Judgment:
*IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
19. h September, 2013 % + CS(OS) 2969/2011 NIRANJAN LAL GUPTA & ANR ..... Plaintiffs Through: Mr. Aman Lekhi, Sr. Adv. with Mr. Dinesh Kumar Gupta and Mr. Sonu Gupta, Advocates. Versus GURMEET SINGH BAWEJA & ORS ..... Defendants Through: Mr. Ajay Burman, Mr. Karan Burman and Mr. Aditya Shankar, Advocates for D-1. Mr. Kirtiman Singh, Mr. T. Singhdev and Mr. Waize Ali Noor, Advocates for D-3. Mr. Madan Bhatia, Sr. Adv. with Mr. P.S. Bindra and Ms. Sweta Priyadarshini, Advocates for D-4 & 5. CORAM :HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J.
1. The two plaintiffs have instituted this suit (i) for declaration of the election on 24th November, 2011 of defendant no.4 Mr. Bal Malkit Singh and defendant no.5 Mr. Kultaran Singh Atwal to the post of President and Vice President (North Zone) respectively of the defendant no.3 All India Motor Transport Congress for the term 2011-2013 as illegal, null & void; (ii) for mandatory injunction directing the defendant no.1 Election Officer to recount the votes taking into account eight votes which were illegally declared as rejected and to thereafter declare the two plaintiffs as successful on the said posts of President and Vice President (North Zone) of defendant no.3 for the term 2011-2013; and, (iii) for permanent injunction restraining the defendants no.4&5 from representing themselves as President and Vice President (North Zone) of the defendant no.3.
2. Summons of the suit and notices of the application for interim relief were issued and vide ex parte order dated 28th November, 2011 the defendant no.1 Election Officer was directed to produce the record of elections to the said posts on the next date of hearing. The said record in the form of a sealed ballot box was produced and the satisfaction of the parties that the seal thereon had not been tempered was recorded in the order dated 2nd December, 2011; sixteen ballot papers, eight for the post of President and eight for the post of Vice President which were the subject matter of controversy were also taken out and kept on the Court file on the same day and the ballot box along with the remaining ballot papers returned to the defendant no.1 Election Officer. Vide reasoned order dated 5th December, 2011 the application of the plaintiffs for interim relief restraining the defendants no.4&5 from taking charge on the post of President and Vice President (North Zone) and for staying the operation of the result declared on 24th November, 2011 of the election was dismissed. FAO(OS) No.603/2011 & FAO(OS) No.604/2011 preferred by the two plaintiffs respectively against the said order were vide order dated 19 th December, 2011 dismissed as not pressed, expediting the trial.
3. It is the case of the plaintiffs:(a). that out of the total voters numbering 118, 60 voters cast their votes in the presence of the plaintiffs by ticking on the ballot paper as the ballot was not a secret ballot and many more voters had assured the plaintiffs that they would similarly mark their ballot in favour of the plaintiffs; (b). that at the time of counting it was observed that many ballot papers had been tampered by erasing/removing the tick marks placed against the names of the plaintiffs and placing a new mark against the names of the defendants no.4&5; (c). it was also observed that the aforesaid tampering was done after the time of dispatch of the ballot paper by the voter and before the counting had begun; (d). that the plaintiffs immediately filed their written objection/ protest regarding the said tampering/erasing, much before the counting was completed and the results declared and requested the defendant no.1 Election Officer to hold up the result of the election pending the investigation in the matter; (e). that the defendant no.1 Election Officer however continued with the process of counting and declared the defendants no.4&5 as elected; and, (f). that the aforesaid tampering/erasing was done to reduce the number of votes cast by the voters in favour of the plaintiffs and increase the number of votes in favour of the defendants no.4&5.
4. The defendant no.1 Election Officer in his written statement has:(i). denied that the plaintiffs had secured 60 out of 118 votes in their favour; (ii). pleaded that the plaintiff no.1 had got only 52 votes while the defendant no.4 had got 58 votes and eight votes were rejected due to double ticking; (iii) pleaded that similarly the plaintiff no.2 Shri Harish Sabharwal had polled 51 votes as against 59 votes polled by the defendant no.5 and eight votes were rejected because of double ticking; (iv). pleaded that due procedure for counting of the votes was adopted in the presence of the parties who signed the proceedings; (v). denied that there was any tampering/erasing; and, (vi). pleaded that upon objection being taken by the plaintiffs, the ballot papers were thoroughly scrutinized but eight ballot papers were found having double ticking.
