Prabhakar Rane vs Asnotikar Vasant Kamalakar And Anr. on 1/7/2002
S.R. Bannurmath, J.
1. This election petition is filed questioning the election of the 1st respondent-Sri Vasant Kamalakar Asnotikar to the Karnataka Legislative Assembly from No. 172, Karwar Assembly Constituency. The petitioner and the 1st and 2nd respondents had contested in the General Election for constituting the 11th Karnataka Legislative Assembly and all these three candidates had contested from No. 172, Karwar Assembly Constituency segment. The petitioner contested as the candidate sponsored by Bharatiya Janatha Party, the 1st respondent as the candidate sponsored by Indian National Congress and the 2nd respondent sponsored by Janatha Dal. According to the petitioner, he has been contesting from No. 172, Karwar Assembly Constituency since 1983. According to him, in the years 1983, 1985 and 1993 he contested as the Indian National Congress candidate and got elected. However, in the election of 1994 he lost the election due to Anti-Establishment Movement and division in the Indian National Congress in Karnataka. According to him, in that election it was the 1st respondent who got elected. Thereafter, in the present election of 1999 he again lost in the election. Further, according to him, he lost the election because of the corrupt practices carried out by the 1st respondent. Hence, the present petition.
2. The contention of the petitioner is that the segment No. 172 of Karwar Assembly Constituency comprises of approximately one lakh and twenty-one thousand and odd voters belonging to different castes and religions. Out of the different categories of castes, according to the petitioner, there are 16 Communities which have large number of voters and whose votes decide the fate of a candidate. These communities and their population are as follows:
Sl. No. Caste/Community Population
1. Maratha 26,000
2. Komarpath 16,000
3. Bhandari 14,000
4. Fisherman Gabit 5,500
5. Harikanth Fisherman 6,000
6. Padti 8,500
7. Muslim 7,000
8. Christian 5,000
9. Dalwajnma Brahim 5,000
10. Devali 5,000
11. Halakki Vakkal 5,000
12. Brahamin 4,000
13. Kunabi 4,000
14. SC/ST 3,000
15. Gunagi 3,000
16. Napith 2,500
And others 2,700
It is contended that these communities are tribal like in nature and are bound by their own laws. It is stated that these castes/communities live unitedly in particular areas in a group/community basis and are controlled by their Chiefs, Headsman as well as the Priests of their principal deity and whose words are the last law for them. It is further contended that if the Chiefs or the Priests of these communities mandate the community people to do or not to do certain things and those mandates must be obeyed by one and all and, if not, the individual will be practically excommunicated and has to suffer throughout his life because of want of help from the community people.
3. The petitioner contends that taking disadvantage of these community regulations and rules, the 1st respondent had arranged series of meetings either in their principal worshipping deity's temples or in their community halls and were mandated by the Priests and the Chiefs to vote in favour of the 1st respondent. This was totally a corrupt practice, according to the petitioner. Further, in furtherance of the same, it is contended that appeals to the voters of each of these communities on the basis of their castes and communities have been carried out systematically in the meetings so arranged as well as by publication of advertisements in a local newspaper called as "Karavali Munjavu". According to the petitioner, this is the only newspaper which is widely circulated and read by each and every person in Karwar District. He contends that series of appeals to various communities through their elders and prominent persons holding key posts in the Government and Congress (I) party (1st respondent's party) have influenced the voters to cast the votes in favour of the 1st respondent.
4. Analysing the vote pattern, it is submitted that the total number of voters was 1,21,395 out of which 74,256 votes were polled which is almost 61 per cent. The petitioner got 28,546 votes whereas the 1st respondent got 42,502 votes. Thus the difference between the votes obtained by the petitioner and the votes obtained by the 1st respondent was 13,956 votes. It is stated that the votes tainted by the corrupt practices were about 60 per cent. Hence, if the 1st respondent had not resorted to corrupt practices, according to the petitioner, he would have obtained more than what the 1st respondent got in his favour. As such, the declaration the 1st respondent as the winning candidate, because of these tainted corrupt practices, is illegal and is liable to be quashed and further, as the petitioner himself was the second highest polled candidate he may be declared as 'elected'.
