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Rajasthan High Court · body

2009 DIGILAW 1581 (RAJ)

C. P. Joshi v. Kalyan Singh Chouhan

2009-07-10

PRAKASH TATIA

body2009
JUDGMENT 1. - The petitioner has challenged the election of respondent no.1 who was declared elected from Nathdwara Legislative Assembly Constituency No. 176 in Rajasthan for which the election was held on 4.12.2008 and the result was declared on 8.12.2008. In the process of election, the Election Voting Machines (for short "EVM") were used. The petitioner alleged that respondent no.1's wife cast votes at two places in the constituency where from respondent no.1 was declared elected and, therefore, both the cast votes were liable to be rejected being void. It has been also alleged that votes of some of the genuine voters have been cast by other persons by impersonation and, therefore, it will be necessary to decode the EVM and votes which were cast by impersonation are required to be excluded after decoding EVMs and tendered ballot papers cast by the genuine voters be opened and counted. 2. In the election petition, the petitioner in addition to respondent elected candidate, impleaded Election Commission of India as party to whom notice was sent by the order of this Court. Notice was also sent to the elected candidate respondent no.1. Respondent no.2-Election Commission of India submitted preliminary reply on 25.3.2009 and raised objection that the Election Commission of India cannot be implelded as party in the election petition in view of specific provisions made under Section 82 of the Representation of People Act, 1951 (for short "the Act of 1951"). It is submitted that in view of the judgment of Hon'ble Apex Court delivered in the case of Jyoti Basu & ors v. Debi Ghosal & ors, 1982 (1) SCC 691 and in the case of B. Sundra Rami Reddy v. Election Commission & ors, 1991 Suppl. (2) SCC 624 and further in view of the decision of the Hon'ble Apex Court delivered in the case of Micheal Fernandeas v. C.K. Jaffar Sharif & ors, AIR 2002 SC 1041 , because of misjoinder of the party, the name of respondent no.2 be struck off from the array of the respondents. Respondent no.2 on the same ground of impleading Election Commission of India as party in the election petition, prayed that the election petition itself be dismissed on account of impleading Election Commission of India as party and impleading of Election Commission of India as party is violative to Section 82 and 86(1) of the Act of 1951. 3. Respondent no.2 on the same ground of impleading Election Commission of India as party in the election petition, prayed that the election petition itself be dismissed on account of impleading Election Commission of India as party and impleading of Election Commission of India as party is violative to Section 82 and 86(1) of the Act of 1951. 3. Rejoinder has been filed by the election petitioner and it has been stated that since the petitioner has prayed for recounting of votes by excluding votes which have been cast by respondent no.'1 wife at two polling stations and by excluding the votes cast at polling station nos. 27, 61, 73, 117, 190 and 199, therefore, in case this Court will hold decoding of the votes is required, then it can be facilitated by the presence of Election Commission of India in the election petition as party respondent. It is submitted that before preferring the election petition, the petitioner sought information from the Chief Electoral Officer, Rajasthan about decoding of votes cast at a particular serial number on EVM vide letter dated 8.1.2009. The Chief Electoral Officer, Rajasthan referred the matter to the Election Commission of India and the Election Commission of India vide its communication dated 27/28.1.2009 clarified that the manufacturer of EVM namely, M/s Bharat Electonics Limited, Bangalore and M/s Electonic Corporation of India Ltd., Hyderabad have developed a device "Decoder" to detach the particulars of the votes polled on the EVM and to establish as to which voter voted for whom. The petitioner was informed that such facility cannot be obtained without the orders of the competent court. The copy of the letter of the Election Commission of India has been forwarded to the petitioner by the Joint Chief Electoral Officer, Rajasthan, Jaipur vide letter dated 19.3.2009. The petitioner placed on record these two letters. 4. On merit, it has been submitted that Section 82 of the Act of 1951 only requires impleadment of certain persons as party but it does not provide that persons other than those who have been mentioned in Section 82 of the Act of 1951 shall not be impleaded as party respondents. Therefore, impleadment of party to the election petition who is not mentioned in Section 82 of the Act of 1951 cannot be said to be in violation of Section 82 of the Act of 1951. Therefore, impleadment of party to the election petition who is not mentioned in Section 82 of the Act of 1951 cannot be said to be in violation of Section 82 of the Act of 1951. It has been stated that presence of Election Commission of India before this Court in this election petition may facilitate disposal of the election petition expeditiously in the spirit of Section 86(6) of the Act of 1951. Section 86(6) of the Act of 1951 provides early disposal of the election petition. It has been stated that the judgments referred in the application of respondent no.2- Election Commission of India have no application to the facts of this case because issue of decoding of votes cast through EVM is involved and in one of the case,i.e. T.A. Ahammed Kabeer v. A.A. Azeez and others, (2003) 5 SCC 650 , the Election Commission of India was duly represented through its counsel. 5. The learned counsel for the parties submitted oral arguments and relied upon the judgments referred above and other judgments also in support of their contentions, which in detail requires no reference because of the plain and simple reason that even if best of the best case of the petitioner is accepted that the other persons other than the persons referred in Section 82 of the Act of 1951 can be impleaded as party in the election petition filed under the provisions of the Act of 1951 then according to the petitioner himself, the Election Commission of India has been impleaded as party in the election petition to facilitate the process of decoding of EVMs, then factually it has no basis because of the reason that the Election Commission of India neither itself can decode the EVMs nor EVMs are required to be decoded through the Election Commission of India and the court's direction is required to be given to whom, who can decode the EVMs. The Election Commission of India already conveyed to the petitioner that decoding cannot be obtained without orders of the competent court. Therefore, the Election Commission of India also has no power or jurisdiction to ask the manufacturer of EVM,namely, M/s Bharat Electonics Limited, Bangalore and M/s Electonic Corporation of India Ltd., Hyderabad to detach the particulars of the votes polled on the EVM and to establish as to which voter voted for whom. Therefore, the Election Commission of India also has no power or jurisdiction to ask the manufacturer of EVM,namely, M/s Bharat Electonics Limited, Bangalore and M/s Electonic Corporation of India Ltd., Hyderabad to detach the particulars of the votes polled on the EVM and to establish as to which voter voted for whom. The election petition is required to be decided expeditiously and impleading of Election Commission of India in this case, in fact, is found to be unnecessary and the presence of Election Commission of India in this election petition cannot facilitate early disposal of the election petition nor it can help for decoding of the EVMs if needed. 6. Further more, in the case of Ahammed Kabeer v. A.A. Azeez and others, (2003) 5 SCC 650 , the Election Commission of India was represented by its counsel but the Election Commission was not admittedly party respondent in the election petition. 7. Therefore, the preliminary objection raised by respondents no.1 and 2 is allowed and the respondent no.2- Election Commission of India is deleted from the array of the party. Necessary correction be made in the original petition today itself in court in red ink.Preliminary Objection Rejected. *******