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2019 DIGILAW 2722 (ALL)

Irshad Fatma v. State of U. P.

2019-12-06

SIDDHARTHA VARMA

body2019
JUDGMENT : 1. Upon the declaration of the result on 13.12.2015 of an election which was held on 9.12.2015 for the post of Pradhan, an Election Petition was filed by the petitioner Irshad Fatma. 2. The Election Petition was initially dismissed on 5.2.2018 and the Revision thereafter filed by the petitioner was allowed on 31.5.2018. The matter was remanded with a direction that the Election Petition be decided afresh. When the remand was made a direction was issued by the Revisional Court itself that a re-count be done and also findings regarding two issues were asked to be returned. They were:- I. whether 2238 or 2228 votes were cast? II. And whether the election petitioner had got 985 votes or more? 3. Before the Election Tribunal, even before the order dated 5.2.2018 was passed, another candidate who had contested the election, namely, Sakeena had filed an application for rejecting the Election Petition filed by the petitioner stating that the same was not maintainable as Assistant Election Officer and the Election Officer were not made a party in the petition. This application of Sakeena was rejected by the Election Tribunal on 27.1.2016. The Revision filed thereafter was dismissed on 10.8.2017 and Sakeena thereafter had filed a writ petition being Writ-C No. 3430 of 2018 in which the proceedings of the Election Petition was initially stayed on 7.2.2018. But upon coming to know that the Election Petition itself had been decided on 5.2.2018 the writ petition was dismissed as having become in-fructuous on 20.12.2018. 4. Upon coming to know that on 31.5.2018, the Revisional Court had remanded the matter, Smt. Sakina who had got just one vote in the election once again filed a Writ Petition in this Court being a Matter Under Article 227 and was numbered as Petition No. 292 of 2019. This writ petition was disposed of on 24.1.2019 without much of interference as the order impugned was an order by which a remand had been ordered and the election petitioner's counsel had stated that he would implead the necessary parties in the Election Petition as the petitioner in the writ petition had desired. 5. A direction was further issued that the Prescribed Authority/Election Tribunal had to decide the Election Petition within a period of six months from the date of presentation of a certified copy of the order dated 24.1.2019. 5. A direction was further issued that the Prescribed Authority/Election Tribunal had to decide the Election Petition within a period of six months from the date of presentation of a certified copy of the order dated 24.1.2019. On 6.2.2019, the Prescribed Authority passed an order that the recounting of votes as per the Revisional Court's order dated 31.5.2018 had to be done on 12.2.2019. However, the recount was done on 18.2.2019. Against the order dated 6.2.2019 by which the recount was ordered, the respondent no. 4 Smt. Zeenat Fatima filed a writ petition being Writ C No. 5738 of 2019 wherein it was ordered that the recount would go on but the result would be kept in sealed cover and shall not be declared. The order dated 18.02.2019 passed by the learned Single Judge in Writ-C No.5738 of 2019 was put to challenge in a Special Appeal being Special Appeal No. 422 of 2019. This Special Appeal was, however, dismissed on 5.4.2019. In the meantime, the recount had been done and, therefore, the Writ C No. 5738 of 2019 was dismissed on 26.3.2019. On the basis of the recounting which was done on 18.2.2019, the Prescribed Authority on 24.4.2019 decided the Election Petition and allowed the same in favour of the petitioner. The petitioner had in the recount obtained 988 votes as against 981 votes which the respondent no. 1, the earlier elected candidate had got. 6. This order 24.4.2019 was challenged by the respondent no. 4 Zeenat Fatma in Revision No. 1 of 2019. When this revision was allowed on 23.10.2019, the instant writ petition was filed. 7. The respondent no. 4 was represented by Sri Syed Ahmed Faizan and Sri S.F.A. Naqvi. Since for the decision of the present petition under Article 227 of the Constitution of India, the requirement of counter affidavits from the other private respondents was not required, the instant writ petition was heard finally. 8. Learned counsel for the petitioner has submitted that the grounds on the basis of which the Revision was allowed were not tenable. Learned counsel for the petitioner has submitted that when the recount was done on 18.2.2019 on the basis of the remand order of the Revisional Court dated 31.5.2018 then no further findings were required as were desired in the order of remand dated 31.5.2018 of the Revisional Court. 9. Learned counsel for the petitioner has submitted that when the recount was done on 18.2.2019 on the basis of the remand order of the Revisional Court dated 31.5.2018 then no further findings were required as were desired in the order of remand dated 31.5.2018 of the Revisional Court. 9. Learned counsel for the petitioner submits that it mattered little as to whether 2238 or 2228 votes were cast. Also learned counsel for the petitioner submitted that a decision as to whether the earlier counting had gone wrong as four votes were mixed in other bundles also lost its importance as a complete re-count was done and, therefore, nothing further was required to be done. 10. Learned counsel for the petitioner relying upon a decision of the Supreme Court reported in 1994 Supp (2) SCC 619 (A. Neelalohithadasan Nadar vs. George Mascrene and Others) submitted that principles of secrecy of ballot box must yield to the principle of purity of an Election in larger public interest. Since learned counsel for the petitioner read out paragraphs no. 10, 11, 12, 13 and 14 of the judgment, they are being reproduced here as under:- “10. The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill v. Gurcharan Singh Tohral. But this right of the voter is not absolute. It must yield to the principle of "purity of election" in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. "Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. "Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. It was observed by this Court in Raghbir Singh case' as follows (SCR p. 1320: SCC p. 68, para 23) "Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can coexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play." 11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process. 