5. In order to establish the contentions, the petitioner has examined 18 witnesses and got marked Exhibits P. 1 to P. 34. Out of these witnesses, P.W. 1 is the petitioner himself. P.W. 2-Ashok Ganapathi Bhat is the Assistant Commissioner, who was the Returning Officer of the election. P.W. 3-Gangadhar Hiregutti is the Managing Director and Editor of 'Karavali Munjavu' newspaper, who speaks about the publication of the advertisements. P.W. 4-Ashok Hasyagar is the Editor of the newspaper 'Karavali Munjavu'. P.W. 5-Kishore Kumar Ramdas Desai is an Advocate and President of Uttara Kannada District Consumers and Welfare Association and Secretary of Nagarika Hitarakshana Samithi, Karwar. P.W. 6-Mahabaleshwar is a Tax Consultant and Social Worker. P.W. 7-Kishore Raghunath Shajwadkar is an ex-serviceman and businessman and a voter belonging to Davara Gomanthaka Samaj Community. P.W. 8-Jack Michael Fernandis is a voter belonging to Roman Catholic Christian Community. P.W. 9-Ramesh Nagappa Gowda is a voter belonging to Hindu Halakki Vokkala Community and Secretary to Nagarika Vedike and Social Worker. P.W. 10-Santhosh Damodara Mal-shekar is a voter belonging to Komar Panth Community and President of Uttara Kannada Zilla Komara Panth Yuvakara Sangha. P.W. 11-Nagesh Vishnu Padelker is a voter belonging to Gabit Samaj. P.W. 12-Santhosh Shamba Kochrekar is a voter and belongs to Hindu Padthi Samaj. P.W. 13-Promod S. Hulawar is a voter and belong to Mahar, a Scheduled Caste. P.W. 14-Pandu Rona Harikant is a voter and belong to Meenugara Harikantha Community. P.W. 15-Nityananda Shantaram Joglekar is a voter and belongs to Hindu Bhandari Community. P.W. 16-Shantha Ganapathi Mahalay is a voter and belongs to Napitha Community. P.W. 17-Nanda Shiva Pagi is a voter and belongs to Pagi Community. P.W. 18-Thuva is a voter belonging to Gunagi Community.
6. It is to be mentioned here itself that the evidence of P.Ws. 7 to 18 in general is to the effect that their respective communities were under the control of their own Samajs or Organisations which had their elders who practically controlled day in and day out activities of their communities. All these witnesses specifically contend that the Community people cannot go against the wishes or mandates of the Samajs or Organisations' elders and, if anybody dares to do so, he would be inviting much trouble not only in his profession but also in his personal and social functions like marriage, death or birth in his family.
7. At this stage itself it is also to be mentioned that immediately after the filing of the election petition, the 1st respondent died in a tragic circumstance. When the fact of the death of the 1st respondent was brought to the notice of this Court, in terms of Section 116 of the Representation of People Act (hereinafter referred to as 'the Act') notice of death of the 1st respondent and calling upon any person interested in opposing contesting the election petition was issued. In pursuance of the same, one Smt. Subhalatha Vasant Asnotikar and one Anand Vasant Asnotikar, wife and son of the deceased 1st respondent had filed application to come on record in the place of the deceased 1st respondent. This application was contested by the petitioner on the ground of limitation.
8. Considering the rival contentions and the law in this regard, by the order dated 5-1-2001 this Court rejected the applications (LA. Nos. I and II) of the said persons on the ground that the same was barred by time and especially as the provisions of Section 5 of the Limitation Act are not applicable to the case of the present nature under the Act.
