Sh. Bheeshma Sharma vs Sh. Sahab Singh Chauhan & Ors.
2010 Latest Caselaw 1446 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              IA.No.1624/2009 in Election Petition No.10/2009

 %                                              Date of decision: 16th March, 2010

SH. BHEESHMA SHARMA                                           ..... PETITIONER
                                    Through: Mr. Harish Malhotra, Sr. Advocate with
                                             Mr. Vikas Arora & Mr. Ajay Marwah,
                                             Advocates

                                           Versus

SH. SAHAB SINGH CHAUHAN & ORS.                              ..... RESPONDENTS
                                    Through: Mr. Alok Kumar & Mr. U.S. Chaudhary,
                                             Advocates for Respondent No.1

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.          Whether reporters of Local papers may
            be allowed to see the judgment?                  YES

2.          To be referred to the reporter or not?           YES

3.          Whether the judgment should be reported                YES
            in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner has filed this election petition under Section 81, 82,

84, 100 & 101 of the Representation of People's Act, 1951 for setting aside

of the election held on 29th November, 2008 for the post of Member of

Legislative Assembly of Delhi from Assembly Constituency No.66,

Ghonda, Delhi. As per the results of the said election declared on 8th

December, 2008, a total of 91596 votes were cast with the respondent no.1

securing 35226 votes and the petitioner securing 34646 votes and the

balance 21724 votes were secured by the respondent no.2. The margin by

which the respondent no.1 won over the petitioner was thus of 580 votes.

2. Though the petition has been filed on several grounds but one of the

grounds is of improper rejection of valid votes which under Section 100 of

the Act is a ground for setting aside of the election. It is inter alia the plea

of the petitioner that as per the copies of Form 17C under the Conduct of

Election Rules 1961 supplied to the polling agent of the petitioner in terms

of Rule 49(S), a total of 94222 votes were cast; the same figure was also

published in the newspapers on 1st December, 2008. It is thus the case of

the petitioner that the numbers of votes counted are short by 2626 votes

which have been improperly rejected. It is thus the case of the petitioner

that if all the 94222 votes polled had been counted, the respondent no.1

could not have won, the margin of his win being of 580 votes only. The

petitioner has also pleaded differences in total votes polled as given in

Form 17C and as in the final result with respect to at least 5 polling

stations. It is stated that while the number of votes polled at polling station

no.8 were stated in copy of Form 17C supplied to the polling agent of the

petitioner as 398, in the final result-sheet, the number of votes polled at the

same polling station is shown as 598. Similar such differences have been

pleaded with respect to polling station Nos. 39, 41,155 & 157 also. It is the

plea of the petitioner that such differences in the votes polled are

unexplained. A variation of 280 votes is pleaded in the aforesaid five

polling stations only.

3. The petitioner alongwith the election petition has filed an application

being I.A. No.1624/2009 for ad-interim order for preserving of the polling

machines and recounting of the total votes polled.

4. The elections at all the polling stations were through Electronic

Voting Machines (EVMs).

5. This Court vide ex parte order dated 4th February, 2009 while issuing

notice of the election petition, on the aforesaid application of the petitioner,

directed preservation of the polling machines with respect to the polls for

the said constituency. Subsequently, on application being IA No.5117/2009

of the Election Commission of India, in view of the requirement of the

EVMs for the then ensuing parliamentary elections, it was directed that

only the control units of the EVMs be preserved and the balloting units of

the EVMs were permitted to be used for the parliamentary elections. The

said order continues to be in force.

6. The counsels for the petitioner and the respondent no.1 have been

heard on the application of the petitioner for interim order for recounting.

Though the respondent no.1 has also filed an application under Order 7

Rule 11 of the CPC but the counsel for the respondent no.1 stated that

rejection of the election petition on grounds other than aforesaid has been

sought in the said application and the grounds taken in the said application

for rejection of the election petition so far as recounting is concerned have

been urged by the counsel for the respondent no.1 in opposition to this

application. The senior counsel for the petitioner on instructions also stated

that if this application for recounting is allowed, the petitioner will base his

case only on the ground of recount and will not press other grounds on

which election is challenged.

