{"id":59080,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-kaisar-vs-chabilli-devi-and-others-on-9-july-2010"},"modified":"2018-12-26T01:40:10","modified_gmt":"2018-12-25T20:10:10","slug":"mohd-kaisar-vs-chabilli-devi-and-others-on-9-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-kaisar-vs-chabilli-devi-and-others-on-9-july-2010","title":{"rendered":"Mohd. Kaisar vs Chabilli Devi And Others on 9 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Mohd. Kaisar vs Chabilli Devi And Others on 9 July, 2010<\/div>\n
                                                                                   1\n\n                                                                             A.F.R.\n                                                                          Reserved\n\n\n                    Civil Misc. Writ Petition No.35192 of 2010\n                                 Mohd. Kaisar\n                                      Versus\n                             Chhabili Devi and others\n\n\nHon'ble V.K. Shukla, J.\n<\/pre>\n
      Present writ petition has been filed by the petitioner Mohd. Kaisar, once
\nagain questioning the validity of decision dated 29.05.2010 taken by the
\nElection Tribunal allowing application 112ga dated 26.11.2009 and directing for
\nsummoning of the ballots and for recounting.\n<\/p>\n
      Brief background of the case, as mentioned in the writ petition, is that
\nelection for the post of President of Nagar Panchayat Devraniya, Tehsil Baheri,
\nDistrict Bareilly had been held on 03.11.2006 and the result of the said election
\nwas declared on 07.11.2006. In the election so held, in all, there were 9
\ncontesting candidates, including the petitioner. The petitioner claims to have
\nsecured 2401 votes, whereas the election petitioner had secured 2396 votes.
\nQuestioning the validity of said election, election petition was filed, being
\nelection petition no.34 of 2006, by Smt. Chhabili Devi. In the said proceeding
\nan application under Order VII Rule 11 C.P.C. for quashing of the election
\npetition had been filed. The Election Tribunal proceeded to pass order on the
\nsaid application that the same was not at all liable to be allowed. The matter
\ntravelled up to this Court in the shape of writ petition No.19136 of 2008, and
\nthis Court vide its judgment dated 02.05.2008 dismissed the said writ petition,
\nnoting therein that the petitioner had not filed written statement till that date; he
\nshould file his written statement. Thereafter, written statement was filed and
\nreplica was also filed to the said written statement. In the election petition so
\nfiled, in all, 12 issues were framed. In support of the averments made in the
\nelection petition three witnesses were examined by respondent No.1 and two
\nwitnesses were examined from the side of the petitioner. Said election petition
\nwas posted for hearing on 26.11.2009. On said date an application 112-gha
\nwas filed by respondent No.1 for calling of the record from the election office
\nwith regard to election in question and for a direction for recounting of ballots.
\nAgainst the said application objections had been filed and this document was
\n                                                                                    2<\/span><\/p>\n
numbered as 114-gha; counter affidavit was also filed and the same was
\nnumbered as 116-ga. Said application had been allowed on 15.12.2009,
\ndirecting for summoning of the election papers and for recounting of the ballot
\npapers and straightaway for reserving the judgment. Said order dated
\n15.12.2009 was assailed before this Court in writ petition No.304 of 2010,
\nMohd. Kaisar vs. Chhabili Devi and<\/a> another, and this Court on 11.01.2010
\nproceeded to pass order by quashing the order dated 15.12.2009 and
\ndirectives were given to reconsider the application for recounting and taking
\nappropriate decision in accordance with law. Relevant extract of the said
\njudgment is being extracted below:\n<\/p>\n
             “Recount of votes could be ordered very rarely and on
\n      specific allegation in the pleadings in the Election Petition that
\n      illegality or irregularity was committed while counting. The petitioner
\n      who seeks recount should allege and prove that there was
\n      improper acceptance of invalid votes or improper rejection of valid
\n      votes. If only the Court is satisfied about the truthfulness of the
\n      above allegation, it can order recount of votes. Secrecy of ballot
\n      has always been considered sacrosanct in a democratic process of
\n      election and it cannot be disturbed lightly by bare allegations of
\n      illegality or irregularity in counting. But if it is proved that purity of
\n      elections has been tarnished and it has materially affected the
\n      result of the election whereby the defeated candidate is seriously
\n      prejudiced, the Court can resort to recount of votes under such
\n      circumstances to do justice between the parties.\n<\/p><\/blockquote>\n
             Now facts of the present case are being tested on the touch
\n      stone of the principle which has been settled by Full Bench of the
\n      Court as well as by Hon’ble Apex Court noted above.<\/p><\/blockquote>\n
             In the present case earlier as to whether there existed
\n      material facts in the election petition or not, the matter had travelled
\n      up to this Court. This Court on 02.05.2008 while deciding the writ
\n      petition took the view that this Court did not find any illegality in the
\n      view taken by the Election Tribunal and the facts which were there
\n      in the election petition were sufficient and constituted material facts,
\n      on which material particulars were also given. The facts regarding
\n      76 voters allowed to participate at both places and 21 dead
\n      electors, who were shown to have cast their votes, would constitute
\n      material facts. It was also mentioned in the said judgment that
\n      these facts would constitute material and basic facts, which were to
\n                                                                             3<\/span><\/p>\n
be proved at the trial. The fact of the matter is that three witnesses,
\nnamely, Chandra Sen, Abdul Hamid and Maiku had been examined
\nfrom the side of the election petitioner, and two from the side of the
\npresent petitioner, namely, the petitioner himself and Sharif Ahmad.
