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2016 DIGILAW 1663 (RAJ)

Dinesh Singh S/o Shri Girdhari Singh v. Puran Singh S/o Shri Vijay Ram

2016-11-18

MOHAMMAD RAFIQ

body2016
JUDGMENT : Mohammad Rafiq, J. 1. These two writ petitions have been filed by Dinesh Singh, elected Sarpanch of the Gram Panchayat Hantra. In Writ Petition No. 12899/2016, the petitioner has challenged order dated 02.09.2016 passed by Senior Civil Judge, Nadbai, District Bharatpur (for short 'the Election Tribunal') whereby application under Order 11, Rule 14 CPC read with Section 151 CPC filed by Respondent No. 1-election petitioner has been allowed and District Election Officer, Bharatpur has been directed to produce the marked voters list and ballot papers concerning the election of Sarpanch of Gram Panchayat Hantra held on 24.01.2015. Writ Petition No. 13053/2016 is an offshoot of the aforesaid order and has been filed challenging order dated 09.09.2016 passed by the Election Tribunal whereby the application of the petitioner praying for not summoning of the aforesaid documents as they are secret documents and should not be summoned till the issues are framed, nor their copies be supplied, has been dismissed. 2. Mr. Saransh Saini, learned counsel for the petitioner referring to Rules 36, 40, 49 and 53 of the Rajasthan Panchayat Raj (Election) Rules, 1994 (for short 'the Rules') has argued that highest sanctity has to be attached to the secrecy of the elections. Allegation of Respondent No. 1 is that six voters exercised their votes in favour of the petitioner and they also cast their votes in the Gram Panchayat Gurdhanadi, which fact finds mention in para 6 of the election petition. Similarly, 10 persons who exercised their votes in Gram Panchayat Hantra also cast their votes in election of Gram Panchayat Chichana. This plea cannot be accepted on mere ipse dixit of Respondent No. 1. Out of 13 issues framed by the Election Tribunal, not a single issue has been adjudicated yet and evidence of concerned authorities is yet to be adduced. It was premature on the part of the Election Tribunal to direct summoning of the aforesaid documents. The Election Tribunal has passed order without taking into consideration purport of Order 11, Rule 14 CPC. Impugned orders clearly reflect non-judicious use of discretion by the Election Tribunal. The Election Tribunal failed to appreciate that burden of proof lies on the party, who makes the allegation and the court cannot act in a manner to arrange the evidence for the parties. Impugned orders clearly reflect non-judicious use of discretion by the Election Tribunal. The Election Tribunal failed to appreciate that burden of proof lies on the party, who makes the allegation and the court cannot act in a manner to arrange the evidence for the parties. It is argued that the Election Tribunal has wrongly dismissed the application filed by the petitioner as the aforesaid documents are secret and confidential documents. Filing of the application by Respondent No. 1 is an attempt at roving enquiry into the process of elections, which ought not to have been allowed by the Election Tribunal. Even the recounting of the ballet papers cannot be made by the court which has to be done by the returning officer. Learned counsel for the petitioner, in support of his arguments, relied upon the judgments of the Supreme Court in Chandrika Prasad Yadav v. State of Bihar & Others, (2004) 6 SCC 331 ; Gursewak Singh v. Avtar Singh & Others, (2006) 4 SCC 542 ; Kalyan Singh Chouhan v. C.P. Joshi, (2011) 11 SCC 786 ; M. Chinnasamy v. K.C. Palanisamy & Others, (2004) 6 SCC 341 ; judgment of this Court in Gurtej Singh & Others v. Assistant Registrar-Cum-Arbitrator Co-operative Societies & Others, 2012 WLC(Raj.) UC 774. 3. Mr. Mahendra Goyal, learned counsel for the respondent No. 1 has opposed the writ petitions and argued that orders passed by the Election Tribunal are perfectly justified. The petitioner won the election by small margin of six votes. It happened because 16 voters were such, who had cast their vote in other Gram Panchayats as also in the Gram Panchayat Hantra. In order to arrive at truth, it was necessary for the Election Tribunal to summon the marked voters list of the polling booths where they cast their votes. Referring to Rule 63(3) of the Rules, learned counsel argued that ballet papers and marked voter list etc., being confidential documents were sealed after declaration of result, which could not be reopened without their being order of the court. Argument of the petitioner that the court cannot arrange for production of evidence on behalf of the election petitioner is therefore wholly misconceived. Summoning of documents cannot be considered to be a roving enquiry. Argument of the petitioner that the court cannot arrange for production of evidence on behalf of the election petitioner is therefore wholly misconceived. Summoning of documents cannot be considered to be a roving enquiry. Learned counsel cited judgment of the Supreme Court in Smt. Rekha Rana v. Jaipal Sharma & Others, (2009) 17 SCC 115 and argued that in that case also, marked electoral rolls were summoned and exhibited, which was objected to by the returned candidate. Election petitioner in that case also took similar plea that till specific order was passed by the court in that behalf marked electoral rolls could not be opened and therefore, filed an application which was allowed by the High Court, which order was upheld by the Supreme Court. 