According to him it was wrong to say that a mere margin of votes would determine or would be relevant to determine that result of election has been materially affected.
Nikka Rams wife Raj Kumari was the Pradhan of said Gram Panchayat.
PW3/2, letter dated 26.3.1998, Exbt.
As is evident from the election petition, the respondent did number specifically plead that Nikka Ram was a member of RSS and or BJP except stating that he was an activist or actively associated with them numberdocuments were produced to establish that he was a member of RSS and / or BJP similarly numberhing was placed on record to show that he applied for and failed to get ticket from BJP to companytest the election as a BJP candidate however it is stated that the vote bank was companymon for both, the respondent and Nikka Ram.
The appellant denied that numberination paper of Nikka Ram was wrongly and improperly accepted by the Returning Officer.
PW3/2 is a letter dated 29.12.1994 from the Superintending Engineer, IPH, Circle Rampur, addressed to the Executive Engineer.
He stated that a meeting was held in the Panchayat.
PW3/2 dated 26.3.1998 from the Superintending Engineer was addressed to the respondent in reply to his letter dated 25.3.1998 informing that issue of voluntary retirement of Nikka Ram had number been finalized due to some departmental formalities and his request for voluntary retirement had number been accepted till date.
Kanyaiya Lal whose numberination paper had improperly been accepted, had secured 17,841 votes which were wasted.
Hence improper acceptance of numberination paper of Nikka Ram had materially affected election of the appellant so far he was companycerned.
PW3/3 letter dated 7.8.1998 were of dates subsequent to the date of filing of numberination paper and even declaration of the result of the election on 2.3.1998.
He was number aware as to which Pradhan of Gram Panchayats belonged to which party and for which party they worked.
He referred to greeting cards said to have been sent to several persons and he received one Exbt.
PW3/1 is another letter dated 2.4.1998 from the Superintending Engineer addressed to Nikka Ram at his home address stating that his voluntary retirement as sought companyld number be accepted for the reason that total length of his service was 19 years 10 months and 6 days which was less than 20 years.
By virtue of Rule 48 A, as discussed above, the voluntary retirement of Nikka Ram came into force and became effective from 28.2.1995.
He further stated that names of members were received from Mandals and then the list was prepared the name of Nikka Ram was received from Mandi Mandal.
Hence, the result of the election so far it companycerned the appellant had been materially affected.
Having regard to the evidence and in the absence of positive and companyent evidence lead on behalf of the respondent it is number possible to hold that how many out of the votes secured by Nikka Ram companyld have gone to the respondent so as to say that the result of the election was materially affected so far as it companycerned the returned candidate.
He secured 5500 votes in this companystituency, more than the Congress candidate and the respondent who companytested the Assembly election in the year 1990 as a BJP candidate got less votes than the BJP Parliamentary candidate.
In that meeting, Nikka Ram said that he belonged to BJP and was follower of Shri Atal Bihari Vajpayee.
The appellant also denied that he had put up Nikka Ram as a candidate for the said election by financing him so as to cut into the votes of Dile Ram the respondent .
PW8, Uma Dutt, stated that he became a member of the BJP after his retirement.
In his cross examination, he stated that they had the list of the members of the BJP and that the name of Nikka Ram appeared therein but he companyld number produce that record.
13 together and after discussion in the light of evidence, companycluded that the numberination paper of Nikka Ram was improperly and wrongfully accepted by the Returning Officer as he was holding an office of profit under the State Government on the date of filing of his numberination paper as well as on the day of their scrutiny by the Returning Officer and was disqualified for being chosen as a Member of the Himachal Pradesh Legislative Assembly.
Copies were sent to other authorities to take immediate action.
24 were taken up together for companysideration stating that they were inter connected.
The BJP candidate had polled 250 votes whereas she had polled 750 votes.
RW2 in his evidence has further stated that Nikka Ram companytested the election as an independent candidate.
There was thus a difference of 4497 votes between the votes polled by the appellant and Roshan Lal.
In his deposition the respondent PW1 has number spoken to as to the trend of voting or possible distribution of votes between the companytesting candidates but for Nikka Ram being in the field.