\nThe aforesaid election petition was posted for hearing on
\n26.11.2009, and then an application was moved for summoning the
\nentire records for effective adjudication of the election petition.
\nAgainst the said application objections had been filed along with
\ncounter affidavit. Said application has been allowed.\n<\/p>\n
       The Election Tribunal in the present case proceeds to
\nmention in paragraph 12 of the judgment that in paragraphs 6 to 12
\nof the election petition detail facts have been mentioned in the way
\nand manner in which irregularities had been committed and the
\nelection petitioner was declared elected by 11 votes and even in the
\ngarb recounting ultimately election petitioner was got defeated by
\nfive votes. The Election Tribunal then has proceeded to note down
\nthe facts as mentioned in paragraphs 6 to 12 of the election petition
\nin paragraphs 13 to 19 of the judgment and nothing beyond the
\nsame. In paragraph 20 of the impugned judgment, it has been
\nmentioned that all these facts had been mentioned in application
\n112-ga, which had been moved for recounting supported by
\naffidavit of Chandra Sen, husband of election petitioner. Thereafter,
\nElection Tribunal has proceeded to note down the details averred in
\nthe objection and the facts mentioned in the affidavit. In paragraph
\n26 of the judgment, the averments mention in paragraph 12 of the
\nelection petitionj has been reiterated on oath, and in addition to it, it
\nhas been averred that returning officer was got changed and undue
\npressure was got exerted by Wafur Rehman and Afaur Rehman
\nand got the result declared. In paragraph 27 arguments raised by
\nthe elected candidate has been noted, then it has been mentioned
\nthat election petitioner has filed her affidavit, her husband
\nChandrasen has also filed affidavit, and has also been cross
\nexamined at length. In paragraph 28 of the judgment, it has been
\nmentioned,    that      arguments      have    been    advanced     that
\ncontampareous evidence is not on record. Thereafter, it has been
\nmentioned that in the cross examination         of Chandrasen, it has
\ncome that he made repeated complaint, but the same went
\nunheeded, and it is accepted fact, that three letters were sent by
\n                                                                             4<\/span><\/p>\n
fax after 06.04.2006 onwards. Election Tribunal, thereafter, has
\nproceeded to note down the provisions of the Municipalities Act and
\nthe Full Bench judgment of this Court. In paragraphs 32 and 33 of
\nthe impugned order, Election Tribunal has proceeded to mention
\nthat in paragraphs 6 to 12 of the election petition the circumstances
\nin detail have been set out. Smt. Chhabili Devi has given her
\naffidavit. Sri Chandrasen has submitted his affidavit and has been
\ncross examined at length. Sri Abdul Hamid has given his
\ncontamperous evidence, by stating that election petitioner was
\ndeclared elected by eleven votes,but by putting undue pressure of
\nBafaur Rehman, Sri J. S. Mathur declared that election petitioner,
\ninstead of 2406 votes has polled 2396 votes and petitioner instead
\nof 2395 votes has polled 2401 votes. In paragraph 33 of the
\njudgment, statement of petitioner and Sharif Ahmad have been
\ndealt with. Thereafter, judgments have been referred               to in
\nparagraphs 34 to 39 and the proposition of law laid therein. In
\nparagraph 40 of the judgment Tribunal has proceeded to mention
\nthat what would be the impact of non-production of election in
\nwitness box, is not required to be answered at this stage. Again in
\nparagraphs 41 and 42 judgments have been referred to, and then
\nthe sum and substance of said judgment and the principle noted
\ntherein has been noted, keeping in view the judgment.\n<\/p>\n
       In the present case most surprising feature of the case, as is
\nreflective from paragraphs 44, 45, 46 and 47 of the impugned order,
\nis that the Election Tribunal has again proceeded to mention in
\nparagraph 44 of the judgment that there is evidence on oath of
\nelection petitioner, that she was declared elected by 11 votes, at
\nsaid point of time Ataur Rehman, local M.L.A. And Chairman,
\nMinorities Financial Corporation, and his brother exerted undue
\npressure, in the garb of recounting , got her declared as having lost
\nthe election by five votes. In paragraph 45 of the judgment, again
\nagain Election Tribunal has reiterated the facts that in support of
\nmaterial facts mentioned in paragraphs 7 to 12 of the election
\npetition, there is affidavit of Chhabili Devi. Affidavit of Chandrasen is
\nthere, with cross examination. There is supporting evidence of
\nAbdul Hamid. In paragraph 46, the Election Tribunal proceeds to
\nmention that at this stage only prima facie satisfaction has to be
\nrecorded qua existence of credible ground, that for effective
\n                                                                           5<\/span><\/p>\n
adjudication of election petition, inspection and recount is
\nimperative. Election Tribunal proceeds to mention that in spite of all
\nthese alleged irregularities, there is difference of five votes. In
\nparagraph 47 of the judgment, Election Tribunal proceeds to
\nmention that the Election Tribunal is satisfied that the averments,
\nwhich have been mentioned in application 112-ga, with affidavit
\n113-ga, counter affidavit 118-ga, and the oral evidence of
\nChandrsen and Abdul Hamid is there, no decision can be taken qua
\nthe facts spelled out in cross examination, but for effective
\nadjudication, documents are imperative to be called for.\n<\/p>\n
      Election Tribunal at one place proceeds to mention that on
\nthe basis of cross examination, whatsoever, evidence is there, on
\nthe same he cannot give any opinion and it would be expedient to
\nsummon the record in the ends of justice. Cross examination
\nportion has been appended before this Court and it ought to have
\nbeen taken into consideration. The cross examination of the