7. I may mention that the petitioner has claimed recounting also for the

reason of the respondent no.1, in the final result having been shown to have

secured more votes than the petitioner in certain areas of the assembly

constituency and which it is pleaded he could not have secured because of

communal reasons. The said ground urged by the petitioner for recounting

was rejected at the time of hearing only and is not being considered for the

present purpose also and in any case being incapable of adjudication

without trial.

8. The senior counsel for the petitioner invited attention to Gursewak

Singh Vs. Avtar Singh AIR 2006 SC 1791 in turn relying on Chandrika

Prasad Yadav Vs. State of Bihar (2004) 6 SCC 331 for the proposition that

an order of recounting can be passed when a prima face case based on

pleading of material facts stating irregularities in counting of votes is found

but a roving and fishing inquiry cannot be made while directing recounting

of votes. Attention is also invited to Sadhu Singh Vs. Darshan Singh

(2006) 6 SCC 255 to the same effect and also laying down that the secrecy

of ballot papers should be maintained. He also urges that Forms 17C filed

by the petitioner alongwith the petition, as required by law bear the

signatures of all the parties and/or their polling agents and contends that if

the number of votes polled had been less as made out in the final result,

they could not have been shown as more. On enquiry whether there is any

restriction in ordering recounting, the senior counsel for the petitioner

contends that the Court would be entitled to deny recounting if such

recounting would be immaterial considering the margin of victory. It is

contended that in the present case, it is not so and the difference of 2626

votes can have a vital bearing on the result of the election which declares

the respondent no.1 as successful by a margin of 580 votes only. He

contends that the said 2626 votes have not been counted and if counted can

sway the result of the election. He further states that if recounting is

allowed, no trial would be necessary.

9. The respondent no.1 has vehemently opposed the application for

recounting or for the same being considered before trial. The counsel has

drawn attention to Rule 63 providing for recounting of votes. Thereunder a

candidate or his election agent is entitled to apply in writing to the

Returning Officer for recounting of the votes after announcement has been

made of the total number of votes polled by each candidate. Under Sub-

Rule (3), on said application being made, the Returning Officer is to decide

the matter and is entitled to either allow the application in whole or in part

or reject it in toto if it appears to be frivolous or unreasonable. It is

contended that the petitioner did not make any such application for

recounting. I have enquired from the counsel whether non filing of such an

application can debar the petitioner from claiming the relief of recounting

in this petition. The counsel has not been able to cite any law or precedent

to the said effect. I however find that though in Smt. Ram Rati Vs. Saroj

Devi AIR 1997 SC 3072 a two Judge Bench of the Supreme Court had held

that it is incumbent upon a candidate to make an application for recounting

to the Returning Officer and if it is not done then the Court is not

empowered to direct recounting, but subsequently a three Judge Bench of

the Supreme Court in Sohan Lal Vs. Babu Gandhi AIR 2003 SC 320

disagreed with the said view and held that there is no prohibition against

the Court directing a recounting of the votes in the absence of the candidate

having not made an application for recounting before the Returning

Officer. It was held that a party may not know that the recounting is

necessary till after the result is declared and at that stage, it would not be

possible for him to apply for recounting to the Returning Officer and his

only remedy would be to file an Election Petition and the Court in such a

petition is bound to consider the plea and where a case is made out, direct

recounting depending upon the material before it. Thus there is no merit in

the said contention of the counsel for the respondent no.1.

