1
A.F.R.
Reserved
Civil Misc. Writ Petition No.35192 of 2010
Mohd. Kaisar
Versus
Chhabili Devi and others
Hon'ble V.K. Shukla, J.
Present writ petition has been filed by the petitioner Mohd. Kaisar, once
again questioning the validity of decision dated 29.05.2010 taken by the
Election Tribunal allowing application 112ga dated 26.11.2009 and directing for
summoning of the ballots and for recounting.
Brief background of the case, as mentioned in the writ petition, is that
election for the post of President of Nagar Panchayat Devraniya, Tehsil Baheri,
District Bareilly had been held on 03.11.2006 and the result of the said election
was declared on 07.11.2006. In the election so held, in all, there were 9
contesting candidates, including the petitioner. The petitioner claims to have
secured 2401 votes, whereas the election petitioner had secured 2396 votes.
Questioning the validity of said election, election petition was filed, being
election petition no.34 of 2006, by Smt. Chhabili Devi. In the said proceeding
an application under Order VII Rule 11 C.P.C. for quashing of the election
petition had been filed. The Election Tribunal proceeded to pass order on the
said application that the same was not at all liable to be allowed. The matter
travelled up to this Court in the shape of writ petition No.19136 of 2008, and
this Court vide its judgment dated 02.05.2008 dismissed the said writ petition,
noting therein that the petitioner had not filed written statement till that date; he
should file his written statement. Thereafter, written statement was filed and
replica was also filed to the said written statement. In the election petition so
filed, in all, 12 issues were framed. In support of the averments made in the
election petition three witnesses were examined by respondent No.1 and two
witnesses were examined from the side of the petitioner. Said election petition
was posted for hearing on 26.11.2009. On said date an application 112-gha
was filed by respondent No.1 for calling of the record from the election office
with regard to election in question and for a direction for recounting of ballots.
Against the said application objections had been filed and this document was
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numbered as 114-gha; counter affidavit was also filed and the same was
numbered as 116-ga. Said application had been allowed on 15.12.2009,
directing for summoning of the election papers and for recounting of the ballot
papers and straightaway for reserving the judgment. Said order dated
15.12.2009 was assailed before this Court in writ petition No.304 of 2010,
Mohd. Kaisar vs. Chhabili Devi and another, and this Court on 11.01.2010
proceeded to pass order by quashing the order dated 15.12.2009 and
directives were given to reconsider the application for recounting and taking
appropriate decision in accordance with law. Relevant extract of the said
judgment is being extracted below:
“Recount of votes could be ordered very rarely and on
specific allegation in the pleadings in the Election Petition that
illegality or irregularity was committed while counting. The petitioner
who seeks recount should allege and prove that there was
improper acceptance of invalid votes or improper rejection of valid
votes. If only the Court is satisfied about the truthfulness of the
above allegation, it can order recount of votes. Secrecy of ballot
has always been considered sacrosanct in a democratic process of
election and it cannot be disturbed lightly by bare allegations of
illegality or irregularity in counting. But if it is proved that purity of
elections has been tarnished and it has materially affected the
result of the election whereby the defeated candidate is seriously
prejudiced, the Court can resort to recount of votes under such
circumstances to do justice between the parties.
Now facts of the present case are being tested on the touch
stone of the principle which has been settled by Full Bench of the
Court as well as by Hon’ble Apex Court noted above.
In the present case earlier as to whether there existed
material facts in the election petition or not, the matter had travelled
up to this Court. This Court on 02.05.2008 while deciding the writ
petition took the view that this Court did not find any illegality in the
view taken by the Election Tribunal and the facts which were there
in the election petition were sufficient and constituted material facts,
on which material particulars were also given. The facts regarding
76 voters allowed to participate at both places and 21 dead
electors, who were shown to have cast their votes, would constitute
material facts. It was also mentioned in the said judgment that
these facts would constitute material and basic facts, which were to
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be proved at the trial. The fact of the matter is that three witnesses,
namely, Chandra Sen, Abdul Hamid and Maiku had been examined
from the side of the election petitioner, and two from the side of the
present petitioner, namely, the petitioner himself and Sharif Ahmad.
The aforesaid election petition was posted for hearing on
26.11.2009, and then an application was moved for summoning the
entire records for effective adjudication of the election petition.
Against the said application objections had been filed along with
counter affidavit. Said application has been allowed.