\nwitnesses of the election petitioner clarified the factual situation as
\nmentioned in the examination-in-chief, Election Tribunal has
\nconveniently avoided to consider the cross examination portion
\nand the statement of Chadnra Sen specially at page 79, 80 and 81
\nof the paper book. The Election Tribunal while forming the opinion
\nas to whether from the material facts which had been pleaded,
\nprima facie there existed cogent evidence to direct for recounting,
\nought to have discussed the said statements, the way and manner
\nin which result has been materially affected, the point of time when
\nirregularities had been committed in the counting of votes,
\nsubstantiating the same by giving details of polling stations,
\ncounting centres, tables, round of counting of votes in relation to
\nwhich alleged irregularities had taken place. The Election Tribunal
\nin the present case has not at all undertaken requisite exercise, as
\nto what was the prima facie cogent evidence which prompted him
\nto pass the order of recounting. Reasons for forming prima facie
\nopinion, is not at all exhibited, inasmuch as mere mention has been
\nmade of the statement, the affidavit and has proceeded to mention
\nthat he was satisfied with the discussion and evidence available on
\nrecord, totally ignoring the cross examination portion. As requisite
\nexercise is lacking and missing, the order impugned is not at all
\napproved of.”\n<\/p>\n
                                                                                          6<\/span><\/p>\n
       Pursuant to the judgment passed by this Court, matter was again taken
\nup by the Election Tribunal and again orders have been passed for summoning
\nof ballots and for recounting of votes polled at the election in question. At this
\njuncture present writ petition has been filed.\n<\/p>\n
       Counter affidavit has been filed on behalf of respondent No.1. Notice to
\nproforma respondents has not been issued in the present case, and with the
\nconsent of adversary parties, present writ petition is being taken up for final
\nhearing and disposal.\n<\/p>\n
       Sri K.N. Tripathi, Senior Advocate, assisted by Sri Chandan Kumar,
\nAdvocate, appearing in support of the writ petitioner, assailed the validity of the
\norder passed by Election Tribunal, on the ground that the earlier directives
\nissued by this Court have been totally ignored and without there being any
\ncogent material in support of the purported pleadings, merely on surmises and
\nconjectures in the name of purity of election, order impugned has been passed,
\nas such the order passed is unsustainable and is liable to be quashed.\n<\/p>\n
       Countering the said submissions, Sri S. K.Verma, Senior Advocate, assisted
\nby Sri Sidharth Verma, Advocate on the other hand, contended that in the present
\ncase, in the interest of justice, as purity of election has to be ensured, requisite
\nexercise has been directed to be undertaken simultaneously maintaining the
\nsecrecy of ballot also, and then orders have been passed, in such view of the
\nmatter with the opinion formed, no interference should be made.\n<\/p>\n
       This Court, at the earlier point of time when matter had travelled to this
\nCourt, had clearly ruled that recounting of votes should be ordered rarely and
\non being satisfied with the allegation in the pleadings of the election petition
\nand evidence adduced on record that illegality or irregularity was committed
\nwhile counting of votes. Election Petitioner seeking recounting will have to
\nallege and prove that there was improper acceptance of invalid votes or
\nimproper rejection of valid votes. Only in the contingency if the Court satisfies
\nitself about the truthfulness of the averments mentioned in the election petition,
\nthen the order of recounting can be passed. Secrecy of ballots has always
\nbeen considered sacrosanct in democratic process of election and it cannot be
\ndisturbed lightly by bare allegations of illegality or irregularity in counting . But if it
\nis proved that    purity   of    elections     has   been     tarnished    and    it   has
\nmaterially affected the result of the election whereby the defeated candidate
\nis   seriously    prejudiced,       the      Court      can    resort     to      recount
\n                                                                                       7<\/span><\/p>\n
of votes under such circumstances to do justice between the parties.\n<\/p>\n
      In the present case, entire emphasis from the side of election petitioner
\nhas been that in the direction of maintaining purity of election on the basis of
\npleadings available and on the basis of evidence adduced, on prima facie case
\nbeing made out, orders have been passed directing for summoning of the
\nballots and for recounting.\n<\/p>\n
      Purity of election has always been given precedence, and it is task
\nbefore the Election Tribunal to see and ensure that the purity of election
\nprocess needs to be preserved and unpolluted so as to achieve the
\npredominant goal of democracy that only such incumbent should represent the
\nconstituency who has been chosen by majority of the electors. Hon’ble Apex
\nCourt in the case of A. Neelohithadasan Nadar vs. George Mascrene and
\nothers<\/a>, 1994 Supp (2) SCC 619 has taken the view that existence of the
\nprinciple of secrecy of ballot must yield to the principle of purity of election in
\nlarger public interest. Paragraphs 10, 11, 12, 13 and 14 of the judgment being
\nrelevant are quoted below:\n<\/p>\n
             “10. The existence of the principle of “secrecy of ballot” cannot be
\n             denied. It undoubtedly is an indispensable adjunct of free and fair
\n             elections. The Act statutorily assures a voter that he would not be
\n             compelled by any authority to disclose as to for whom he has
\n             voted, so that he may vote without fear or favour and free from
\n             any apprehension of its disclosure against his will from his own