12. That both the election petition and recrimination petition were dealt with on the principle of "purity of election" is not in dispute. The approach of the High Court on the subject on the commonality of the attack also cannot be questioned. But what was questioned by Mr Prashant Bhushan, as reiterated in his written submissions of 14-9-1993, was that the High Court was not correct in allowing examination of marked copies of electoral rolls and counterfoils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleadings in the election petition regarding void voting, there was no cause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned counsel as 'fishing or roving'. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall not be 1 1980 Supp SCC 53 : (1980) 3 SCR 1302 opened and their Contents inspected by, or produced before, any person or authority except under the orders of a competent court. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection could only be allowed when two conditions are satisfied: 1. The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded; and 2. The Court must be satisfied on evidence, even if in the form of Support for these principles was sought from Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 , 247-50 : AIR 1964 SC 1249 : 26 ELR 14, Hariram v. Hira Singh, (1984) 2 SCC 36 : (1984) 1 SCR 932 , 937, R. Narayanan v. S. Semmalai, (1980) 2 SCC 537 , Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 , 783 (para 31) : 28 ELR 81, Jitendra Bahadur Singh v. Krishna Behari, (1969) 2 SCC 433 , 436 ( para 7) : (1970) 1 SCR 852 , 856-885 and other decisions of the like. 13. But by and large these are cases where there was a claim for recount. In contrast the instant case is of double voting which has specifically been pleaded in the election petition filed on 29-7-1991 supported by affidavit and the names of the voters have been supplied in the lists annexed thereto. The appellant had filed recrimination petition pleading that there were several other cases of double voting and reception of invalid votes in favour of the election petitioner. This written statement-cum- recrimination petition was filed on 10-9-1991. Issues were framed on 20-9-1991. The election petitioner on 26-9-1991 was allowed to amend the Election Petition so as to include 10 more cases of double voting. This written statement-cum- recrimination petition was filed on 10-9-1991. Issues were framed on 20-9-1991. The election petitioner on 26-9-1991 was allowed to amend the Election Petition so as to include 10 more cases of double voting. The corresponding amendment application filed by the appellant for taking into account details of double voting having taken place in another neighbouring constituency was rejected by the High Court for it was based on a new charge. The second amendment application of the election petitioner was allowed on 7-10-1991 so as to include 23 more cases of alleged double voting. It is at that stage that is on 7-10-1991 that the Court permitted inspection of the counterfoils since several double voters had been summoned for the following day to appear on 8-10-1991 and subsequent days, on the oral prayer/application of both the election petitioner and the appellant. The court apparently took into account that since witnesses were to be examined on the question of their double voting and were expected to take a positive stand, it would become necessary to corroborate or confront them with the counterfoils of the ballot papers issued to them which purported to have been signed or not by them, in order to save time lest examination of the witnesses be time consuming. The Court allowed inspection of the roll and counterfoils in order to facilitate evidence of the witnesses on the date of their appearance, which was the following day. The suggestion no doubt was oral but the Court seemed to agree with the suggestion and inspection was permitted to both parties in the presence of the Registrar. The commonality of the approach of the parties on the question of double voting must have clearly goaded the Court to adopt such measure to facilitate quick trial. It is the case of the election petitioner that the counsel for both the parties inspected the counterfoils on 7-10-1991 in the Registrar's room as also on subsequent days, even though there was no written application made and there was no formal written order of the Court. Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. In the facts and circumstances, we fail to see how the principle of secrecy of ballot can be imported to question the power of the Court to orally allow inspection in its endeavour to eliminate the impurity in elections, the opportunity provided having been availed of without demur by both parties. In this situation, it is difficult for us to digest the argument that here the High Court proceeded to allow inspection without being satisfied on evidence, even in the form of affidavit, that it was necessary to allow inspection in the interest of justice. Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition (as amended from time to time) and the recrimination petition, it was necessary to correlate their names with the electoral rolls and the counterfoils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process could be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for re-count. We are thus of the view that the High Court committed no error in permitting such inspection in the facts and circumstances. We must, however, hasten to clarify that we should not be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief. 14. We must, however, hasten to clarify that we should not be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief. 14. Another argument put forth by Mr Prashant Bhushan was that the pleadings in the election petition were insufficient to justify inspection inasmuch as except for mentioning that there had been double voting by 19 persons nothing else was stated about the basis on which the election petitioner came to the conclusion that these names, which apparently had appeared twice in the electoral roll, belonged to one and the same person and that those persons had in fact voted twice. It was also commented that no material facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice. was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double registration of votes and possible double voting. We have pondered over this matter but regretfully do not accept the argument of the learned counsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations, Section 62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of Section 62(4) welling impossible. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of no use, and at best would be word against word, making application of Section 62(4) welling impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need not ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point; the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question was not resoluble merely on oral evidence, whether they had or had not, except to put those persons into the witness box, hear their version and confront them with the election papers. The sphere of enquiry at that stage is to the voting and not for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find no error committed in the approach of the High Court.” 11. Learned counsel for the petitioner also relied upon T.A. Ahammed Kabeer vs. A.A. Azeez and Others reported in 2003 (6) AIC 601 (S.C.) and since he specially referred to the paragraphs no. 26, 27, 28 and 29 of the judgment, they are being reproduced here as under:- “26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. 26, 27, 28 and 29 of the judgment, they are being reproduced here as under:- “26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only be should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. 27. Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. As held by the Constitution Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors., an Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order XI of Code of Civil Procedure. Inspection of documents under Rule 15 of Order XI of Code of Civil Procedure may be ordered of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents in the possession or power of the other party. Inspection of documents under Rule 15 of Order XI of Code of Civil Procedure may be ordered of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order XI of Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers which power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules 1961. This power to order inspection of the ballot papers which is apart from Order XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1). However, the Constitution Bench has cautioned, by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interests of justice. 28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 29. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. 29. So also, once the Court exercise its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevant for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to.” 12. He, therefore, submitted that when there was recounting done and that too on the basis of a valid order of the Revisional Court which had never been put to challenge by the respondent no.4, then the result of the recount alone should prevail and no further findings on other issues were required. 13. Learned counsel for the petitioner further submitted that it mattered little that as per the order dated 24.1.2019 of the High Court, the Election Officer had not been made a party as in Rule 3(2) of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as 'the 1994 Rules') only such persons whose election had been questioned were to be impleaded as parties. The unsuccessful candidates had also to be arrayed as respondents in the election petition. As learned counsel for the petitioner heavily relied upon Rule 3(2) of the 1994 Rules, the same is being reproduced here as under:- 3. Election Petition. The unsuccessful candidates had also to be arrayed as respondents in the election petition. As learned counsel for the petitioner heavily relied upon Rule 3(2) of the 1994 Rules, the same is being reproduced here as under:- 3. Election Petition. – (2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application. 14. Learned counsel further relied upon 2 decisions of the Supreme Court reported in 2002 (3) SCC 521 (Michael B. Fernandes vs. C.K. Jaffer Sharief and Others) and AIR 1982 SC 983 (Jyoti Basu and others v. Debi Ghosal and others) and submitted that only relevant parties had to be arrayed in the election petition. Learned counsel for the petitioner submitted that even though the nonimpleadment, despite an assurance in the High Court, was something which had to be decried, but on that basis the Revisional Court could not have allowed the Revision. 15. Learned counsel appearing for the respondent no. 4, however, submitted that when there was a specific remand made by the Revisional Court by its order dated 31.5.2018 then the grounds on the basis of which the remand was made ought to have been addressed and the Prescribed Authority could not have traveled beyond the remand order. 16. Learned Standing Counsel adopted the arguments made by the counsel for the respondent no.4. 17. Having heard the learned counsel for the petitioner, the learned counsel for the respondent no. 4 and the learned Standing Counsel, I am of the view that when there was no allegation with regard to outside votes being included by the counting authorities and the only allegation was with regard to wrong counting of votes cast in favour of the petitioner then a re-count was the only method by which the Prescribed Authority could have found out as to whether the counting was done properly. 18. In the instance case, when the recounting had been done and it was found that 988 votes were cast in favour of the petitioner, which number was greater than the votes which were cast in favour of the respondent no. 4 then no further findings with regard to the other issues were required. 18. In the instance case, when the recounting had been done and it was found that 988 votes were cast in favour of the petitioner, which number was greater than the votes which were cast in favour of the respondent no. 4 then no further findings with regard to the other issues were required. Finding with regard to votes which had been cast in favour of the petitioner had put to rest the controversy and returning of findings with regard to other controversies would have been an exercise in futility. 19. So far as the question of impleading the Election Officer was concerned I hold that when the requirement of Rule 3(2) of the 1994 Rules was not there then it was not essential to implead the Election Officer at all. However, the petitioner in the writ petition ought to have been more cautious in giving statements before the High Court. The practice of giving statements before the High Court and not following them is decried. 20. Under such circumstances, I find that the Revisional Courts order dated 23.10.2019 passed by the Additional District Judge Room No. 4, Amroha, District – Amroha in Panchayat Raj Revision No. 1 of 2019 (Zeenat Fatma vs. Irshad Fatma and others) cannot be sustained in the eyes of law and thus is set aside. The writ petition is allowed. 21. The petitioner shall now, in view of the order dated 24.4.2019 passed by the Prescribed Authority in the Election Petition, shall be treated as a Pradhan of Gram Panchayat Fanderi, Tehsil Dhanaura, District- Amroha.