The Election Tribunal in the present case proceeds to
mention in paragraph 12 of the judgment that in paragraphs 6 to 12
of the election petition detail facts have been mentioned in the way
and manner in which irregularities had been committed and the
election petitioner was declared elected by 11 votes and even in the
garb recounting ultimately election petitioner was got defeated by
five votes. The Election Tribunal then has proceeded to note down
the facts as mentioned in paragraphs 6 to 12 of the election petition
in paragraphs 13 to 19 of the judgment and nothing beyond the
same. In paragraph 20 of the impugned judgment, it has been
mentioned that all these facts had been mentioned in application
112-ga, which had been moved for recounting supported by
affidavit of Chandra Sen, husband of election petitioner. Thereafter,
Election Tribunal has proceeded to note down the details averred in
the objection and the facts mentioned in the affidavit. In paragraph
26 of the judgment, the averments mention in paragraph 12 of the
election petitionj has been reiterated on oath, and in addition to it, it
has been averred that returning officer was got changed and undue
pressure was got exerted by Wafur Rehman and Afaur Rehman
and got the result declared. In paragraph 27 arguments raised by
the elected candidate has been noted, then it has been mentioned
that election petitioner has filed her affidavit, her husband
Chandrasen has also filed affidavit, and has also been cross
examined at length. In paragraph 28 of the judgment, it has been
mentioned, that arguments have been advanced that
contampareous evidence is not on record. Thereafter, it has been
mentioned that in the cross examination of Chandrasen, it has
come that he made repeated complaint, but the same went
unheeded, and it is accepted fact, that three letters were sent by
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fax after 06.04.2006 onwards. Election Tribunal, thereafter, has
proceeded to note down the provisions of the Municipalities Act and
the Full Bench judgment of this Court. In paragraphs 32 and 33 of
the impugned order, Election Tribunal has proceeded to mention
that in paragraphs 6 to 12 of the election petition the circumstances
in detail have been set out. Smt. Chhabili Devi has given her
affidavit. Sri Chandrasen has submitted his affidavit and has been
cross examined at length. Sri Abdul Hamid has given his
contamperous evidence, by stating that election petitioner was
declared elected by eleven votes,but by putting undue pressure of
Bafaur Rehman, Sri J. S. Mathur declared that election petitioner,
instead of 2406 votes has polled 2396 votes and petitioner instead
of 2395 votes has polled 2401 votes. In paragraph 33 of the
judgment, statement of petitioner and Sharif Ahmad have been
dealt with. Thereafter, judgments have been referred to in
paragraphs 34 to 39 and the proposition of law laid therein. In
paragraph 40 of the judgment Tribunal has proceeded to mention
that what would be the impact of non-production of election in
witness box, is not required to be answered at this stage. Again in
paragraphs 41 and 42 judgments have been referred to, and then
the sum and substance of said judgment and the principle noted
therein has been noted, keeping in view the judgment.
In the present case most surprising feature of the case, as is
reflective from paragraphs 44, 45, 46 and 47 of the impugned order,
is that the Election Tribunal has again proceeded to mention in
paragraph 44 of the judgment that there is evidence on oath of
election petitioner, that she was declared elected by 11 votes, at
said point of time Ataur Rehman, local M.L.A. And Chairman,
Minorities Financial Corporation, and his brother exerted undue
pressure, in the garb of recounting , got her declared as having lost
the election by five votes. In paragraph 45 of the judgment, again
again Election Tribunal has reiterated the facts that in support of
material facts mentioned in paragraphs 7 to 12 of the election
petition, there is affidavit of Chhabili Devi. Affidavit of Chandrasen is
there, with cross examination. There is supporting evidence of
Abdul Hamid. In paragraph 46, the Election Tribunal proceeds to
mention that at this stage only prima facie satisfaction has to be
recorded qua existence of credible ground, that for effective
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adjudication of election petition, inspection and recount is
imperative. Election Tribunal proceeds to mention that in spite of all
these alleged irregularities, there is difference of five votes. In
paragraph 47 of the judgment, Election Tribunal proceeds to
mention that the Election Tribunal is satisfied that the averments,
which have been mentioned in application 112-ga, with affidavit
113-ga, counter affidavit 118-ga, and the oral evidence of
Chandrsen and Abdul Hamid is there, no decision can be taken qua
the facts spelled out in cross examination, but for effective
adjudication, documents are imperative to be called for.