\n             lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh
\n             Tohral. But<\/a> this right of the voter is not absolute. It must yield to
\n             the principle of “purity of election” in larger public interest. The
\n             exercise of extrication of void votes under Section 62(4) of the
\n             Act would not in any manner impinge on the secrecy of ballot
\n             especially when void votes are those which have to be treated as
\n             no votes at all. “Secrecy of ballot” principle presupposes a validly
\n             cast vote, the sanctity and sacrosanctity of which must in all
\n             events be preserved. When it is talked of ensuring free and fair
\n             elections it is meant elections held on the fundamental foundation
\n             of purity and the “secrecy of ballot” as an allied vital principle. It
\n             was observed by this Court in Raghbir Singh case’ as follows:
\n             (SCR p. 1320: SCC p. 68, para 23)
\n             “Secrecy of ballot though undoubtedly a vital principle for
\n             ensuring free and fair elections, it was enshrined in law to
\n             subserve the larger public interest, namely, purity of election for
\n             ensuring free and fair election. The principle of secrecy of ballot
\n             cannot stand aloof or in isolation and in confrontation to the
\n             foundation of free and fair elections, viz., purity of election. They
\n             can coexist but as stated earlier, where one is used to destroy the
\n             other, the first one must yield to principle of purity of election in
\n             larger public interest. In fact secrecy of ballot, a privilege of the
\n             voter, is not inviolable and may be waived by him as a
\n             responsible citizen of this country to ensure free and fair election
\n             and to unravel foul play.”<\/p><\/blockquote>\n
             11. In view of the above it is the settled position that out of the
\n             two competing principles, the purity of election principle must
\n                                                                          8<\/span><\/p>\n
have its way. Section 94 of the Act cannot be pressed into service
\nto suppress a wrong coming to light and to protect a fraud on the
\nelection process.\n<\/p>\n
12. That both the election petition and recrimination petition were
\ndealt with on the principle of “purity of election” is not in dispute.
\nThe approach of the High Court on the subject on the
\ncommonality of the attack also cannot be questioned. But what
\nwas questioned by Mr Prashant Bhushan, as reiterated in his
\nwritten submissions of 14-9- 1993, was that the High Court was
\nnot correct in allowing examination of marked copies of electoral
\nrolls and counterfoils without any evidence or material in support
\nof the plea for inspection and that the High Court allowed the
\ninspection casually without inviting a written application or even
\nby a written order. It was submitted that except for pleadings in
\nthe election petition regarding void voting, there was no cause
\npleaded to permit the election papers to be thrown open for
\ninspection and this exercise was termed by learned counsel as
\n‘fishing or roving’. Rule 93 of the Conduct of Election Rules,
\n1961, provides for documents which shall not be opened and
\ntheir Contents inspected by, or produced before, any person or
\nauthority except under the orders of a competent court. On the
\nbasis thereof it was maintained that by a string of judgments of
\nthis Court it has been ruled that inspection could only be allowed
\nwhen two conditions are satisfied:\n<\/p>\n
1. The material facts on the basis of which inspection of
\ndocuments is sought, must be clearly and specifically pleaded;
\nand\n<\/p>\n
2. The Court must be satisfied on evidence, even if in the form of
\naffidavit, that is necessary to alow inspection in the interest of
\njustice.\n<\/p>\n
Support for these principles was sought from Ram Sewak Yadav
\nv. Hussain Kamil Kidwai2, Hariram<\/a> v. Hira Singh3, R. Narayanan
\nv. S. Semmalai4, Jagjit Singh<\/a> v. Giani Kartar Singh5, Jitendra
\nBahadur Singh v. Krishna Behari6 and<\/a> other decisions of the like.\n<\/p>\n
13. But by and large these are cases where there was a claim for
\nrecount. In contrast the instant case is of double voting which has
\nspecifically been pleaded in the election petition filed on 29-7-
\n1991 supported by affidavit and the names of the voters have
\nbeen supplied in the lists annexed thereto. The appellant had
\nfiled recrimination petition pleading that there were several other
\ncases of double voting and reception of invalid votes in favour of
\nthe election petitioner. This written statement-cum- recrimination
\npetition was filed on 10-9-1991. Issues were framed on 20-9-
\n1991. The election petitioner on 26-9-1991 was allowed to amend
\nthe Election Petition so as to include 10 more cases of double
\nvoting. The corresponding amendment application filed by the
\nappellant for taking into account details of double voting having
\ntaken place in another neighbouring constituency was rejected by
\nthe High Court for it was based on a new charge. The second
\namendment application of the election petitioner was allowed on
\n7-10- 1991 so as to include 23 more cases of alleged double
\nvoting. It is at that stage that is on 7-10-1991 that the Court
\npermitted inspection of the counterfoils since several double
\nvoters had been summoned for the following day to appear on 8-
\n10-1991 and subsequent days, on the oral prayer\/application of
\nboth the election petitioner and the appellant. The court
\napparently took into account that since witnesses were to be
\nexamined on the question of their double voting and were
\nexpected to take a positive stand, it would become necessary to
\ncorroborate or confront them with the counterfoils of the ballot
\n                                                                           9<\/span><\/p>\n
