C) No. 3960/2010 Page 18 of 19
ground that Respondent No.1 appointed Mr. Raj Pal an employee of the
MCD as his reliever polling agent thus attracting the provisions relating to
corrupt practice as contained in Section 17 (1) (b) of the DMC Act read
with Rule 92 (a) of the DMC Rules. The consequent vacancy in Municipal
Ward No. 116, Vikas Puri will be filled up by a fresh election being held in
accordance with law.
26. The petition is allowed in the above terms, with costs of Rs. 5,000/-
which will be paid by Respondent No. 1 to the Petitioner within a period of
four weeks from today.
27. The petition and the pending application are disposed of.
S. MURALIDHAR, J
APRIL 26, 2011
rk
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