Election Tribunal at one place proceeds to mention that on
the basis of cross examination, whatsoever, evidence is there, on
the same he cannot give any opinion and it would be expedient to
summon the record in the ends of justice. Cross examination
portion has been appended before this Court and it ought to have
been taken into consideration. The cross examination of the
witnesses of the election petitioner clarified the factual situation as
mentioned in the examination-in-chief, Election Tribunal has
conveniently avoided to consider the cross examination portion
and the statement of Chadnra Sen specially at page 79, 80 and 81
of the paper book. The Election Tribunal while forming the opinion
as to whether from the material facts which had been pleaded,
prima facie there existed cogent evidence to direct for recounting,
ought to have discussed the said statements, the way and manner
in which result has been materially affected, the point of time when
irregularities had been committed in the counting of votes,
substantiating the same by giving details of polling stations,
counting centres, tables, round of counting of votes in relation to
which alleged irregularities had taken place. The Election Tribunal
in the present case has not at all undertaken requisite exercise, as
to what was the prima facie cogent evidence which prompted him
to pass the order of recounting. Reasons for forming prima facie
opinion, is not at all exhibited, inasmuch as mere mention has been
made of the statement, the affidavit and has proceeded to mention
that he was satisfied with the discussion and evidence available on
record, totally ignoring the cross examination portion. As requisite
exercise is lacking and missing, the order impugned is not at all
approved of.”
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Pursuant to the judgment passed by this Court, matter was again taken
up by the Election Tribunal and again orders have been passed for summoning
of ballots and for recounting of votes polled at the election in question. At this
juncture present writ petition has been filed.
Counter affidavit has been filed on behalf of respondent No.1. Notice to
proforma respondents has not been issued in the present case, and with the
consent of adversary parties, present writ petition is being taken up for final
hearing and disposal.
Sri K.N. Tripathi, Senior Advocate, assisted by Sri Chandan Kumar,
Advocate, appearing in support of the writ petitioner, assailed the validity of the
order passed by Election Tribunal, on the ground that the earlier directives
issued by this Court have been totally ignored and without there being any
cogent material in support of the purported pleadings, merely on surmises and
conjectures in the name of purity of election, order impugned has been passed,
as such the order passed is unsustainable and is liable to be quashed.
Countering the said submissions, Sri S. K.Verma, Senior Advocate, assisted
by Sri Sidharth Verma, Advocate on the other hand, contended that in the present
case, in the interest of justice, as purity of election has to be ensured, requisite
exercise has been directed to be undertaken simultaneously maintaining the
secrecy of ballot also, and then orders have been passed, in such view of the
matter with the opinion formed, no interference should be made.
This Court, at the earlier point of time when matter had travelled to this
Court, had clearly ruled that recounting of votes should be ordered rarely and
on being satisfied with the allegation in the pleadings of the election petition
and evidence adduced on record that illegality or irregularity was committed
while counting of votes. Election Petitioner seeking recounting will have to
allege and prove that there was improper acceptance of invalid votes or
improper rejection of valid votes. Only in the contingency if the Court satisfies
itself about the truthfulness of the averments mentioned in the election petition,
then the order of recounting can be passed. Secrecy of ballots has always
been considered sacrosanct in democratic process of election and it cannot be
disturbed lightly by bare allegations of illegality or irregularity in counting . But if it
is proved that purity of elections has been tarnished and it has
materially affected the result of the election whereby the defeated candidate
is seriously prejudiced, the Court can resort to recount
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of votes under such circumstances to do justice between the parties.
In the present case, entire emphasis from the side of election petitioner
has been that in the direction of maintaining purity of election on the basis of
pleadings available and on the basis of evidence adduced, on prima facie case
being made out, orders have been passed directing for summoning of the
ballots and for recounting.