papers issued to them which purported to have been signed or
\nnot by them, in order to save time lest examination of the
\nwitnesses be time consuming. The Court allowed inspection of
\nthe roll and counterfoils in order to facilitate evidence of the
\nwitnesses on the date of their appearance, which was the
\nfollowing day. The suggestion no doubt was oral but the Court
\nseemed to agree with the suggestion and inspection was
\npermitted to both parties in the presence of the Registrar. The
\ncommonality of the approach of the parties on the question of
\ndouble voting must have clearly goaded the Court to adopt such
\nmeasure to facilitate quick trial. It is the case of the election
\npetitioner that the counsel for both the parties inspected the
\ncounterfoils on 7-10-1991 in the Registrar’s room as also on
\nsubsequent days, even though there was no written application
\nmade and there was no formal written order of the Court. Yet the
\ninspection was open to both the parties without any objection
\nhaving ever been raised by the appellant. In the facts and
\ncircumstances, we fail to see how the principle of secrecy of
\nballot can be imported to question the power of the Court to orally
\nallow inspection in its endeavour to eliminate the impurity in
\nelections, the opportunity provided having been availed of without
\ndemur by both parties. In this situation, it is difficult for us to
\ndigest the argument that here the High Court proceeded to allow
\ninspection without being satisfied on evidence, even in the form
\nof affidavit, that it was necessary to allow inspection in the
\ninterest of justice. Since the names of the voters who were
\nalleged to have double voted, had specifically been pleaded in
\nthe election petition (as amended from time to time) and the
\nrecrimination petition, it was necessary to correlate their names
\nwith the electoral rolls and the counterfoils of the ballot papers so
\nthat in case of double voting or impersonated voting, the impure
\nelement in the election process could be identified and retrieved
\nfrom the election package. The primary purpose thus was to
\npurify the electoral process and not to hunt or hound the voter’s
\nchoice, when exercised validly and freely. It is for that purpose
\nthat the Court, in the interest of justice, to facilitate a quick trial
\npermitted the parties to inspect beforehand the records but after
\nthe framing of the requisite issues arising from the pleadings of
\nthe parties and not earlier. This approach could not be termed as
\npermitting a ‘roving or fishing’ enquiry, as it is sometimes
\ndescribed in cases of a claim for re-count. We are thus of the
\nview that the High Court committed no error in permitting such
\ninspection in the facts and circumstances. We must, however,
\nhasten to clarify that we should not be understood to approve of
\nthe High Court giving oral directions in such serious matters
\nwithout insisting on a formal application setting out how a prima
\nfacie foundation was laid for the grant of such relief.\n<\/p>\n
14. Another argument put forth by Mr Prashant Bhushan was that
\nthe pleadings in the election petition were insufficient to justify
\ninspection inasmuch as except for mentioning that there had
\nbeen double voting by 19 persons nothing else was stated about
\nthe basis on which the election petitioner came to the conclusion
\nthat these names, which apparently had appeared twice in the
\nelectoral roll, belonged to one and the same person and that
\nthose persons had in fact voted twice. It was also commented
\nthat no material facts, in the form of affidavits by single persons
\nor polling agents alleging that they had seen and heard about
\nthose persons having voted twice. was filed in support of the
\npetition. It is maintained that in the absence of evidence of these
\nparticulars being pleaded as to the source of knowledge of
\ndouble voting it was dangerous to allow enquiring into such an
\nallegation on the bare allegation of double registration of votes
\nand possible double voting. We have pondered over this matter
\n                                                                                     10<\/span><\/p>\n
            but regretfully do not accept the argument of the learned counsel.
\n            If a name has been registered twice enabling a person to take the
\n            advantage of voting in two different polling stations, Section 62
\n            mandates that if he polls both these votes then both votes are
\n            void. A void vote cast is a vote void ab initio. In the nature of
\n            things the void taint in the election would have to be traced to the
\n            election papers for without that bare oral evidence would be of no
\n            use, and at best would be word against word, making application
\n            of Section 62(4) welling impossible. If the election petitioner on
\n            some information, material or otherwise is able to entertain the
\n            belief that a particular voter, double registered, is known to have
\n            voted twice, he can certainly plead to that fact on his own
\n            entertained belief and need not ordinarily resort to giving details
\n            of the sources of his information or knowledge or the
\n            entertainment of his belief because registration of double vote is
\n            by itself the starting point; the exercise of both votes being the
\n            second. The election petitioner had specifically mentioned and in
\n            clear-cut terms that 19 persons had double voted. The question
\n            was not resoluble merely on oral evidence, whether they had or
\n            had not, except to put those persons into the witness box, hear
\n            their version and confront them with the election papers. The
\n            sphere of enquiry at that stage is to the voting and not for
\n            discovering the name of the person to whom the vote was cast.