5. The written statement of the defendant no.2 Shri Pramod Kumar Sharma, Advocate, Co-ordinator to the defendant no.1 Election Officer as well as the written statement of the defendant no.3 are on the same lines.
6. The defendants no.4&5 in their separate written statements have (A). that as per the schedule of election announced on 30 th September, 2011, the last date for dispatch of ballot papers to members was 5th November, 2011 and the last date for return of the completed ballot papers from members was 23rd November, 2011 till 5.00 P.M.; (B). that two separate ballot papers for electing President and Vice President for the term 2011-2013 were sent to all the members of the Managing Committee of the defendant no.3; (C). that the said ballot papers instructed the voters not to write on or put any other mark on the ballot paper which may disclose the identity of the voter and also informed the voters that in such case the ballot paper would be liable for cancellation; it also instructed the voters that voting in excess will invalidate the vote and ballot paper will be rejected; (D). that the receipt of ballot papers in the office of the defendant no.3 and putting thereof in the ballot box was recorded on camera; (E). that on 24th November, 2011 the ballot boxes were opened in the presence of the candidates and the ballot papers were found in order and the candidates were satisfied that prior to opening the ballot boxes there was no tampering with the same and no objection also at that stage was raised by anyone; (F). that objection was raised by the plaintiffs only after counting; (G). that the defendant no.1 Election Officer found double ticking on eight ballot papers and since the same was in violation of instructions, the said votes were rejected; significantly the said votes were in favour of the defendants no.4&5; (H). that the averment/plea of the plaintiffs that 60 voters had cast their votes in favour of the plaintiffs is a ground for rejecting all the 60 votes and is violative of the additional instructions issued by the defendant no.3 in the letter dated 3rd November, 2011 prohibiting disclosure of identity by the voter; and, (I). that the averments in the plaint showed that the plaintiffs had forced/coerced voters to vote in their favour and that after the plaintiffs left, the voters changed their votes and casted in favour of whomsoever they wanted to.
7. The plaintiffs have filed replications inter alia pleading:(I). that the defendant no.1 Election Officer had acted in connivance with the defendants no.4&5 and had in the first instance taken into consideration the questioned 16 (i.e. 8+8) ballots into account of the defendants no.4&5 – if the same were tampered, the same could not have been counted in favour of the defendants no.4&5; (II). that the from the examination of the 16 ballots it is clear that the tick mark against the names of the plaintiffs had been erased and tick mark against the names of the defendants no.4&5 had been put; (III). that upon objection being raised by the plaintiffs the defendant no.1 Election Officer ought to have held a detailed enquiry thereon – instead he rushed to declare the result of the election; and, (IV). that the secrecy of the ballot had not been violated as none of the voters had disclosed their identity on the ballot paper; the principle of secrecy is not absolute principle and it is the prerogative of the voter to disclose or not to disclose his vote to the contesting candidates; that the provision in the Memorandum of Association of the defendant no.3 relating to secrecy of ballot is for election of the members of the Managing Committee and not relating to election of office bearers.
8. On the pleading aforesaid of the parties, the following issues were framed on 17th February, 2012:“1.
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5.
6. CS(OS) No.2969/2011 Whether the plaint has been signed, filed and verified in accordance with the law?. OPP. Whether the suit filed by the plaintiffs is without any cause of action as alleged by the defendant no.1?. OPD 1.Whether the 8 ballot papers for the post of President and 8 ballot papers for the post of Vice President (North Zone) were tampered with as alleged by the plaintiffs, if so its effect?. OPP If the issue no.3 is decided in favour of the plaintiff in that case whether the election of defendants no.4 and 5 as President and Vice President respectively is liable to be declared as illegal, null and void?. OPP Whether the plaintiffs are entitled for decree of declaration to declare the plaintiffs as elected office bearers of defendant no.3?. OPP. Relief.”
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9. Evidence was recorded on commission with the two plaintiffs examining themselves and the defendant no.1 and the defendant no.4 examining themselves as witnesses.
10. The senior counsel for the plaintiffs and the counsel for the defendant no.1 Election Officer, defendant no.2 in person, counsel for the defendant no.3 and the senior counsel for the defendants no.4&5 have been heard.