9. Thereafter, the evidence of the aforesaid witnesses came to be recorded which practically went unopposed as there is no cross-examination by any other respondents. It is also to be noted that, as the recording of evidence on behalf of the petitioner came to an end, one more application came to be filed by one Tulasidas Naik claiming to be a voter and interested in the same relief, viz., getting himself impleaded in this petition. However, following the ruling of this Court on I.A. Nos. I and II, these applications (I.A. Nos. IV and V) were also rejected by this Court on 22-1-2002 as barred by time. I am informed at the Bar that these orders were challenged in special leave petitions before the Hon'ble Supreme Court. But, the Hon'ble Supreme Court has dismissed the special leave petitions at this admission stage itself. As such, as stated earlier, the evidence on behalf of the petitioner has practically remained unchallenged and uncontroverted because of there being no cross-examination.
10. Learned Counsel for the petitioner taking me through various provisions of the Act especially Section 123(3) and (3-A) vehemently contended that, as demonstrated by the petitioner through oral and documentary evidence that there were systematic appeals to the voters on the basis of castes and communities through paper publications and advertisements, there were series of appeals to various communities through their elders holding key posts and belonging to Congress (I) Party, the party of the 1st respondent, holding various meetings by community people which attended by the 1st respondent wherein various services rendered by the 1st respondent were highlighted for probable and unequivocal support to the 1st respondent was obtained either by mandate or dictates issued by the community elders, Chiefs and Priests. This according to the petitioner amounts to corrupt practices coming within the mischief of Section 123(3) and (3-A) of the Act. Learned Counsel for the petitioner also highlighted taking me through the entire evidence regarding the castes and number of voters belonging to each of the 17 communities to contend that the petitioner has succeeded in demonstrating how the 1st respondent has influenced each of these community people to cast vote in his favour by using Community Chiefs, Heads of the Samajs and Priests. The learned Counsel has also relied upon the evidence of the Editor and Managing Director of the newspaper as well as production of the newspaper items - advertisements - to contend that the very fact of publication of these advertisements by which all these communities made through elders to support the candidature of the 1st respondent and practically issuing mandate to each of the entire community people amounts to corrupt practice. It is also contended that, as the evidence of the various voters belong to different communities indicate practically a decision was taken at the community meeting by the Heads of the communities and was imposed on the voters practically amounting to mandates or dictates with undisclosed threat of the consequences and not following the dictates. Thus, it is contended that all these votes even with moderate estimate of 20,000 were to be held to be void because of the corrupt practice and, if so, declare the number of votes secured by the petitioner would be apparently more than what was secured by the 1st respondent and as such not only the election of the 1st respondent is to be annulled but also the petitioner is entitled to be declared as successful candidate.
11. To emphasise his arguments, the learned Counsel for the petitioner has relied upon the following decisions:
2. Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, AIR 1996 SC 86 ;
3. Lalroukurig v. Haokholal Thangjom, (1969) 4 1 ELR 35 (SC) : 1969 UJ (SC) 12;
5. M. Chenna Reddy v. V. Ramachandra Rao and Anr., (1968) 40 ELR 390 : 1968(8) DEC 337 (SC);
7. Jamana Prasad Mukhariya v. Lachhi Ram and Ors., AIR 1954 SC 686;
8. T. Nagappa v. T.C. Basappa and Ors., ; and
12. Taking into considerations of the petitioner, this Court had framed the following issues for consideration;
1. Whether the petitioner proves that the 1st respondent or his agent or any other person with the consent of the 1st respondent or his election agent appealed the voters of No. 172, Karwar Assembly Constituency to vote or refrain from voting on the ground of his religion, caste and community which amounts to corrupt practice as per Section 123(3) and (3-A) of the Act?
2. Whether the petitioner proves that the election of the 1st respondent is liable to be declared as null and void on that count corrupt practice and whether the petitioner is entitled to be declared as elected from No. 172, Karwar Assembly Constituency to the Karnataka Legislative Assembly?