\n            That inevitably has to be found out after double voting or
\n            impersonated voting has been found out leading to the new step
\n            to trace them and nullify them. On the pleading of the parties as
\n            such, on both sides, a case for inspection at the stage when it
\n            was done had been made out. We thus find no error committed in
\n            the approach of the High Court.”\n<\/p>\n
      Hon’ble Apex Court in the case of T.A. Ahammed Kabeer vs. A.A.
\nAzeez and others<\/a>, AIR 2003 SC 2271, considered this aspect of the matter
\nvis-a-vis purity of the election and issuance of mechanical directions for
\ninspection\/recounting. Paragraphs 26, 27, 28 and 29 of the judgment being
\nrelevant are quoted below:\n<\/p>\n
            “26. The task before an Election Judge is ticklish. It is often urged
\n            and also held that the success of a winning candidate should not
\n            be lightly set aside and the secrecy of ballot must be zealously
\n            guarded. On account of a rigid following of these principles the
\n            election Courts are inclined to lean in favour of the returned
\n            candidates and place the onus of proof on the person challenging
\n            the result of election, insisting on strict compliance with the rules
\n            of pleadings and excluding such evidence from consideration as
\n            is in divergence with the pleadings. However, what has so
\n            developed as a rule of practice should not be unduly stretched;
\n            for the purity of the election process needs to be preserved
\n            unpolluted so as to achieve the predominant goal of democracy
\n            that only he should represent the constituency who has been
\n            chosen by the majority of the electors. This is the purpose and
\n            object of the election law.\n<\/p><\/blockquote>\n
            27. Though the inspection of ballot papers is to be allowed
\n            sparingly and the Court may refuse the prayer of the defeated
\n            candidate for inspection if, in the garb of seeking inspection, he
\n            was indulging into a roving enquiry in order to fish out materials to
\n            set aside the election, or the allegations made in support of such
\n            prayer were vague or too generalized to deserve any cognizance.<\/p><\/blockquote>\n
            Nevertheless, the power to direct inspection of ballot papers is
\n            there and ought to be exercised if, based on precise allegations of
\n                                                                            11<\/span><\/p>\n
material facts, also substantiated, a case for permitting inspection
\nis made out as is necessary to determine the issue arising for
\ndecision in the case and in the interest of justice. As held by the
\nConstitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai
\nand others<\/a>, (1964) 6 SCR 238, an Election Tribunal has
\nundoubtedly the power to direct discovery and inspection of
\ndocuments within the narrow limits of Order XI of Code of Civil
\nProcedure. Inspection of documents under Rule 15 of Order XI of
\nCode of Civil Procedure may be ordered of documents which are
\nreferred to in the pleadings or particulars as disclosed in the
\naffidavit of documents of the other party, and under Rule 18(2) of
\nother documents in the possession or power of the other party.
\nThe returning officer is not a party to an election petition and an
\norder for production of the ballot papers cannot be made under
\nOrder XI of Code of Civil Procedure. But the Election Tribunal is
\nnot on that account without authority in respect of the ballot
\npapers. In a proper case where the interests of justice demand it,
\nthe Tribunal may call upon the returning officer to produce the
\nballot papers and may permit inspection by the parties before it of
\nthe ballot papers which power is clearly implicit in Ss. 100(1)(d)\n<\/p>\n
(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961.
\nThis power to order inspection of the ballot papers which is apart
\nfrom Order XI Code of Civil Procedure may be exercised, subject
\nto the statutory restrictions about the secrecy of the ballot paper
\nprescribed by Ss. 94 and 128(1). However, the Constitution
\nBench has cautioned, by the mere production of the sealed boxes
\nof ballot papers before the Election Tribunal pursuant to its order
\nthe ballot papers do not become part of the record and they are
\nnot liable to be inspected unless the Tribunal is satisfied that such
\ninspection is in the circumstances of the case necessary in the
\ninterests of justice. AIR 1964 SC 1249\n<\/p>\n
28. It is true that a recount is not be ordered merely for the asking
\nor merely because the Court is inclined to hold a recount. In order
\nto protect the secrecy of ballots the Court would permit a recount
\nonly upon a clear case in that regard having been made out. To
\npermit or not to permit a recount is a question involving
\njurisdiction of the Court. Once a recount has been allowed the
\nCourt cannot shut its eyes on the result of recount on the ground
\nthat the result of recount as found is at variance with the
\npleadings. Once the Court has permitted recount within the well-
\nsettled parameters of exercising jurisdiction in this regard, it is the
\nresult of the recount which has to be given effect to.\n<\/p>\n
29. So also, once the Court exercises its jurisdiction to enter into
\nthe question of improper reception, refusal or rejection of any
\nvote, or the reception of an vote which is void by reference to the
\nelection result of the returned candidate under Section 100 (1)(d)\n<\/p>\n
(iii), as also as to the result of the election of any other candidate
\nby reference to Section 97 of the Act and enters into scrutiny of
\nthe votes polled, followed by recount, consistently with its findings
\non the validity or invalidity of the votes, it cannot refuse to give
\neffect to the result of its findings as to the validity or invalidity of
\nthe votes for the purpose of finding out true result of recount
\nthough the actual finding as to validity or otherwise of the votes by
\nreference to number may be at variance with the pleadings. In
\nshort, the pleadings and proof in the matter of recount have
\nrelevance for the purpose of determining the question of
\njurisdiction to permit or not to permit recount. Once the jurisdiction
\nto order recount is found to have been rightly exercised,
\nthereafter it is the truth as revealed by the result of recounting that
\nhas to be given effect to.”\n<\/p>\n
                                                                                    12<\/span><\/p>\n
       This Court also in the case of Satendra Kumar Singh vs. State of U.P.
