FAYAZ UDDIN Vs. MOHAMMAD ISNAIL
LAWS(DLH)-1983-10-28
HIGH COURT OF DELHI
Decided on October 13,1983

FAYAZ UDDIN Appellant
VERSUS
MOHAMMED ISMAIL Respondents


Referred Judgements :-

ABHEY SINGH V. NIHAR SINGH [REFERRED]
AMIN LAL V. HUNNE MAL [REFERRED]
MOHAN RAJ VS. SURENDRA KUMAR TAPARIA [REFERRED 5 AIR 1965 SC 1243 10]
N G ZELIANG VS. AJU NEWMAI [REFERRED 13]
CHATURBHUJ CHUNNILAL VS. ELECTION TRIBUNAL KANPUR [REFERRED]
BABURAO TATYAJI BHOSLE VS. MADHO SHRIHARI ANEY [REFERRED 9]


JUDGEMENT

N.N.GOSWAMY, J. - (1.)The petitioner is an elector in the constituency in question and he has filed an election petition challenging the election of respondent 1, the returned candidate, on the grounds of corrupt practices covered under S. 123(3) and (4) of the Act from the Metropolitan Council Constituency No. 46, Qasabpura, Delhi in the election held on 5-2-1983.
(2.)In Para 6 of the petition, it is alleged that respondents 1 to 9 filed their nomination papers from the said Metropolitan Constituency as candidates. In addition to the said nine respondents, the two other persons namely Babu Lal and Om Prakash Vashisht were also duly nominated as candidates but they withdrew their nomination papers before the date of withdrawal. The allegations of corrupt practices are contained in para 13 and 17 of the petition. It is stated in paras 13 and 17 :
"13. That a public meeting was organised by the respondent 1 which was held on 25-1-1983, at about 9.00 P.M., in the ground near Ban Masjid Qasabpura Delhi. This area is predominently a Muslim area. In this meeting on the stage/dais Shri Mohd. Arif Beg who is a very important functionary and office bearer of Bhartiya Janta Party, the respondent 1 Mohd. Ismail, Shri Quamet-ud-din who was BJP Candidate to the Municipal Corporation of Delhi from the Ward falling in the constituency in question Shri Om Prakash Sahni election agent of the respondent No. 1 and General Secretary to the Qasabpura Block BJP etc., were seated. Said Shri Mohd. Arif Beg delivered a speech in Urdu in the said meeting which was very largely attended by the Muslim Voters. In his entire speech, he made consistent appeals on the ground of Muslim religion and community and appealed to the Muslim voters to vote for the respondent 1. He also in his speech attempted to promote the feelings of enmity and hatred between the different classes of citizens of India on the grounds of religion and community with the object of materially affecting and for the furtherance of the elections prospects of respondent 2. In his speech Shri Arif Beg recited Ay at from the Holy Book the Quran Sharif in Arabic and himself translated the same into Urdu."
Paras 17 of the petition deals with the printing and publishing of certain posters. It is alleged :
"It is submitted that the said posters were widely circulated and published in the early hours of morning of 3-2-1983, throughout the Qasabpura constituency in general and such areas in the constituency which are predominantly inhabited by the persons belonging to Quresh brotherhood. These posters were being affixed with the consent of respondent No. 1 under the supervision of his election in charge and agent namely Om Parkash Sahni son of Shri Gurbux Rai who was also the general secretary of the block BJP of Qasabpura, in the early hours of the morning of 3-2-1983. The petitioner himself witnessed the pastings of the aforesaid posters as mentioned above. It is further submitted that the petitioner has set forth the full particulars of the said corrupt practice, relating to the said poster. However, the names of the persons who have committed this corrupt practice and the time and date and place of its commission are given."

(3.)In the written statement filed by the returned candidate i.e. respondent 1, it was pleaded as a preliminary objection that the petition was liable to be dismissed for non- compliance with S. 82(b) of the Act. It is stated that Om Prakash who is also known as Om Prakash Sawhney was a candidate in the said election. He filed his nomination papers and his nomination papers were accepted and he thus became one of the duly nominated candidates in the election in dispute. Later on the said Om Prakash withdrew his candidature before the date of withdrawal and was appointed by the returned candidate as an election agent and he was the election-in-charge of the said respondent. Allegations of corrupt practices have been made in the petition against the said Om Prakash who was a candidate in the said election but he has not been impleaded as a respondent as required under the mandatory provisions of S. 82(b) of the Act. The petition was liable to be dismissed on this short ground.
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