4. On hearing learned counsel for the parties and perusing the material on record, I find that none of the judgments, which the learned counsel for the petitioner has cited, is dealing with the question whether the documents summoned could be allowed to be summoned. On the contrary, judgment cited by the learned counsel for Respondent No. 1 deal with the issue with which this Court is presently concerned. In Smt. Rekha Rana (supra), the High Court of Punjab and Haryana at Chandigarh observed that ultimate truth in respect of clear allegations levelled by the election petitioner can only be arrived at on the basis of the marked electoral rolls and by grant of said prayer, the norms of "secrecy of ballot" would not be violated. Upholding the said order, the Supreme Court in Para 13 and 14 of the Judgment held as under: "13. As already noted above, the case of the election petitioner, pleaded in the election petition, is that a number of votes had been cast by impersonating electors, who were either not available in the constituency on the date of election or had died much prior to the date of election or were serving jail sentences or were abroad on the relevant date. The factum of casting of votes by a particular elector could be proved only on the basis of marked electoral rolls. More so, when the names of the voters who were alleged to have double voted or have died etc., were specifically mentioned in the election petition. The factum of casting of votes by a particular elector could be proved only on the basis of marked electoral rolls. More so, when the names of the voters who were alleged to have double voted or have died etc., were specifically mentioned in the election petition. From a marked electoral rolls, it is only possible to ascertain whether or not a vote had been cast in the name of a voter from a particular polling booth but it is never possible to decipher therefrom as to who is the beneficiary of the said vote as there is no indication on the electoral roll showing for whom the voter had cast his vote. It is to be borne in mind that the marked electoral roll is maintained primarily for the purpose of identifying the elector and as such, we fail to see how its production would impair the "secrecy of ballot" principle. Accordingly, we reject the contention of learned counsel for the appellant on this aspect. 14. We feel that having regard to the nature of allegation, the stand of the appellant must also fail when tested on the touchstone of the "purity of election" principle as enunciated in Raghbir Singh Gill's case (supra). Sub-Sections (4) and (5) of Section 62 of the Act respectively bar double voting and voting by a person who is confined in a prison for any reason and a vote cast by any such person shall be void. As observed in A. Neelalohitadasan Nadar's case (supra), 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 pre-supposes a validly cast vote, the sanctity and sacrosanct of which must in all events be preserved. Therefore, we are in complete agreement with the High Court that on the pleadings of the parties, a case for inspection of the marked electoral roll had been made out. We do not find any infirmity in the impugned direction warranting our interference." 5. Therefore, we are in complete agreement with the High Court that on the pleadings of the parties, a case for inspection of the marked electoral roll had been made out. We do not find any infirmity in the impugned direction warranting our interference." 5. The Supreme Court in the aforesaid case relied on its earlier judgment in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra & Others, (1980) 3 SCR 1302 wherein it was observed that any interpretation of Section 94 of the Representation of Peoples Act must essentially sub-serve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and not retard it. Following observations of the Supreme Court in the aforesaid case are worth reproduction: "If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections." 6. Noticing that the Act is a self contained Code on the subject of elections and reiterating that "there is one fundamental principle which permeates through all democratically elected parliamentary institutions, viz., to set them up by free and fair elections, the Court observed thus: "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 co-exist 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." 7. 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." 7. A three Judge Bench of the Supreme Court in A. Neelalohitadasan Nadar v. George Mascrene & Others, (1994) 3 SCR 437, after following its earlier judgment in S. Raghbir Singh Gill (supra), on this aspect observed as under: "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 pre-supposes a validly cast vote, the sanctity and sacrosanct 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. Thus, the Court reiterated that out of the two competing principles, the "purity of election" principle must have its way and that the "rule of secrecy" as contemplated in 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." 8. In view of law enunciated above, it must be held that purpose of the Election Tribunal in summoning the aforesaid documents was to unearth the truth and secrecy of ballots cannot be used as a tool to defeat the very purpose of holding free and fair elections and to suppress a wrong coming into light and to protect a fraud on the election process. The principle of secrecy of ballot will have to yield to the larger principle of free and fair elections. 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. 9. In view of above, there is no merit in both the writ petitions and the same are accordingly dismissed. Stay applications also stand dismissed. 9. In view of above, there is no merit in both the writ petitions and the same are accordingly dismissed. Stay applications also stand dismissed. Office is directed to place a copy of this order on record of connected writ petition.