\nand others<\/a>, 2010 (79)ALR 60, has taken the view that requirement of
\nmaintaining secrecy of the ballot papers is sacrosanct and should not be
\nallowed to be violated on frivolous, vague and indefinite allegations and
\nrecounting of votes should not be ordered by Election Tribunal on mere asking
\nby the election petitioner for the purpose of fishing out material to invalidate the
\nelection in question. Principle of secrecy of ballot cannot stand aloof or in
\nisolation and in confrontation to the foundation of free and fair election viz.
\npurity of election. They co-exist , but where one is used to destroy the other,
\nthe first one must yield to the principle of the purity of election in larger public
\ninterest.\n<\/p>\n
       Parameters for recounting has been mentioned in detail in the earlier
\nround of litigation interse parties and the requisite extent of exercise to be
\nundertaken by Election Tribunal also has been specified therein, while passing
\norder of recounting and it has been clarified therein with a note of caution that
\nthe said order should not be passed merely on the asking for. Maintaining
\npurity of election is the foundation of valid democracy, and on issue being
\nraised qua purity of election, election Tribunal is obliged to go into such
\nquestion as only purity of election predominant goal of democracy would be
\nachieved, and in case there is conflict between purity of election and the
\nsecrecy of ballot, then the secrecy of ballot will yield to the principle of purity of
\nelection in larger interest of the public, but in the garb of purity of election on
\nformal, vague and indefinite allegations recounting of votes cannot be ordered
\nby the Election Tribunal.\n<\/p>\n
       On above parameters order impugned is being examined. The order
\nimpugned in the second round of litigation, wherein directives have been
\nissued for recounting proceeds runs from page 216 to page 242 of the paper
\nbook. Page 216 to page 220 of the paper book deals with the array of parties
\nand up to paragraph 10 history of the case has been given. In paragraph 11,
\nElection Tribunal has proceeded to mention that the order dated 11.01.2010
\nhas been perused and as per directives given therein application 112ga is
\nbeing decided. The Election Tribunal has, thereafter, proceeded to mention in
\nparagraph 11 that in paragraphs 6 to 12 of the election petition grounds have
\nbeen discussed as per which irregularities have been committed, and on
\naccount of the said irregularities in spite of the fact that the election petitioner
\n                                                                               13<\/span><\/p>\n
had been elected in the recounting, she was got defeated by five votes.\n<\/p>\n
      In paragraph 13 of the order impugned averments mentioned in
\nparagraph 6 of the election petition have been discussed. Similarly in
\nparagraphs 14, 15, 16, 17 and 18 of the order impugned, the averments
\nmentioned in paragraphs 6, 7, 8, 9, 10 and 11 of the election petition have
\nbeen reproduced. In paragraph 19 of the impugned order, election Tribunal has
\nproceeded to mention the illegalities alleged to have been committed in the
\ncounting of votes. The election petitioner has been shown to have secured
\n2406 valid votes, whereas petitioner had secured 2395 votes, and thus election
\npetitioner claimed to have been elected by 11 votes. It has been noted that
\nthereafter Vafaur Rehman exerted undue pressure and got recounting done
\nand in place of 2406 votes, the election petitioner was shown to have received
\nonly 2396 votes and the petitioner 2401 votes. It has been mentioned that
\nthereafter com plaint had been made to the State Election Commission as well
\nas District Election Officer, but in spite of the complaint being made votes were
\nnot shorted out and recounting was not done and the petitioner was declared
\nelected.\n<\/p>\n
      In paragraph 20 of the impugned order, Election Tribunal has proceeded
\nto mention that all these facts have been mentioned in the application 112ga
\nand request has been made for summoning of the documents and for
\nsegregation of ballot papers and for recounting.\n<\/p>\n
      In paragraph 21 of the order impugned objections moved by the
\npetitioner have been noted and in paragraph 22 of the impugned order, it has
\nbeen mentioned that the parties had been heard. Thereafter in paragraph 23 of
\nthe impugned order statement made by Chandrasen Gangwar has been noted
\nand then in paragraph 24 it has been noted that affidavit of Mohd. Kaisar was
\nfiled subsequently, then reference has been given of the counter affidavit
\n118ga\/1 and 118ga\/3. In paragraph 25 of the impugned order reference has
\nbeen given of the letter 4ka\/12 to 4ka\/19 in respect of voters whose names
\nhave been shown on two places. In paragraph 26 of the impugned order
\nstatement made on oath by election petitioner has been noted, and then in
\nparagraph 27 objections raised on behalf of the petitioner have been noted. In
\nparagraph 28 note has been made in respect of objections raised by
\nChadrasen Gangwar in respect of contemporary evidence. In paragraphs 29
\nand 30 of the impugned order statutory provisions have been noted. In
\n                                                                              14<\/span><\/p>\n
paragraph 31 defence of election petitioner has been accepted, then in
\nparagraphs 32 and 33 of the impugned order reference has been given of the
\njudgment dated 11.01.2010 passed by this Court and the principles laid down