He was set up as a candidate by the Bhartiya Janata Party BJP and the appellant was a candidate sponsored by the Indian National Congress INC .
Of companyrse, the nature and companytents of the charges were number indicated.
The said application mentioned also of three months numberice with a request that he may be retired with effect from 28.2.1995.
Certain preliminary objections were taken as to the maintainability of the election petition.
dated 18.12.1996 it says that an inquiry under Rule 14 of the Central Civil Service Classification, Control and Appeal Rules, 1965 is being held against Nikka Ram and the Inquiry Authority to inquire into the charges framed was appointed.
He was also number aware who worked for the BJP or for the Congress or for the independent candidate.
The polling took place on 28.02.1998.
PW3/3 dated 7.8.1998 was issued giving various details of the departmental formalities and hurdles indicating that his voluntary retirement companyld number be accepted.
He denied that he was the active member of the BJP, although PW1 himself had stated that all his witnesses belonged to BJP.
The legislature has, as numbered earlier, placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of numberination paper of a candidate other than the returned candidate and if such burden is number discharged the election of the returned candidate must be allowed to stand as held by this companyrt in Vashist Narain Sharma and in Paokai Haokip 1969 1 SCR 637 case.
He stated that he was associated with the BJP Nikka Ram used to companye and meet with a request to vote for BJP when he was unable to get the BJP ticket, he told he was the worker of BJP, therefore, the votes should be given to him Nikka Ram claimed himself as the man of Shri Atal Bihari Vajpayee on the ground that he belonged to that party.
He has further stated that one Ganga Singh, a former M.P. is a resident of his companystituency and his Panchayat.
In examination in chief, he also stated that Nikka Ram had companynection with RSS and was also associated with BJP.
By this evidence, it was number established that Nikka Ram was either a member or activist of RSS and or BJP.
She defeated both BJP and Congress candidates in the election of Pradhan of Gram Panchayat.
Since the High Court has set out the pleadings of the parties in sufficient details, we companysider it unnecessary to repeat them.
According to the respondent, as pleaded in para 4 of the election petition, the said application made for voluntary retirement had number so far been accepted by the Government and Nikka Ram still companytinued in Government service.
As such the votes secured by Nikka Ram were disproportionately large, being three times more than the margin of difference between the votes secured by the appellant and the respondent had the numberination paper of Nikka Ram been rejected, the votes polled in his favour would have definitely been polled in favour of the respondent as those were pro BJP and anti establishment.
The appellant was examined as RW 2.
He stated that Nikka Ram attended training camp of the RSS with him but did number remember the date number the month number the year.
He also denied the suggestion that in case numberination paper of Nikka Ram had number been accepted, the respondent would have been successful in the election.
Application for impleadment was made on the ground that Nikka Ram and State of Himachal Pradesh were number made parties to the election petition.
He had known and seen Nikka Ram as an active member of the BJP.
By a detailed order dated 3.8.1998, the High Court held that the petition did number suffer from any fatal defect so as to entail its dismissal at the threshold.
It was also denied that because of the propaganda of Nikka Ram, the votes of BJP supporters which would have been in the numbermal companyrse polled in favour of the respondent instead went in favour of Nikka Ram.
No other witness for the respondent spoke about the possible distribution of so called wasted votes.
The material and relevant facts, to the extent they are companysidered necessary for the disposal of this appeal, are set out as under.
In his cross examination he said that he helped the respondent in the election.
He filed objection to the numberination paper of Nikka Ram.
In the light of these pleadings of the parties, the learned trial Judge framed the following issues Whether the numberination paper of shri Nikka Ram was improperly and wrongfully accepted by the Returning Officer?
Similarly, there was numberevidence to establish that he campaigned in the election that he belonged to BJP he would join BJP in case he was elected and that he was supporter of Shri Atal Bihari Vajpayee.
Issue number.
He failed to prove his objection by 3.00 PM.
The Returning Officer waited for him upto 6.25 PM even then he did number produce any proof and numberextension of time was sought for on behalf of the objector beyond 6.25 PM.
RW1, K.D. Lakhanpal, the Returning Officer, in his evidence has stated that Nikka Ram was an independent candidate.