11. The senior counsel for the plaintiffs has argued, (i) that the tick marks against the names of the defendants no.4&5 in all the 16 ballots which were rejected are in the same ink; (i) that the defendant no.1 Election Officer ought to have sought expert opinion before rejecting the ballots and was not competent to decide the said objection himself; (iii) that the defendant no.1 Election Officer in his cross examination had admitted that of the double tick on the 16 ballots, one was light and the other prominent; (iv) that as per the Election Notice dated 30 th September, 2011 the nomination papers were acceptable either by speed post, registered post, approved courier or even by hand, to be delivered in the office of the defendant no.3 under acknowledgment and there was thus nothing wrong in the voters after ticking the ballots against the names of the plaintiffs handing over the same to the plaintiffs for delivery in the office of the defendant no.3; (v) that the tick mark put by the voters on the 16 ballot papers against the names of the plaintiffs no.1&2 respectively had been erased in a way not visible in a routine way but visible on meticulous/close examination by holding the ballot paper near source of direct light and the tick marks were made against the names of the defendants no.4&5; (vi) Reliance is placed on Morgan Vs. Simpson 1975 Q.B. 151 laying down the situations in which the election can be said to be vitiated and therefrom it is contended that if the election is conducted so badly that it was not substantially in accordance with the law as to elections, irrespective of whether the result was affected or not, the election is vitiated; however if the election is conducted substantially in accordance with law as to elections it is not vitiated by a breach of the rules or a mistake, provided that it did not affect the result of the election; (vii) it is contended that the defendant no.1 Election Officer was entitled to countermand the election and the said duty is implicit in the duty to hold election; (viii) that the minutes of the holding of the election earlier drawn up by the defendant no.1 Election Officer were torn and which affects the integrity of the election – attention in this regard is invited to Ex.PW1/4; (ix) that the election held was not fair owing to the defendant no.1 Election Officer refusing to conduct inquiry into erasing/tampering of the ballots; (x) that an SMS of the defendants no.4&5 being victorious in the election was circulated one hour before the declaration of the result – though the plaintiffs in their examination-in-chief had deposed so but there was no cross examination with respect thereto; (xi) that the defendant no.1 Election Officer rushed to handover charge of the post of President and Vice President to the defendants no.4&5 so as to avoid any stay from the Court; (xii) that the defendant no.1 Election Officer is the beneficiary of the election of the defendants no.4&5 as he continues to be the Chairman of the Finance Committee of the defendant no.3 and continues to operate the bank accounts and on which aspect also no cross examination was done of the plaintiffs; and, (xiii) the defendant no.1 Election Officer was also felicitated by a special award at a convention held at Ashoka Hotel after the election, on 16th October, 2011.
12. The senior counsel for the defendants no.4&5 argued:(i). that the plaintiffs concealed from the plaint that they had raised no objection during the counting; (ii). that in the counting the defendants were found to have polled 66 votes each and the plaintiffs 52 votes each – upon objection being raised by the plaintiffs re-count was done in which 16 ballot papers aforesaid i.e. 8 in favour of each of the two plaintiffs were found to contain double ticking and were rejected reducing the votes of the defendants and not of the plaintiffs; (iii). that from the averment/plea of the plaintiffs that 60 of the voters had voted in their presence in their favour, the secrecy of voting is vitiated and purity of election process violated; (iv). that it appears that the plaintiffs prevailed upon the voters to tick in their favour in their presence and which the voters subsequently erased and voted for the defendants no.4&5; (v). that voting by ballot is necessarily secret; attention is invited to Section 59 of the Representation of Peoples Act, 1951 and to Corpus Juris Secundum Vol. 8 defining ballot; attention is also invited to Black‟s Law Dictionary defining ballot as process of voting usually in secret; (vi). that if either secrecy of ballot or purity of election is violated the vote becomes void; (vii). reliance is placed on A.C. Jose Vs. Sivan Pillai AIR 198.SC 92.citing various dictionaries defining the ballot as an act of voting, usually secret; (viii). reliance is also placed on American Jurisprudence Vol. 26 opining that the manner of voting which preserves the secrecy thereof is a voting by ballot and that ballot implies a requirement of secrecy; (ix). reliance is also placed on Halsbury‟s Laws of England 4th Edition Vol. 15 paragraph 558 opining that any ballot paper on which anything is written or marked by which a voter can be identified, is void and must not be counted; (x). reliance is placed on Raghbir Singh Gill Vs. Gurcharan Singh Tohra 1980 (3) SCR 1302.at page 1313 and 1317 laying down that secrecy of ballot is a key stone in the arch of Constitutional democracy; (xi). with reference to Purno Agitok Sangma Vs. Pranab Mukherjee JT 201.(12) SC 29.it is contended that the Court has repeatedly cautioned that the election of a candidate who has won an election should not be lightly interfered with unless circumstances so warrant; and, (xii). that it was impossible to tamper with the ballot without tampering with the envelops in which the ballots were to be received and of which there was no plea – in fact the camera footage shows the plaintiffs examining the envelops.