\ntherein have been noted. In paragraph 34 of the impugned order, Election
\nTribunal has noted the finding of the judgment of this Court and the pre-
\nrequisite conditions which are required to be complied with. In paragraph 35 of
\nthe impugned order, Election Tribunal has proceeded to note the fact that
\nearlier election petitioner was declared elected, but subsequently, on pressure
\nbeing exerted, petitioner was shown to have been elected. In paragraph 36
\nobjections raised on behalf of the petitioner have been noted, in paragraph 37
\nreference has been given of of the counting being done on two occasions. In
\nparagraph 38 reference has been given of the judgments relied upon by the
\nelection petitioner, and then in paragraph 39 of the impugned order
\nconclusions have been drawn, and on the basis of such conclusions, judgment
\nhas been passed. In paragraphs 40, 41, 42,43, 44, 45, 46 and 47, judgments
\ncited on behalf of the petitioner have been noted, and thereafter in paragraph
\n48, the issue raised have been taken up, and it has been mentioned that there
\nis no statutory prohibition that the Election Tribunal cannot pass order of
\nrecounting even if prima facie case is made and cogent evidence is adduced
\nin support of the same.\n<\/p>\n
      The issue raised, in fact, has been considered and answered starting
\nfrom paragraphs 49 to 56 of the impugned order. In paragraph 49 of the
\nimpugned order, Election Tribunal has noted that in paragraph 6 of the election
\npetition, specific averment is there in respect of undue pressure being exerted
\nand for change of Returning Officer, and denial of only undue pressure being
\nexerted has been made, but this fact has not been denied that earlier
\nReturning Officer Sri Devesh Mishra was got removed and was replaced by Sri
\nJ.S. Musafir. Thereafter, in paragraphs 51, 52, 53 and 54 specific objection
\nraised by petitioner has been adverted to and dealt with.\n<\/p>\n
      In the present case, Election Tribunal has considered the pleadings and
\nhas found that specific plea was there that Ataur Rehman, who was local
\nM.L.A. Of Ruling party and Chairman of the Minority Commission and his
\nbrother Bafaur Rehman, both were present on the date of counting and on
\naccount of pressure being exerted by them in the past, Returning Officer had
\nbeen changed and new Returning Officer had been inducted, who was from
\n                                                                                15<\/span><\/p>\n
the same department, and who was acting on the dictates and directives of
\nAtaur Rehman. The Election Tribunal, in the present case has taken note of
\nthis particular pleading and has taken note of the fact that the said pleadings
\nwere fully substantiated by evidence on record, including the cross
\nexamination and then has proceeded to pass order directing for summoning of
\nthe ballots and for recounting in the second round of litigation aqs specifically
\nit was pleaded and supported by prima facie evidence that earlier result was
\ndeclared in favour of the election petitioner, then on pressure being exerted
\nresult was manipulated. Reason for forming prima facie opinion has been
\ngiven, and then opinion has been formed in the direction of maintaining purity
\nof election, it is imperative to call for the records. Difference between prima
\nfacie opinion and concluded opinion has to be kept in mind, and same, in fact,
\nhas been kept in mind by the Election Tribunal seized of the matter. The
\nElection Tribunal seized of the matter, has authority to consider the pleadings
\nand evidence adduced in support of the same and then form opinion as to
\nwhether purity of election in any way had been impaired or not. Here, Election
\nTribunal has prima facie satisfied itself that the purity of election has been
\nimpaired as political pressure has been exerted and on account of the same
\nchange of Returning Officer has been there and said Returning Officer had not
\nbeen acting independently, and had been acting on the directives of Ataur
\nRehman,being from his departmnent. Submissions made in the pleadings have
\nbeen supported by the statements made in the cross examination, and
\nshortcoming in the evidence sought to be pointed out by the petitioner before
\nthis Court, cannot vitiate the formation of prima facie opinion, as it was not a
\nconclusive opinion. In the facts of the case as on the earlier occasion for want
\nof requisite exercise being undertaken by the Election Tribunal, matter had
\nbeen remanded back, but on the second time matter has been objectively
\nconsidered and prima facie opinion has been formed, which is in the direction
\nof maintaining purity of election, as such it cannot be said, in the facts of the
\ncase, that the order of recounting has been passed merely on the asking of the
\nelection petitioner. Here, in the present case full care has been taken to
\nmaintain secrecy of the ballots also. In such a situation and in such
\ncircumstances, the relief claimed cannot be accorded.\n<\/p>\n
      Consequently, writ petition fails and the same is dismissed.
\n09.07.2010
\nSRY
\n 16<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Mohd. Kaisar vs Chabilli Devi And Others on 9 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-59080","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nMohd. Kaisar vs Chabilli Devi And Others on 9 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohd-kaisar-vs-chabilli-devi-and-others-on-9-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohd. 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