3. What order?
13. Before going into the merits of the case it would be necessary to keep in mind the law declared by the Apex Court in respect of the pleadings, evidence, its appreciation, etc., in election petition cases. This is more so to be considered and strictly followed especially in the present case wherein the petition and the evidence adduced by the petitioner has remained practically unchallenged.
14. A few of the well-settled judgments are as follows:
3. Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil, .
15. In all these and other cases the settled law and the principles laid down are as follows:
(1) That the charge of corrupt practice is to be proved like a criminal charge and that the same standard of proof as is required in criminal cases is to be applied in the testing of evidence of corrupt practice in an election petition.
(2) The allegations of corrupt practices must be established by clinching and impeachable evidence.
(3) Vague allegations and discrepant evidence may only create a doubt but then the charge of corrupt practices cannot be held to be proved on mere lurking suspicion or doubt.
(4) Requirement of proof of corrupt practices is higher and is confined to restrict legal evidence.
(5) The proof of corrupt practice vitiates the election by itself. It is not necessary to prove in such a case, that it has materially affected the election. It is therefore necessary that such corrupt practices must be clearly alleged and cogently established.
16. Keeping in view these principles let me consider the case on hand.
17. As noted earlier the only grounds of challenging the election of the respondent 1 are the corrupt practices as per Section 123(3) and (3-A) of the Act.
Section 123(3) reads as follows:
"The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, such as the national flag or the national emblem for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate".
18. The petitioner has also invoked provisions of Section 123(3-A).
This provision defines another type of corrupt practice. It states the promotion of or attempt to promote, feeling of enmity or hatred between different classes of the citizens of India on ground of religion, race, caste, community or language, by candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(a) The pleadings and the evidence of the petitioner in this regard are the series of appeals to various communities through their leaders holding key posts and all belonging to the political party of respondent 1;
(b) Holding of various meetings by the community Heads to declare support in favour of respondent 1 and in most of these meetings respondent 1 was present;
(c) Publications of advertisements in the only local and much read daily newspaper called 'Karavali Munjavu' by various communities, in which systematic appeals were made by very prominant persons of each community who also hold important posts either in the Government service or in the local bodies all belonging to the party of the returned candidate.
19. Again, before going into the evidence in this regard it would be necessary to analyse the provision of Section 123(3) which is in four parts:
(a) There should be an appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent;
(b) To vote or refrain from voting for any person;
(c) On the ground of his religion, race, caste, community or language;
(d) For the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
It is to be noted that so far as (a) and (b) are concerned there is enough material produced by the petitioner, both oral and documentary, to show that there were series of appeals by various religious/community leaders or by prominent persons of the community holding key posts to vote in favour of the respondent 1.
20. The petitioner has not only produced series of advertisements, which appeared in the local newspaper at Exs. P. 2 to P. 11 and P. 32, but also has examined two editors as P.Ws. 3 and 4.
21. These editors have spoken to about the circulation of the newspaper, its wide acceptance and reading in the Karwar district etc. They also have spoken to placement of these advertisements by various communities showing their support in favour of respondent 1. They have also spoken to the proceedings initiated by the Returning Officer in respect of these advertisements and the orders passed in that regard. Apart from these two persons connected with the newspaper, the petitioner has also led evidence of P.W. 5, 15, independent voters about these advertisements and the proceedings initiated by the returning officer.
22. In my view there is sufficient and cogent evidence to hold that there were series of advertisements published in the newspaper by various communities showing their support in favour of respondent 1.
23. But for the purpose of the Section 123(3), mere placing of advertisements in the newspaper by itself cannot be said to be an act of corrupt practice. Advertisements are part and parcel of election campaigning. To bring this act within the purview of Section 123(3) of the Act, something much more is required. This is clear from the analysis of the provision I have already noted.
24. These appeals or advertisements should be not only to vote or refrain from voting for any person but also appeal should be on the ground of his religion, race, caste, community or language and thereby to further the prospects of the election of that candidate will be bright or it will prejudicially affect election of other candidates.