Purity of election has always been given precedence, and it is task
before the Election Tribunal to see and ensure that the purity of election
process needs to be preserved and unpolluted so as to achieve the
predominant goal of democracy that only such incumbent should represent the
constituency who has been chosen by majority of the electors. Hon’ble Apex
Court in the case of A. Neelohithadasan Nadar vs. George Mascrene and
others, 1994 Supp (2) SCC 619 has taken the view that existence of the
principle of secrecy of ballot must yield to the principle of purity of election in
larger public interest. Paragraphs 10, 11, 12, 13 and 14 of the judgment being
relevant are quoted below:
“10. The existence of the principle of “secrecy of ballot” cannot be
denied. It undoubtedly is an indispensable adjunct of free and fair
elections. The Act statutorily assures a voter that he would not be
compelled by any authority to disclose as to for whom he has
voted, so that he may vote without fear or favour and free from
any apprehension of its disclosure against his will from his own
lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh
Tohral. But this right of the voter is not absolute. It must yield to
the principle of “purity of election” in larger public interest. The
exercise of extrication of void votes under Section 62(4) of the
Act would not in any manner impinge on the secrecy of ballot
especially when void votes are those which have to be treated as
no votes at all. “Secrecy of ballot” principle presupposes a validly
cast vote, the sanctity and sacrosanctity of which must in all
events be preserved. When it is talked of ensuring free and fair
elections it is meant elections held on the fundamental foundation
of purity and the “secrecy of ballot” as an allied vital principle. It
was observed by this Court in Raghbir Singh case’ as follows:
(SCR p. 1320: SCC p. 68, para 23)
“Secrecy of ballot though undoubtedly a vital principle for
ensuring free and fair elections, it was enshrined in law to
subserve the larger public interest, namely, purity of election for
ensuring free and fair election. The principle of secrecy of ballot
cannot stand aloof or in isolation and in confrontation to the
foundation of free and fair elections, viz., purity of election. They
can coexist but as stated earlier, where one is used to destroy the
other, the first one must yield to principle of purity of election in
larger public interest. In fact secrecy of ballot, a privilege of the
voter, is not inviolable and may be waived by him as a
responsible citizen of this country to ensure free and fair election
and to unravel foul play.”
11. In view of the above it is the settled position that out of the
two competing principles, the purity of election principle must
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have its way. Section 94 of the Act cannot be pressed into service
to suppress a wrong coming to light and to protect a fraud on the
election process.
12. That both the election petition and recrimination petition were
dealt with on the principle of “purity of election” is not in dispute.
The approach of the High Court on the subject on the
commonality of the attack also cannot be questioned. But what
was questioned by Mr Prashant Bhushan, as reiterated in his
written submissions of 14-9- 1993, was that the High Court was
not correct in allowing examination of marked copies of electoral
rolls and counterfoils without any evidence or material in support
of the plea for inspection and that the High Court allowed the
inspection casually without inviting a written application or even
by a written order. It was submitted that except for pleadings in
the election petition regarding void voting, there was no cause
pleaded to permit the election papers to be thrown open for
inspection and this exercise was termed by learned counsel as
‘fishing or roving’. Rule 93 of the Conduct of Election Rules,
1961, provides for documents which shall not be opened and
their Contents inspected by, or produced before, any person or
authority except under the orders of a competent court. On the
basis thereof it was maintained that by a string of judgments of
this Court it has been ruled that inspection could only be allowed
when two conditions are satisfied:
1. The material facts on the basis of which inspection of
documents is sought, must be clearly and specifically pleaded;
and
2. The Court must be satisfied on evidence, even if in the form of
affidavit, that is necessary to alow inspection in the interest of
justice.
Support for these principles was sought from Ram Sewak Yadav
v. Hussain Kamil Kidwai2, Hariram v. Hira Singh3, R. Narayanan
v. S. Semmalai4, Jagjit Singh v. Giani Kartar Singh5, Jitendra
Bahadur Singh v. Krishna Behari6 and other decisions of the like.