13. The counsel for the defendant no.1 Election Officer has argued:(A). that the defendant no.1 Election Officer is concerned since the allegations of tampering of ballots are against him; (B). that the defendant no.1 Election Officer on the very first date produced the entire records; (C). that once the 16 ballots were found to have two marks i.e. tick marks against the names of the plaintiffs as well as the defendants no.4&5, the defendant no.1 Election Officer had no option but to reject the said ballots; (D). that the sealed boxes containing the ballots were opened in the presence of the plaintiffs and till counting no objection was raised by the plaintiffs and objection was raised only after counting had been completed; (E). that the conduct of the defendant no.1 Election Officer is above board and the allegations against him unfortunate; (F). that production of the entire record immediately on receipt of notice from this Court shows the election to have been conducted in a transparent manner; (G). that the plaintiffs have not led evidence of 60 people who are claimed to have voted in favour of the plaintiffs; and, (H). that the plaintiffs in the plaint have changed their stand to the ballot papers having been tempered with.
14. The senior counsel for the plaintiffs in rejoinder has contended:(a). that the issue is not of violation of secrecy but of double ticking; (b). that the defendants no.4&5 have not made any definite pleading of any voter, after putting the mark against the names of the plaintiffs, having subsequently changed his mind; (c). that the defendant no.1 Election Officer has no defence to the allegation of the minutes having been torn and page thereof having been changed; (d). that the secrecy of ballot is for the benefit of voters and none of the voters have complained of violation of secrecy and the voter can waive the privilege vested in him of secrecy; and, (e).
15. that double ticking is the key to the controversy. The senior counsel for the defendants no.4&5 also reiterated that the plaintiffs had failed to prove that 60 voters had voted for him and when was quizzed in this regard in cross examination, stated that he could not disclose their names.
16. I have considered the rival submissions aforesaid and have also opened the sealed envelope on record containing the 16 ballots aforesaid which were rejected. I find each one of them to be ticked in ink against the names of the defendants no.4&5 respectively and also containing a faint tick mark against the name of each of the two plaintiffs respectively. The faint tick marks against the name of each of the plaintiffs are found to be in pencil. I have used an eraser against such mark of one of the ballot papers and find it possible to erase it further and which confirms of the said mark being in pencil.
17. Ordinarily a voter would put the tick mark against the name of the candidate for whom he intends to vote, in ink and which cannot be easily erased and not with pencil, mark whereof is easily erasable. I find it hard to believe that the voters who had sent the said 16 ballot papers, if intending to vote in favour of the plaintiffs, would have put the mark against the names of the plaintiffs with a pencil. The senior counsel for the plaintiffs has at great pains explained that there is nothing wrong in the plaintiffs collecting the ballots from the voters who had voted in favour of the plaintiffs, for onward submission in the office of the defendant no.3. The plaintiffs would certainly have then taken care that the tick mark against their names was put in ink which is ordinarily indelible and not in pencil which is easily erasable. Though the instructions to the voters on the ballot do not include an instruction to put the tick mark in ink only, but it is elementary.
18. A reading of the instructions contained in the letter dated 3 rd November, 2011 of the defendant no.1 Election Officer to all the voters enclosing the ballot papers, instructed the voters to „properly‟ mark the ballots, fold and place the same in the envelope also enclosed, to seal the envelope and to courier or post or deliver the envelop to the office of the defendant no.3. It is not the plea of the plaintiffs that the envelopes containing the ballot papers were opened behind the back of the plaintiffs or that the ballots contained therein were in the control and possession of the defendant no.1 Election Officer at any time behind the back of the plaintiffs. The minutes of the election counting process record that the ballot boxes were opened in the presence of the plaintiffs and “all envelopes were taken out”. It is res ipsa loquitur that the ballot papers must have been taken out from the envelopes in the presence of the plaintiffs. It is not the plea of the plaintiffs that the defendant no.1 Election Officer at any time had an occasion to erase the tick marks on the 16 ballots against the names of the plaintiffs and to put tick marks against the names of the defendants no.4&5. It is also not the plea of the plaintiffs that the said 16 ballots were not contained in the envelopes. Though I find the plaintiffs in their affidavits by way of examination-in-chief to have stated that they were, at the time of opening of ballot boxes seated at a distance of about 10-12 feet but it is not their plea that the defendant No.1 Election Officer at any time was in control of ballot papers behind the eyes of the plaintiffs and without any such plea with particulars, no evidence suggesting so can be looked into. Moroever the plaintiffs, save for deposing that they were seated at a distance, have shied away from even in evidence deposing as to how and when the defendant No.1 Election Officer had an occasion to so erase the tick mark against the names of plaintiffs and substitute the same with tick mark against the names of defendants No.4&5 respectively. An averment / plea of tampering with ballot papers requires pleading and proof of the exact manner in which tampering took place and even if, for the reason of the same being shrouded, it is not possible to prove actual tampering, it is incumbent on a party alleging tampering to establish the possibility thereof i.e. the facts showing the custody of the ballot papers with the party who is alleged to have tampered therewith, out of the gaze of others and for a period of time sufficient to indulge in the acts complained of. There is neither pleading not any other material to the said effect. For this reason also I am of the opinion that the plaintiffs have been unable to make out a case of tampering of the ballots by the defendant no.1 Election Officer.