25. As such the petitioner is required to show that these appeals or advertisements were by respondent or his agent or by any other person with the consent of respondent or his election agent, and this appeal was to vote or refrain from voting for petitioner and most importantly these appeals were made on the ground of his religion, race, caste, community or language,
26. On going through the evidence of the witnesses and the alleged appeals through advertisements no doubt it is clear that they were made, showing the support of individual communities in favour of respondent 1. But there is no positive evidence to show that these advertisements were by the candidate or his agent. Except vague statements made before this Court that it was the respondent 1 who paid for the same, there is no indication even to show or prove such thing.
27. In fact the evidence of the editors themselves if seen along with the documentary evidence especially Exs. P. 27 to P. 31 the statement filed by the editor to the returning officer as per the mandatory requirement to show the expenses, there is nothing to indicate that these advertisements were placed by the candidate or his agent. In this regard an attempt has been made by the petitioner to say that the same were financed by the respondent either by himself or through his supporters.
28. It is to be noted that when the documentary evidence, Exs. P. 27 to P. 31 belies this statement, in my view the vague allegations cannot be excepted.
29. Even otherwise for a moment for the sake of argument if it is accepted that these advertisements were placed by the supporters of the returned candidate, that by itself will not bring them within the purview of Section 123(3). Because the petitioner has further to prove the other necessary ingredient which is the appeals or advertisements were to vote in favour of the returned candidate on the ground of his religion, caste, community or language.
30. On going through each of these advertisements minutely and in detail, I do not find such appeal to vote in favour of the returned candidate on the ground of his religion, race etc. These advertisements were placed by a number of communities and castes through their organisations to show their support in favour of the returned candidate but there is no appeal to vote in his favour on the ground of his religion, caste etc.
31. At this stage itself it is relevant to note that even appealing to the voter by any religious organisation by itself is not a corrupt practice.
32. Considering this aspect Honourable Supreme Court in the case of Ram Dial v. Sant Lal, , has observed thus:
"A religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency; but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speech, leave no choice to the persons addressed by him, in the exercise of their electoral rights".
33. In the present case on going through the advertisements by the various groups or communities or even by their leaders does not indicate that they were mandates or dictates of the community leaders to vote in favour of the returned candidate on the ground of his caste, religion etc. What all that is stated in these advertisements is that the communities feel grateful to the services done by the returned candidate earlier and as such they show their support in his favour and nothing more.
34. Added to this what is relevant is to see whether these appeals were on the ground of "his" religion or caste etc. In my view the stress is more on the word "his".
35. As observed by the Apex Court in the case of Dr. Ramesh Yesh-want Prabhoo v. Prabhakar Kashinath Kunte and Ors., :
"There can be no doubt that the word "his" used in Sub-section (3) must have significance and it cannot be ignored or equated with the word 'any' to bring within the net of Sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of Sub-section (3) and this is the only manner in which the word 'his' used therein can be construed. When the appeal is to vote on the ground of 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. The first is a positive appeal and the second a negative appeal. There is no ambiguity in Sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under Sub-section (3)".
"Sub-section (3) in substance forbids appeal for votes for any candidate on the ground of 'his' religion and appeal to refrain from voting for any other candidate on the ground of the religion of that other candidate. Obviously the purpose of enacting the provision is to ensure that no candidate at an election gets votes only because of his religion and no candidate is denied any votes on the ground of his religion. This is in keeping with the secular character of the Indian polity and rejection of the scheme of separate electorates based on religion in our constitutional scheme. An appeal of the kind forbidden by Sub-section (3) based on the religion of a candidate, need not necessarily be prejudicial to public order and, therefore, the further element of likelihood of prejudice to public order is necessary on account of which it is not implicit in the provision".
36. In my view the aforesaid dicta laid down by the Honourable Supreme Court is most relevant in the present case. It is not the case of the petitioner that various religious communities or organisations and their leaders have made the appeal through these advertisements to the voters on the basis of either the religion of petitioner or that of the respondent.