13. But by and large these are cases where there was a claim for
recount. In contrast the instant case is of double voting which has
specifically been pleaded in the election petition filed on 29-7-
1991 supported by affidavit and the names of the voters have
been supplied in the lists annexed thereto. The appellant had
filed recrimination petition pleading that there were several other
cases of double voting and reception of invalid votes in favour of
the election petitioner. This written statement-cum- recrimination
petition was filed on 10-9-1991. Issues were framed on 20-9-
1991. The election petitioner on 26-9-1991 was allowed to amend
the Election Petition so as to include 10 more cases of double
voting. The corresponding amendment application filed by the
appellant for taking into account details of double voting having
taken place in another neighbouring constituency was rejected by
the High Court for it was based on a new charge. The second
amendment application of the election petitioner was allowed on
7-10- 1991 so as to include 23 more cases of alleged double
voting. It is at that stage that is on 7-10-1991 that the Court
permitted inspection of the counterfoils since several double
voters had been summoned for the following day to appear on 8-
10-1991 and subsequent days, on the oral prayer/application of
both the election petitioner and the appellant. The court
apparently took into account that since witnesses were to be
examined on the question of their double voting and were
expected to take a positive stand, it would become necessary to
corroborate or confront them with the counterfoils of the ballot
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papers issued to them which purported to have been signed or
not by them, in order to save time lest examination of the
witnesses be time consuming. The Court allowed inspection of
the roll and counterfoils in order to facilitate evidence of the
witnesses on the date of their appearance, which was the
following day. The suggestion no doubt was oral but the Court
seemed to agree with the suggestion and inspection was
permitted to both parties in the presence of the Registrar. The
commonality of the approach of the parties on the question of
double voting must have clearly goaded the Court to adopt such
measure to facilitate quick trial. It is the case of the election
petitioner that the counsel for both the parties inspected the
counterfoils on 7-10-1991 in the Registrar’s room as also on
subsequent days, even though there was no written application
made and there was no formal written order of the Court. Yet the
inspection was open to both the parties without any objection
having ever been raised by the appellant. In the facts and
circumstances, we fail to see how the principle of secrecy of
ballot can be imported to question the power of the Court to orally
allow inspection in its endeavour to eliminate the impurity in
elections, the opportunity provided having been availed of without
demur by both parties. In this situation, it is difficult for us to
digest the argument that here the High Court proceeded to allow
inspection without being satisfied on evidence, even in the form
of affidavit, that it was necessary to allow inspection in the
interest of justice. Since the names of the voters who were
alleged to have double voted, had specifically been pleaded in
the election petition (as amended from time to time) and the
recrimination petition, it was necessary to correlate their names
with the electoral rolls and the counterfoils of the ballot papers so
that in case of double voting or impersonated voting, the impure
element in the election process could be identified and retrieved
from the election package. The primary purpose thus was to
purify the electoral process and not to hunt or hound the voter’s
choice, when exercised validly and freely. It is for that purpose
that the Court, in the interest of justice, to facilitate a quick trial
permitted the parties to inspect beforehand the records but after
the framing of the requisite issues arising from the pleadings of
the parties and not earlier. This approach could not be termed as
permitting a ‘roving or fishing’ enquiry, as it is sometimes
described in cases of a claim for re-count. We are thus of the
view that the High Court committed no error in permitting such
inspection in the facts and circumstances. We must, however,
hasten to clarify that we should not be understood to approve of
the High Court giving oral directions in such serious matters
without insisting on a formal application setting out how a prima
facie foundation was laid for the grant of such relief.
14. Another argument put forth by Mr Prashant Bhushan was that
the pleadings in the election petition were insufficient to justify
inspection inasmuch as except for mentioning that there had
been double voting by 19 persons nothing else was stated about
the basis on which the election petitioner came to the conclusion
that these names, which apparently had appeared twice in the
electoral roll, belonged to one and the same person and that
those persons had in fact voted twice. It was also commented
that no material facts, in the form of affidavits by single persons
or polling agents alleging that they had seen and heard about
those persons having voted twice. was filed in support of the
petition. It is maintained that in the absence of evidence of these
particulars being pleaded as to the source of knowledge of
double voting it was dangerous to allow enquiring into such an
allegation on the bare allegation of double registration of votes
and possible double voting. We have pondered over this matter
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but regretfully do not accept the argument of the learned counsel.
If a name has been registered twice enabling a person to take the
advantage of voting in two different polling stations, Section 62
mandates that if he polls both these votes then both votes are
void. A void vote cast is a vote void ab initio. In the nature of
things the void taint in the election would have to be traced to the
election papers for without that bare oral evidence would be of no
use, and at best would be word against word, making application
of Section 62(4) welling impossible. If the election petitioner on
some information, material or otherwise is able to entertain the
belief that a particular voter, double registered, is known to have
voted twice, he can certainly plead to that fact on his own
entertained belief and need not ordinarily resort to giving details
of the sources of his information or knowledge or the
entertainment of his belief because registration of double vote is
by itself the starting point; the exercise of both votes being the
second. The election petitioner had specifically mentioned and in
clear-cut terms that 19 persons had double voted. The question
was not resoluble merely on oral evidence, whether they had or
had not, except to put those persons into the witness box, hear
their version and confront them with the election papers. The
sphere of enquiry at that stage is to the voting and not for
discovering the name of the person to whom the vote was cast.
