Decided on April 29,2005



- (1.) This order shall govern the disposal of I. A. No. 2602/2004 filed on behalf of respondent No.1-Nand Kumar Patel, the returned candidate, for dismissal of the election petition for non-compliance of the mandatory provisions of law i.e. proviso to Section 83 read with Rule 94-A of the Conduct of Election Rules 1961 for not filing the affidavit in Form-25 as prescribed under above Rule 94A of the Conduct of Election Rules, 1961.
(2.) By way of this election petition the petitioner has called in question the election of respondent No. 1 herein as Member of Legislative Assembly of Chhattisgarh from the Constituency No. 18-Kharsiya, which was held on 1-12-2003 and the result was declared on 4-12-2003. The petitioner herein was the independent candidate whereas respondent No. 1, who won the election, was the candidate of Indian National Congress party. The petitioner herein has questioned the election of respondent No.1 on the ground of corrupt practices as mentioned in Paragraphs No. 8 & 11 and stated that said practices come within the meaning of Section 123 (4) & (5) of the Representation of the People Act, 1951 (hereinafter shall be referred as 'Act of 1951). Paragraph No.8 of election petition which relates to publication of pamphlets is reproduced herein below :- "8. That, the respondent No. 1 not duly complied the letter/direction dated 14-11-2003 and in contrary for the very purpose to demoralize and defame the petitioner under the corrupt practice printed number of pamphlets and distributed the same. That, the language of the aforesaid pamphlet is not up to the mark of Ideal Conduct Code because object of publishing and distributing the said libelous pamphlets amongst the electorate of the said constituency was to tarnish the fair name and image of the petitioner in the eye of voters. The allegations made in the said pamphlet were per se defamatory besides being false to the knowledge of the respondent No.1 and in the same pamphlet the respondent No. 1 who was allotted symbol of 'Hand' in the constituency election for the very purpose to utilizing the name of Indira Congress he made a prayer to vote me on 'PANJA' symbol whereas the symbol of the respondent No. 1 was 'Hand' and not the 'Claw' that is clear from the aforesaid pamphlet. That bare perusal of the impugned pamphlet would convince the Hon'ble Court that the contents of the said pamphlet amounted to reckless character assassination in the eye of law. Not only the contents of the impugned pamphlet were false, cooked up and imaginary but they were calculated to discharge the fair name and image of the petitioner and scathing allegation against the personal character of the petitioner." Paragraph No. 11, which is regarding corrupt practices as envisaged under Section 123 (5) of the Act of 1951, reads like this : "11. That, the petitioner also made a complaint on dated 1-12-2002 alleging that agents of the respondent No.1 namely Sukhdeo S/o Tarachand Dansena by way of TATA SUMO CG 04 - A 4899 and CG 04 ZP 1056 brought the voters to vote the respondent No. 1 so on the basis of said complaint thana police not taken any action though there is endorsement for enquiry that is clear from the documents. Thereafter, the petitioner sent the representation to the Chief Election Officer, Indian Election Commission but no one has taken any action on the complaint of the petitioner." In support of election petition an affidavit has been filed as per requirement of proviso to Section 83 (1) and also as per Form- 25 prescribed under Rule 94A of the Conduct of Election Rules, 1961 (hereinafter shall be referred as "Rules of 1961)".
(3.) In the application filed on behalf of respondent No. 1 for dismissal of election petition it has been mentioned that the affidavit filed in support of the election petition does not satisfy the requirement of Form- 25 prescribed under Rule 94A of the Rules of 1961 & and it has been prayed that therefore, the ejection petition of the petitioner be dismissed.;

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