19. As far as the challenge by the plaintiffs to the action of the defendant no.1 Election Officer in notwithstanding the objection raised by the plaintiffs, not investigating the matter further and rushing to declare the result of the election is concerned, I fail to see any merit therein also. The 16 ballot papers are found by me also on examination to be containing tick mark in ink against the names of the defendants no.4&5 respectively and tick mark in pencil against the names of the two plaintiffs respectively. It is the case of the plaintiffs also that it was so. The plaintiffs have as aforesaid failed to prove that the voters submitting the said ballot papers had voted in favour of the plaintiffs (in as much as they did not put the tick mark in ink against the names of the plaintiffs) or that the defendant no.1 Election Officer had any opportunity to in addition to the tick mark in pencil against the names of the plaintiffs put a tick mark in ink against the defendants no.4&5 and to erase the tick mark in pencil against the names of the plaintiffs (since the ballots were in sealed envelopes which were taken out and opened in the presence of the plaintiffs). In my opinion in the absence of any rules in this regard, the defendant no.1 Election Officer had only two choices in this situation i.e. either to accept the tick mark in ink and in which case the votes on the said ballot papers would have been counted in favour of the defendants no.4&5 or to reject the said ballots. I fail to see as to what purpose the further investigation or forensic examination of the said ballot papers would have served. As aforesaid the tick mark in pencil against the names of the plaintiffs and the tick mark in ink against the names of the defendants no.4&5 is visible to the naked eye itself. The defendant no.1 Election Officer could not be expected to trace the voters who had submitted the said ballot papers or to enquire from the said voters as to in whose favour they had voted. The same was expressly prohibited as per the instructions on the ballot papers. No flaw in the conduct or action of the defendant no.1 Election Officer is thus found and the allegations of the plaintiffs against him found to be baseless.
20. The senior counsel for the plaintiffs save for contending that the defendant No.1 Election Officer should have investigated the matter further has not shown the purpose which such investigation would have served or what such investigation should have been or the authority of the Election Officer to conduct such investigation. The objection of the plaintiffs, of double ticking on ballots, was such of which there was no cure with the Election Officer. The consequence of any ballot being doubt ticked was contained in the instructions aforesaid themselves i.e. of rendering the ballot void. The Election Officer, if my view had no jurisdiction to commence a trial into the objection of the plaintiffs and the proper fora for which is the Court, as has been invoked by the plaintiffs.
21. In view of my aforesaid findings, need is not felt to deal with the other issues of law argued but which are not found to be arising for adjudication or necessary for adjudication of this lis.
22. Neither counsel has argued on the issues no.1&2 which are thus decided in favour of the plaintiffs.
23. As far as the issue no.3 is concerned, as aforesaid, the plaintiffs have failed to even plead or to so prove case of tampering with the ballot papers; the said issue is accordingly decided in favour of the defendants and against the plaintiffs. Resultantly, the issues no.4&5 are also decided against the plaintiffs and in favour of the defendants.
24. The suit is found to be false and frivolous and it appears that the plaintiffs were unable to accept their defeat at the election and have attempted to put a spoke in the joy of the defendants no.4&5 of having won the election. The suit is resultantly dismissed with costs in favour of the defendants; the costs be paid to /recovered by, the defendant no.3. Further exemplary costs of Rs. 10,000/- is also imposed on each of the two plaintiffs also, payable to the defendant no.3 within four weeks hereof. Decree sheet be drawn up. RAJIV SAHAI ENDLAW, J SEPTEMBER 19 2013 pp..