That inevitably has to be found out after double voting or
impersonated voting has been found out leading to the new step
to trace them and nullify them. On the pleading of the parties as
such, on both sides, a case for inspection at the stage when it
was done had been made out. We thus find no error committed in
the approach of the High Court.”
Hon’ble Apex Court in the case of T.A. Ahammed Kabeer vs. A.A.
Azeez and others, AIR 2003 SC 2271, considered this aspect of the matter
vis-a-vis purity of the election and issuance of mechanical directions for
inspection/recounting. Paragraphs 26, 27, 28 and 29 of the judgment being
relevant are quoted below:
“26. The task before an Election Judge is ticklish. It is often urged
and also held that the success of a winning candidate should not
be lightly set aside and the secrecy of ballot must be zealously
guarded. On account of a rigid following of these principles the
election Courts are inclined to lean in favour of the returned
candidates and place the onus of proof on the person challenging
the result of election, insisting on strict compliance with the rules
of pleadings and excluding such evidence from consideration as
is in divergence with the pleadings. However, what has so
developed as a rule of practice should not be unduly stretched;
for the purity of the election process needs to be preserved
unpolluted so as to achieve the predominant goal of democracy
that only he should represent the constituency who has been
chosen by the majority of the electors. This is the purpose and
object of the election law.
27. Though the inspection of ballot papers is to be allowed
sparingly and the Court may refuse the prayer of the defeated
candidate for inspection if, in the garb of seeking inspection, he
was indulging into a roving enquiry in order to fish out materials to
set aside the election, or the allegations made in support of such
prayer were vague or too generalized to deserve any cognizance.
Nevertheless, the power to direct inspection of ballot papers is
there and ought to be exercised if, based on precise allegations of
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material facts, also substantiated, a case for permitting inspection
is made out as is necessary to determine the issue arising for
decision in the case and in the interest of justice. As held by the
Constitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai
and others, (1964) 6 SCR 238, an Election Tribunal has
undoubtedly the power to direct discovery and inspection of
documents within the narrow limits of Order XI of Code of Civil
Procedure. Inspection of documents under Rule 15 of Order XI of
Code of Civil Procedure may be ordered of documents which are
referred to in the pleadings or particulars as disclosed in the
affidavit of documents of the other party, and under Rule 18(2) of
other documents in the possession or power of the other party.
The returning officer is not a party to an election petition and an
order for production of the ballot papers cannot be made under
Order XI of Code of Civil Procedure. But the Election Tribunal is
not on that account without authority in respect of the ballot
papers. In a proper case where the interests of justice demand it,
the Tribunal may call upon the returning officer to produce the
ballot papers and may permit inspection by the parties before it of
the ballot papers which power is clearly implicit in Ss. 100(1)(d)
(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961.
This power to order inspection of the ballot papers which is apart
from Order XI Code of Civil Procedure may be exercised, subject
to the statutory restrictions about the secrecy of the ballot paper
prescribed by Ss. 94 and 128(1). However, the Constitution
Bench has cautioned, by the mere production of the sealed boxes
of ballot papers before the Election Tribunal pursuant to its order
the ballot papers do not become part of the record and they are
not liable to be inspected unless the Tribunal is satisfied that such
inspection is in the circumstances of the case necessary in the
interests of justice. AIR 1964 SC 1249
28. It is true that a recount is not be ordered merely for the asking
or merely because the Court is inclined to hold a recount. In order
to protect the secrecy of ballots the Court would permit a recount
only upon a clear case in that regard having been made out. To
permit or not to permit a recount is a question involving
jurisdiction of the Court. Once a recount has been allowed the
Court cannot shut its eyes on the result of recount on the ground
that the result of recount as found is at variance with the
pleadings. Once the Court has permitted recount within the well-
settled parameters of exercising jurisdiction in this regard, it is the
result of the recount which has to be given effect to.
29. So also, once the Court exercises its jurisdiction to enter into
the question of improper reception, refusal or rejection of any
vote, or the reception of an vote which is void by reference to the
election result of the returned candidate under Section 100 (1)(d)
(iii), as also as to the result of the election of any other candidate
by reference to Section 97 of the Act and enters into scrutiny of
the votes polled, followed by recount, consistently with its findings
on the validity or invalidity of the votes, it cannot refuse to give
effect to the result of its findings as to the validity or invalidity of
the votes for the purpose of finding out true result of recount
though the actual finding as to validity or otherwise of the votes by
reference to number may be at variance with the pleadings. In
short, the pleadings and proof in the matter of recount have
relevance for the purpose of determining the question of
jurisdiction to permit or not to permit recount. Once the jurisdiction
to order recount is found to have been rightly exercised,
thereafter it is the truth as revealed by the result of recounting that
has to be given effect to.”