The election petitioners did number produce any evidence to discharge the burden that improper acceptance of the numberination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate.
The Returning Officer directed him to produce evidence that Nikka Ram was in the active service.
In his evidence he stated that he was an active participant in the RSS and Nikka Ram was associated with the activities of the RSS and BJP.
In 1989 election to Lok Sabha, Mr. Maheshwar Singh was the BJP candidate.
In his evidence, while rebutting the case of the respondent and supporting his defence, he has clearly denied the suggestions in the cross examination to the companytrary.
Out of 40 Gram Panchayats, 30 32 have Congress elected Pradhans.
During election, Nikka Ram had been canvassing for vote as an independent candidate and did number appeal in the name of any political party.
The main plank of the campaign of Nikka Ram was asking for votes in the name of Shri Atal Bihari Vajpayee he being an RSS activist would stand by the side of Shri Atal Bihari Vajpayee if elected as MLA.
His evidence is of numberhelp to the respondent.
Nikka Ram was Junior Engineer in his Circle.
He did number make any written request to the Returning Officer to grant more time to place the record.
At 12.15 PM on 5.2.1998, time was given to Joginder Singh to prove his objection upto 3.00 PM that Nikka Ram was in Government service.
It is further indicated that if number the detailed position be intimated to this office immediately, the VVC may be obtained personally from the E In C, IPH Department, Shimla, as well as from the C.N. Dharmshala immediately.
PW1/1 which was marked subject to objection but ultimately that was number admitted in evidence.
He did number assert or say that Nikka Ram was member of RSS and or BJP.
Congress candidate in that election got only 3000 votes.
Provided that this sub rule shall number apply to a Government servant, including scientist or technical expert who is on assignments under the Indian Technical and Economic Co operation ITEC Programme of the Ministry of External Affairs and other aid programmes.
PW9, Prem Chaudhary, stated that he knew the appellant and Nikka Ram Nikka Ram belonged to RSS he received a greeting card he also belonged to RSS during election, Nikka Ram was soliciting votes as being member of BJP.
It was also denied that acceptance of his numberination paper had materially affected the result of election insofar as it companycerned the appellant.
The decision, one way or the other, on the point whether the said Nikka Ram ceased to be a Government servant or companytinued to be in Government service may result in serious companysequences affecting the rights of Nikka Ram or the State Government as the case may be.
He was number aware whether the said Ganga Singh supported him or opposed him.
The votes secured by the five candidates are as given below Sr.
The appellant was declared elected by the Returning Officer on 02.03.1998 after the companynting of votes.
The findings were recorded on these issues also in favour of the respondent holding that by the improper and wrongful acceptance of the numberination paper of Nikka Ram, the result of election has been materially affected so far as it companycerned the election of the appellant.
It is number pleaded as to the pattern or trend of voting so as to show how the wasted votes secured by Nikka Ram companyld have been distributed.
PW3/1 is said to be the Office Order of the IPH Deptt.
He also stated that membership register of Nachan would be with its President but the said register was number produced.
He had number seen any record of membership of Nikka Ram.
He, however, further stated that the membership of the BJP had number been companyferred upon Nikka Ram.
He was aspiring for BJP ticket from Nachan companystituency.
Further there was numberhing to establish that voters of BJP and Nikka Ram were companymon.
In the cross examination, he stated that he received the card in March 1997.
He admitted in cross examination that in 1993 also, the appellant companytested and won the election as an independent candidate.
On the basis of the record available, he accepted the numberination paper of Nikka Ram by rejecting the objection of Joginder Singh on the ground of lack of proof.
In the cross examination, he has stated that resignation was given by Nikka Ram in the year 1995.
Copy of the letter dated 26.3.1998 issued by the Superintending Engineer certifying that voluntary retirement application of Nikka Ram had number been accepted, was filed alongwith the election petition.
In the cross examination, he admitted that he had numberproof of the fact that Nikka Ram was an active member of the BJP.
On the basis of the material available on record on the date of scrutiny of numberination paper, there was numberhing to show that Nikka Ram companytinued in Government service in view of the admitted position that he had submitted application for voluntary retirement by giving numberice on 5.12.1994 and numberrefusal was companymunicated to him, refusing acceptance of voluntary retirement before 28.2.1995.
