SHAMIM ALAM S/O LATE SHRI MUNNAWER ALI KHAN Vs. DINESH AGGARWAL, S/O LATE SRI RATI RAM AGARWAL
LAWS(UTN)-2012-6-42
HIGH COURT OF UTTARAKHAND
Decided on June 15,2012

SHAMIM ALAM S/O LATE SHRI MUNNAWER ALI KHAN Appellant
VERSUS
DINESH AGGARWAL, S/O LATE SRI RATI RAM AGARWAL Respondents

JUDGEMENT

HONBLE B.S.VERMA, J. - (1.) BY means of this election petition, the election petitioner has challenged the election of the returned candidate from 13-Laxman Chowk Legislative Assembly Constituency, district Dehradun and has sought the following relief:- (a) To declare the election of the respondent as Member of 13-Laxman Chowk Legislative Assembly Constituency, district Dehradun as null and void and further to set aside the same. (b) Issue any further appropriate order or direction, which this Hon'ble Court may deem fit and proper on the facts and circumstances of the case. (c) Award the cost of the election petition to the petitioner.
(2.) THE petitioner is recorded in the electoral roll (voter) in the election of legislative assembly constituency 13-Laxman Chawk Assembly Constituency, district Dehradun, which was held on 21-2- 2007 and he is competent to present, sign, verify and contest election petition as per Section 81 of the Representation of People Act, 1951, therefore, he filed the present election petition. The election was held on 21-2-2007 and the result after counting was declared on 27-2-2007 and that the respondent was declared as returned candidate in the said election. The election petition was filed on 11-4-2007 within a period of 45 days, i.e. within time. In the election petition, the election petitioner had arrayed the returned candidate Mr. Dinesh Aggarwal as respondent. The main grounds of challenge raised in the election petition are that the respondent, his election agents and supporters with the consent of the respondent put up a hoarding in Patel Nagar, a ward of 13-Laxman Chowk Legislative Assembly Constituency, with the national flag showing the Ashok Chakra with 24 spokes of the wheel. It was done for furtherance of the prospects of the election of the respondent and in support of it, the photograph of the hoarding with the impression of the national flag and such a practice as adopted falls within the purview of the corrupt practices as provided under Section 123(3) of the Representation of People Act, 1951, therefore, the election of the respondent is liable to be declared null and void on this ground. The petitioner has also taken a ground that the appeal (Fatwa) issued by Mufti Mohammad Salman Saheb of Darul Ulema the senior most religious leader of Northern India was distributed on 20th February 2007 during late evening hours to late night in all Masjids situated in Laxman Chowk legislative assembly in the Masjids of Muslim colony of Lohianagar, Brahampuri, Turner Road, Clementown and Majra. This Fatwa was also circulated in other Masjids and Muslim colonies. Apart from this, the returned candidate the pamphlets printed in Samay Sakshya press Dehradun through Sri Sayyed Mahtab in his favour and the same were distributed and pasted on the walls of masjids together with Fatwa on the date and time and places as specified in paragraph 6-C of the petition. Another ground has been taken in the petition is that in support of the returned candidate sponsored by the National Congress Party, a news item was published in a daily newspaper "Amar Ujala" dated 16-2-2007 from Dehradun wherein photographs of the returned candidate along with the photograph of Sri Gulam Nabi Azad, the Hon'ble Chief Minister of Jammu & Kashmir were also published whereby an appeal was made on behalf of all the Corporators of Nagar Nigam Dehradun Laxman Chowk Assembly Constituency to come in an election meeting in favour of the respondent. The corporators of Laxman Chowk Constituency belong to Bhartiya Janata Party. In fact they never consented to issue appeal to attend the meeting in support of the respondent. Such an attempt is also a corrupt practice. Another ground of challenge raised in this election petition is that the returned candidate after the election process constructed a road in his legislative assembly constituency in front of Arya Inter College Subhash Nagar to the house of Col. Jairath. Yet another ground has been taken that an F.I.R. was also lodged by the administration and Tehsildar against the respondent. An affidavit has been filed in support of the election as well as in support of the allegations made by way of amendments made in the election petition. The election petition was presented property and security charges of Rs.2000/- were deposited by tender in the Registry.
(3.) THE election petition was resisted by the respondent- returned candidate by filing his written statement on 18-3-2008 wherein the allegations made in the election petition have been denied. It has been asserted by the respondent that the respondent neither himself nor his election agents put up any such hoarding at any place in furtherance of his prospects in the election as alleged in the petition. It has also been asserted that the newspaper report is the outcome of some false complaint by rival candidate and that the report of Tehsildar does not make out that alleged hoarding was made by using the national flag. It has been denied that the respondent or his agents are involved in procuring any appeal or Fatwa. It has further been denied that any such appeal was distributed by the respondent or his agents/workers with his consent in any area. The respondent has also denied that any such appeal as alleged was read out at the gate of masjid of Lohia Nagar. It has also been denied that any appeal or Fatwa was got distributed by the respondent in all Masjids, situated in Laxman Chowk constituency and specially in Masjids of Lohia Nagar, Turner Road and Majra and that any such Fatwa was got distributed by Dilshad Quereshi and Firoz Khan. It has further been denied that the respondent or his agents with the consent of respondent got distributed any leaflet allegedly printed in Samay Sakhya Press. It has also been asserted that the pleadings as raised in the election petition do not relate to any corrupt practices under the Act and that the election petitioner has not pleaded that the news was published with the consent of the respondent. It has also been denied that the respondent, his agents and workers with his consent procured the assistance of any government servants for furtherance of his election prospects. It has also been stated that it is wrong to say any construction work was initiated under the influence of the respondent after enforcement of code of conduct. It has been denied that the alleged road was constructed from Vidhayak Nidhi, but in fact the said road was constructed from the funds of P.W.D. It has also been denied that that respondent forged any entry in collusion with the alleged assistance of Engineers or the Junior Engineers. The respondent has also denied the allegations made in ground no. 6-G and asserted that the road in question near the residence of Koka Ram in Gandhi Gram was not constructed from Vidhayak Nidhi as alleged. It has been further stated that much before December 2007, a proposal had been made for the construction of the said road from Vidhayak Nidhi and that since the alleged road was not constructed from Vidhayak Nidhi, therefore, the report dated 3-1-2007 is false and frivolous. The respondent has thus denied all the allegations of corrupt practices leveled in the election petition. An affidavit has also been filed along with the written statement. On the basis of the pleadings of the parties, the following Issues have been framed:- ISSUES 1. Whether the returned candidate committed corrupt practices for furtherance of the prospects of his election and the same materially affect the election as mentioned in paragraph 6 and its ground nos. 6-A, 6-C, 6D, 6-E, 6-F and 6-G of the petition? If so, its effect? 2. Whether the election of the returned candidate is void and is liable to be set-aside on the ground mentioned in paragraph 6 and its ground nos. 6-A, 6-C, 6D, 6-E, 6-F and 6-G of the petition? 3. To what relief, if any, is the petitioner entitled?;


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