12
This Court also in the case of Satendra Kumar Singh vs. State of U.P.
and others, 2010 (79)ALR 60, has taken the view that requirement of
maintaining secrecy of the ballot papers is sacrosanct and should not be
allowed to be violated on frivolous, vague and indefinite allegations and
recounting of votes should not be ordered by Election Tribunal on mere asking
by the election petitioner for the purpose of fishing out material to invalidate the
election in question. Principle of secrecy of ballot cannot stand aloof or in
isolation and in confrontation to the foundation of free and fair election viz.
purity of election. They co-exist , but where one is used to destroy the other,
the first one must yield to the principle of the purity of election in larger public
interest.
Parameters for recounting has been mentioned in detail in the earlier
round of litigation interse parties and the requisite extent of exercise to be
undertaken by Election Tribunal also has been specified therein, while passing
order of recounting and it has been clarified therein with a note of caution that
the said order should not be passed merely on the asking for. Maintaining
purity of election is the foundation of valid democracy, and on issue being
raised qua purity of election, election Tribunal is obliged to go into such
question as only purity of election predominant goal of democracy would be
achieved, and in case there is conflict between purity of election and the
secrecy of ballot, then the secrecy of ballot will yield to the principle of purity of
election in larger interest of the public, but in the garb of purity of election on
formal, vague and indefinite allegations recounting of votes cannot be ordered
by the Election Tribunal.
On above parameters order impugned is being examined. The order
impugned in the second round of litigation, wherein directives have been
issued for recounting proceeds runs from page 216 to page 242 of the paper
book. Page 216 to page 220 of the paper book deals with the array of parties
and up to paragraph 10 history of the case has been given. In paragraph 11,
Election Tribunal has proceeded to mention that the order dated 11.01.2010
has been perused and as per directives given therein application 112ga is
being decided. The Election Tribunal has, thereafter, proceeded to mention in
paragraph 11 that in paragraphs 6 to 12 of the election petition grounds have
been discussed as per which irregularities have been committed, and on
account of the said irregularities in spite of the fact that the election petitioner
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had been elected in the recounting, she was got defeated by five votes.
In paragraph 13 of the order impugned averments mentioned in
paragraph 6 of the election petition have been discussed. Similarly in
paragraphs 14, 15, 16, 17 and 18 of the order impugned, the averments
mentioned in paragraphs 6, 7, 8, 9, 10 and 11 of the election petition have
been reproduced. In paragraph 19 of the impugned order, election Tribunal has
proceeded to mention the illegalities alleged to have been committed in the
counting of votes. The election petitioner has been shown to have secured
2406 valid votes, whereas petitioner had secured 2395 votes, and thus election
petitioner claimed to have been elected by 11 votes. It has been noted that
thereafter Vafaur Rehman exerted undue pressure and got recounting done
and in place of 2406 votes, the election petitioner was shown to have received
only 2396 votes and the petitioner 2401 votes. It has been mentioned that
thereafter com plaint had been made to the State Election Commission as well
as District Election Officer, but in spite of the complaint being made votes were
not shorted out and recounting was not done and the petitioner was declared
elected.
In paragraph 20 of the impugned order, Election Tribunal has proceeded
to mention that all these facts have been mentioned in the application 112ga
and request has been made for summoning of the documents and for
segregation of ballot papers and for recounting.