He further stated that the speech made by Nikka Ram did number have any impact on the members of the Panchayat.
OPP The trial companyrt took up issue number.
PW7, Nand Lal, was the President of the Gram Panchayat Bara, from 1990 to 1995.
In the cross examination, he has admitted that Nikka Ram never applied for being enrolled as a member from Nachan Mandal he applied for the membership from the Mandi companystituency membership was never given to him from Nachan companystituency.
The evidence of this witness did number help the respondent to establish that Nikka Ram was member of BJP or he was associated with RSS or he was active worker of RSS or BJP.
PW3/3, letter dated 2.4.1998 and Exbt.
Nikka Ram was number examined.
The respondent Dile Ram filed the election petition challenging the election of the appellant from 61 Nachan C. Assembly Constituency in Himachal Pradesh, pleading that the numberination papers were filed by the appellant, the respondent and others.
He and Nikka Ram belong to same Panchayat.
In response to the application dated 6.8.1998 of the respondent, Exbt.
PW6, is Joginder Singh, proposer of the respondent in the election.
It is further stated that Nikka Ram secured 2287 votes whereas the margin of difference between the votes secured by the appellant and the respondent was only 759.
Since, thereafter main election petition itself was disposed of after a full dressed trial on merits by the impugned judgment, it is unnecessary to go into further details on this aspect.
Those records were number produced.
PW5 stated that Nikka Ram was one of the activists of the BJP.
According to the respondent, Nikka Ram was an active worker of the Rashtriya Swayam Sevak Sangh RSS and was closely associated with the cadre and workers of RSS and BJP the vote bank of the respondent as well as the said Nikka Ram by and large was companymon as both of them were in companytact with the BJP and RSS workers, supporters and well wishers having failed to get BJP ticket, Nikka Ram filed his numberination paper as an independent candidate only with an object to cut into the votes of the respondent and damage his chances of election.
There was also numberevidence to establish that he applied for BJP ticket and the same was denied to him.
In the Zila Parishad election, she had polled approximately 3,700 votes while the BJP candidate had polled 1200 votes.
He further stated that he helped Nikka Ram during the election, as he was one among them.
It was denied that Nikka Ram was active worker of RSS.
One Joginder Singh PW6 raised objection to the numberination paper of Nikka Ram.
One more letter Exbt.
The respondent lost the election by a margin of 7300 votes.
From this evidence, it cannot be said that the burden of proof placed on the respondent election petitioner was discharged.
He was President of the BJP earlier.
He had numberpersonal knowledge as to whether the resignation was accepted or number.
He companyld number produce evidence as the time given was too short.
He has admitted that witnesses cited by him were the BJP activists they were office bearers of the party prior to 1991.
In support of the grounds of challenge, material averments are made in paras 4 5 of the election petition, which were denied in the written statement filed by the appellant.
He also pleaded that he was number a member or active worker of BJP or RSS and he did number campaign in the election for votes as belonging to BJP.
The last witness PW10 examined in support of the election petition was Dhameswar Dutt, Pradhan of Gram Panchayat, Jhungi since 1993.
After the scrutiny and withdrawal of numberination papers, five candidates remained in the field.
His numberination paper was improperly and wrongly accepted by the Returning Officer which in turn had materially affected the result of the election in so far as it companycerned the returning candidate the appellant.
Posted abroad in foreign based offices of the Ministries Departments.
LITTTTTTJ J U D G M E N T Shivaraj V. Patil, J. Aggrieved by the judgment and order dated 24.03.2000 passed by the High Court of Himachal Pradesh in Election Petition No.
He admitted that PW5, Ram Swarup, was the General Secretary of BJP of Mandi district PW6, Joginder Singh, was the active member of BJP from Nachan companystituency.
In the cross examination, he denied the suggestion that time sought for to furnish proof by Joginder Singh was denied.
2/98, setting aside the election of the appellant from 61 Nachan S.C. Assembly Constituency and declaring it void, this appeal has been filed by the appellant under Section 116 A of the Representation of People Act, 1951 for short the RPA , calling in question the companyrectness and validity of the said judgment and order of the High Court.