37. In this regard the learned Counsel for the petitioner tried to contend that the word 'his' cannot be read in isolation or as applicable only to the word 'candidate'. It is contended that under the scheme of Section 123 three types of appeals with reference to the religion or caste or community etc., are contemplated. According to the petitioner this appeal may be with reference to the religion of the candidate, religion of the election agent or the religion of any other person with the consent of the candidate or his agent. I am afraid to accept this contention as far-fetched especially in the light of the clear law laid down by the Honourable Supreme Court in Ram Dial's case, supra. In my view the word 'his' has to be read in isolation and only in connection with the religion, caste, community etc., of either petitioner or the respondent. It cannot be used universally that is to say religion, caste, community etc., of any and every person who is making the appeal.
38. In the present case, in my view since the advertisements were neither made in favour of the petitioner nor the respondent referring to the individual religion, caste, community etc., but was an appeal made by organisations of various castes and communities through their leaders, the same cannot and would not be falling within the necessary ingredient of Section 123(3) of the Act.
39. As observed by the Honourable Supreme Court in the case of Baburao Patel v. Dr. Zakir Hussain, ,
"Mere canvassing in favour of a candidate at an election cannot amount to interference with the free exercise of the electoral rights. If the leader of the party indicates to the members of his party for whom to vote, he is merely canvassing which he is entitled to do in a democratic set up".
If in the above marked sentence for the words 'leader of the party', the words 'leaders of the organisation or religious caste, community etc.' is substituted or added, in my view the argument in this regard addressed by the learned Counsel for the petitioner fails and cannot be accepted.
40. As such I am constrained to hold that the petitioner has failed to prove the allegation of corrupt practice as mentioned in Section 123 especially under Sub-section (3) of the Act.
As such in my view the petitioner has totally failed to bring home the charge of corrupt practice under Section 123(3) beyond reasonable doubt and on this count alone the petition must fail and liable to be rejected.
41. Even otherwise considering the other argument that the respondent had carried a systematic appeal by arranging community or caste meetings with the help of the leaders of each community or the priests or the religious/community heads is concerned, this does not fall within the parameters of Section 123(3). If any argument is available, the same may fall under Section 123(2), but since there are no pleadings in the election petition as a ground of corrupt practice falling under that section, petitioner cannot raise the same only during argument. As such the evidence and argument of undue influence if any cannot be considered as they are not pleaded in the election petition.
42. Similarly, insofar as argument regarding Section 123(3-A) is concerned, it is the act of promotion of, or attempt to promote a feeling of enmity or hated between different classes of the citizens of India on the ground of religion, race, caste, community or language, by candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate, is concerned again the stress given is on promotion of or attempt to promote feeling of enmity or hatred between different classes or communities or castes. There are no pleadings much less evidence adduced in this regard. In this regard it is contended that by arranging the meetings in the community halls or temples of each of the community, wherein the achievements of the returned candidate were highlighted and even promises were made for future help if elected and especially when the respondent was present in most of these meetings, according to the petitioner this was an act to promote the candidature of the respondent only on the ground of caste, religion, community etc.
43. In my view this again does not fall within the purview of Section 123(3-A) amounting to promoting or attempt to promote communal hatred.
44. I have gone through all the decisions referred to by the learned Counsel for the petitioner in support of his contentions and in my view none of them are applicable to the facts and circumstances of this case, as in all the decisions referred to, the challenge and the evidence was in respect of appeals made by the candidate or his agent or by any other person with the consent of the candidate or his agent to vote or refrain from voting on the ground of religion, race, caste, community or language, of either the returned candidate or the losing candidate. As earlier discussed in the present case since the petitioner has failed in this regard in my view it is not necessary to discuss each of the decisions and their applicability.
45. In the result, I hold that the petitioner has failed to prove his case and as such the election petition fails and same is liable to be dismissed.
Hence, I hereby dismiss the election petition as devoid of merits with cost.