In paragraph 21 of the order impugned objections moved by the
petitioner have been noted and in paragraph 22 of the impugned order, it has
been mentioned that the parties had been heard. Thereafter in paragraph 23 of
the impugned order statement made by Chandrasen Gangwar has been noted
and then in paragraph 24 it has been noted that affidavit of Mohd. Kaisar was
filed subsequently, then reference has been given of the counter affidavit
118ga/1 and 118ga/3. In paragraph 25 of the impugned order reference has
been given of the letter 4ka/12 to 4ka/19 in respect of voters whose names
have been shown on two places. In paragraph 26 of the impugned order
statement made on oath by election petitioner has been noted, and then in
paragraph 27 objections raised on behalf of the petitioner have been noted. In
paragraph 28 note has been made in respect of objections raised by
Chadrasen Gangwar in respect of contemporary evidence. In paragraphs 29
and 30 of the impugned order statutory provisions have been noted. In
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paragraph 31 defence of election petitioner has been accepted, then in
paragraphs 32 and 33 of the impugned order reference has been given of the
judgment dated 11.01.2010 passed by this Court and the principles laid down
therein have been noted. In paragraph 34 of the impugned order, Election
Tribunal has noted the finding of the judgment of this Court and the pre-
requisite conditions which are required to be complied with. In paragraph 35 of
the impugned order, Election Tribunal has proceeded to note the fact that
earlier election petitioner was declared elected, but subsequently, on pressure
being exerted, petitioner was shown to have been elected. In paragraph 36
objections raised on behalf of the petitioner have been noted, in paragraph 37
reference has been given of of the counting being done on two occasions. In
paragraph 38 reference has been given of the judgments relied upon by the
election petitioner, and then in paragraph 39 of the impugned order
conclusions have been drawn, and on the basis of such conclusions, judgment
has been passed. In paragraphs 40, 41, 42,43, 44, 45, 46 and 47, judgments
cited on behalf of the petitioner have been noted, and thereafter in paragraph
48, the issue raised have been taken up, and it has been mentioned that there
is no statutory prohibition that the Election Tribunal cannot pass order of
recounting even if prima facie case is made and cogent evidence is adduced
in support of the same.
The issue raised, in fact, has been considered and answered starting
from paragraphs 49 to 56 of the impugned order. In paragraph 49 of the
impugned order, Election Tribunal has noted that in paragraph 6 of the election
petition, specific averment is there in respect of undue pressure being exerted
and for change of Returning Officer, and denial of only undue pressure being
exerted has been made, but this fact has not been denied that earlier
Returning Officer Sri Devesh Mishra was got removed and was replaced by Sri
J.S. Musafir. Thereafter, in paragraphs 51, 52, 53 and 54 specific objection
raised by petitioner has been adverted to and dealt with.
In the present case, Election Tribunal has considered the pleadings and
has found that specific plea was there that Ataur Rehman, who was local
M.L.A. Of Ruling party and Chairman of the Minority Commission and his
brother Bafaur Rehman, both were present on the date of counting and on
account of pressure being exerted by them in the past, Returning Officer had
been changed and new Returning Officer had been inducted, who was from
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the same department, and who was acting on the dictates and directives of
Ataur Rehman. The Election Tribunal, in the present case has taken note of
this particular pleading and has taken note of the fact that the said pleadings
were fully substantiated by evidence on record, including the cross
examination and then has proceeded to pass order directing for summoning of
the ballots and for recounting in the second round of litigation aqs specifically
it was pleaded and supported by prima facie evidence that earlier result was
declared in favour of the election petitioner, then on pressure being exerted
result was manipulated. Reason for forming prima facie opinion has been
given, and then opinion has been formed in the direction of maintaining purity
of election, it is imperative to call for the records. Difference between prima
facie opinion and concluded opinion has to be kept in mind, and same, in fact,
has been kept in mind by the Election Tribunal seized of the matter. The
Election Tribunal seized of the matter, has authority to consider the pleadings
and evidence adduced in support of the same and then form opinion as to
whether purity of election in any way had been impaired or not. Here, Election
Tribunal has prima facie satisfied itself that the purity of election has been
impaired as political pressure has been exerted and on account of the same
change of Returning Officer has been there and said Returning Officer had not
been acting independently, and had been acting on the directives of Ataur
Rehman,being from his departmnent. Submissions made in the pleadings have
been supported by the statements made in the cross examination, and
shortcoming in the evidence sought to be pointed out by the petitioner before
this Court, cannot vitiate the formation of prima facie opinion, as it was not a
conclusive opinion. In the facts of the case as on the earlier occasion for want
of requisite exercise being undertaken by the Election Tribunal, matter had
been remanded back, but on the second time matter has been objectively
considered and prima facie opinion has been formed, which is in the direction
of maintaining purity of election, as such it cannot be said, in the facts of the
case, that the order of recounting has been passed merely on the asking of the
election petitioner. Here, in the present case full care has been taken to
maintain secrecy of the ballots also. In such a situation and in such
circumstances, the relief claimed cannot be accorded.
Consequently, writ petition fails and the same is dismissed.
09.07.2010
SRY
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