Paripoornan, J. - (1.) These are connected cases. The main appeal is C.A. No. 2886 of 1989. The Civil Appeals and the Special Leave Petition are preferred against the judgment of the Punjab and Haryana High Court, Chandigarh dated 2-6-1989 rendered in E.P. No.7 of 1987. The validity of election to the Haryana Legislative Assembly held in June, 1987 for the 67 Toshan Legislative Assembly seat is in issue. Civil Appeal No. 2886 of 1989 is the appeal filed by the returned candidate Shri Dharamvir, Lokdal (B) - first respondent in E.P. No.7 of 1987 (as amended). The respondents therein are, petitioners 1 to 3 in the election petition, respondents No.2 in the election petition Shri Bansi Lal (Indian National Congress) and respondents 3 to 15 in the election petition - independent candidates, who contested the election. Petitioners 1 to 3, respondent No.2 and respondents 3 to 15 in the election petition are arrayed as respondents 1 to 17 in Civil Appeal No. 2886 of 1989. In Civil Appeal No.2888 of 1989, the appellants are respondents 1 to 3 in Civil Appeal No. 2886 of 1989 (petitioners in the election petitionn). Special Leave petition No. 12196 of 1989 is one filed by a person who was not a party in the High Court. The petitioner therein was the Returning Officer PW-9, Shri M. L. Sarwan, who, aggrieved by certain observations made against him, has sought special leave to appeal against the judgment dated 2-6-1989. The election petition was one filed under Sections 80 to 84 and 100 of Part VI. Chapter II of the Representation of People Act, 1951 (hereinafter referred to as the Act). In short, the prayer in the petition was to declare the election of the appellant (first respondent in the election petition) to the Haryana State Assembly from 67 - Toshan Legislative Assembly seat (hereinafter referred to as the Assembly seat) held in June, 1987 as void and to declare the fourth respondent herein (respondent No.2 in the election petition) Shri Bansi Lal (Indian National Congress) as elected. The High Court, by a detailed judgment dated 2-6-1989, held that the election of the appellant to the Assembly seat is void and set aside the same. The appellant was further disqualified for a period of six years from seeking election from the date the judgment came into force. It is from the aforesaid judgment, the first respondent in the election petition (appellant herein) has filed this appeal under Section 116-A of the Act.
(2.) For the sake of convenience, we will refer to the parties as they are arrayed in the appeal - Civil Appeal No.2886 of 1989. The election for the Assembly seat was held on 17-6-1987. The counting of the votes took place on 18-6-1987. The results were declared on 19-6-1987. Shri Devi Lal, leader of Lok Dal (B) party was sworn in as Chief Minister of Haryana State on 20-6-1987. The appellant polled 32,547 votes, as against 30,361 votes polled by the fourth respondent. The invalidated votes amounted to 3,128 out of which in 2,799 votes, there were double marking in the ballot papers. In brief, the allegations to set aside the election are that the appellant was guilty of commission of corrupt practice or undue influence as envisaged by Section 123 (2) of the Act by direct or indirect interference with the free exercise of electoral right. It was alleged that with the consent of the appellant, his counting agents started creating terror and browbeating and threatening with physical injuries, the counting agents of other candidates, that the ballot papers of the fourth respondent were soiled by putting unauthorised rubber stamp, (a replica of the rubber stamp authorised by the Election Commission of India for marking the ballot papers), marks were cast on the ballot papers, which were in favour of the fourth respondent to invalidate the votes, that at least 10 to 15 votes of each polling booth cast in favour of the fourth respondent were included in the bundles of ballot papers of the appellant, that instructions were given to the counting agents that if any interference is made in the above, the person should be severely dealt with and notwithstanding the complaint made to the Returning Officer (PW-9) and the Observer (PW-12), no action was taken against the above unauthorised acts and threats, that unauthorised rubber seals were recovered by the Returning Officer from table No.1 at the instance of police and votes spoiled on Table No.2 were brought to the Returning Officer for being rejected as invalid, etc, but nothing was done to put an end to the above unauthorised acts. The Returning Officer (PW-9) was physically dealt with the appellant was able to obtain an order of rejection of valid votes polled in favour of the fourth respondent as invalid with the assistance of the Returning Officer to further the prospects of his election and it was alleged that on these grounds, the election is liable to be set aside under Section 100(1)(d)(i) and (iii) of the Act. The votes cast in favour of the fourth respondent, which were tampered with and rendered invalid, numbered to 3138. The counting agents of the fourth respondent were not allowed to effectively participate during the counting and there was suspension of the counting more than once. These and other allegations, by which the appellant furthered his prospects to invalidate the votes cast in favour of the fourth respondent caused rejection of valid votes cast in favour of the fourth respondent by affixing seal, unauthorisedly and intimidation and physical threats were administered to PW-9 Returning Officer in the course of counting, etc. These averments are dealt with in paragraphs 7 to 9 of the election petition in detail (Paper book Vol.II p. (96 to 201). As against these allegations, the defence was one of total denial to the effect that no such incident took place.
(3.) In the light of the pleadings of the parties, the High Court condensed the electoral controversy into eleven issues, of which Issue Nos. 1, 2, 4, 5 and 7 are material, for the purpose of this appeal. They are as follows:- "1. Whether respondent No.1, his counting agents and supporters with his consent committed corrupt practices of undue influence, by direct or indirect interference or any attempt to interfere in the free exercise of the electoral rights as detailed in paragraph 6 of the election petition 2. Whether respondent No.1, his counting agents and supporters with his consent committed corrupt practices of obtaining and procuring the assistance of a Returning Officer, for the furtherance of his election, as detailed in paragraph 77. 4. Whether the Returning Officer has improperly rejected the valid votes, polled in favour of respondent No.2, and if so, what is its effect 5. Whether the Returning Officer permitted respondent No.1, his agents and his supporters to physically handle the valid votes of respondent No.2 and to tamper with the same in violation of the Act and the Rules 7. Whether Form 20 has been prepared subsequent to the declaration of election result on the basis of imaginary figures and if so, what is its effect The findings on the above issues are summarised in the appeal petition, at pages 108 to 110, in the following terms:- (i) Issue No. 1 - the agents and supporters of the appellant with his consent put double marks, stamps, seals or thumb impressions on the votes cast in favour of respondent No.4 thereby invalidating the same. The appellant was found guilty of commission of corrupt practice of undue influence under Section 123 (2) of the Act. (ii) Issue No.2 - the appellant, his agents and supporters manhandled the returning Officer and thus obtained/procured the assistance of the returning Officer for the furtherance of his election prospects and thus guilty under Section 123(7) of the Act. (iv) Issue No.4 - returning Officer improperly rejected votes which had been cast in favour of respondent No.4 (v) Issue No.5 - returning Officer had permitted the appellant, his agents and supporters to tamper with the votes in favour of respondent No.4. (vii) Issue No.7 - election result in Form 20 had been prepared on the basis of imaginary figures and is thus liable to be set aside". ;