10. The counsel for the respondent no.1 next contended that the only

grounds for declaring the election bad are provided in Section 100 of the

Act and none of the said grounds are made out in the present case. It is

urged that refusal or rejection of any vote within the meaning of Section

100(1)(d)(iii) can only mean not allowing to vote and no such case is made

out in the present case. I am however not convinced with the said argument

also of the counsel for the respondent no.1. If it is found that some of the

votes though polled have not been counted it would fall within the meaning

of improper rejection or reception of a vote within the meaning of Section

100(1)(d)(iii) (supra). I am also of the view that the same would also fall

within the meaning of non compliance with the provisions of the Act and

the Rules under Section 100(1)(d)(iv). Under the Act and the Rules, all the

valid votes polled have to be counted and non counting of any votes polled

would be a non compliance with provisions of Act and the Rules within the

meaning of Section 100(1)(d)(iv) also. Even otherwise, I am unable to

fathom that if such a mistake has in fact occurred, there is no redressal

therefor and/or that anyone can be permitted to take advantage of such a

situation if has occurred. Upon this view being expressed, the counsel

drew attention to Jyoti Basu Vs. Debi Ghosal AIR 1982 SC 983 to contend

that a right to be elected is, anomalously enough, neither a fundamental

right nor a Common Law Right and is a pure and simple statutory right; so

is the right to dispute an election; outside of statute, there is no right to be

elected and no right to dispute an election. That case related to

impleadment of persons alleged to be guilty of corrupt practices in an

election but otherwise not party to the election, as parties in the election

petition. I find it a little difficult to digest that even if the court is satisfied

of a defect in counting, the same cannot form a ground of ordering recount

or cannot be treated as a ground for setting aside of election. Be that as it

may, the grounds mentioned in Section 100 are found to be very wide and /

or are required to be interpreted widely to prevent a potential mischief from

being perpetuated.

11. The counsel for the respondent No.1 next contended that mere

improper rejection or refusal of any vote is not a ground under Section 100

(1)(d)(iii); such improper rejection has to materially affect the result of the

election in so far as it concerns a returned candidate. The contention is that

such mistake even if any in not counting 2626 votes can form a ground

within the meaning of Section 100(1)(d)(iii) only upon it being shown by

leading evidence that if the said 2626 votes had been counted, they would

have been procured by the petitioner resulting in the respondent no.1 losing

the election. It is further urged that the onus of proving the same is on the

petitioner and which onus can be discharged only after the evidence has

been led. It is thus urged that the Court without finding a ground within the

meaning of Section 100 (1)(d)(iii) cannot order recounting.

12. I have enquired from the counsel for the respondent no.1, as to what

possible evidence can the petitioner lead to show that the uncounted votes

if any would have been secured by the petitioner so as to raise the

petitioner's tally of vote above that of the respondent no.1. The counsel

for the respondent no.1 fairly conceded that no such evidence can be lead

by the petitioner. I then enquired from the counsel, if no such evidence

could be led, why should the recounting, if otherwise the Court is satisfied

is called for, be postponed till the post evidence stage. The counsel in

response draws attention to Vashist Narain Sharma Vs. Dev Chandra AIR

1954 SC 513 where the Supreme Court in relation to an election dispute

held that even if the result of it being impossible for the petitioner to

adduce evidence of a ground under Section 100 being made out is harsh to

the petitioner seeking to set aside the election, the Court is not concerned

with the inconvenience resulting from the operation of the law and it is for

the legislature to re-consider the matter. Even though I am humbly of the

opinion that jurisprudentially the Supreme Court has progressed much

since 1954 but it is not within my competence to comment on the matter

inasmuch as I am bound by the said law. I may however notice that

Vashist Narain Sharma (supra) has been overruled on another aspect in

Ramanbhai Ashabhai Patel Vs. Dabhi Ajitkumar Fulsingji AIR 1965 SC

669. I also notice that in V.S. Achuthanandan Vs. P.J. Francis (1999) 3

SCC 737 the Supreme Court had held that free, fair, fearless and impartial

elections are the guarantee of a democratic policy - Effective mechanism is

the basic requirement for having such election - For conducting, holding

and completing the democratic process, a potential law based upon

requirements of the society tested on the touchstone of the experience of

times is concededly of paramount importance. It was further held that a

balanced judicial approach in implementing the law relating to franchise is

the mandate of the court. The law relating to accomplishment of

democratic process by holding the elections is not required to be so

liberally construed as to frustrate the will of the people expressed at the

election and not too rigidly applied which may result in shaking the

confidence of the common man in the institution entrusted with the noble

task of establishment of the rule of law.

13. This Court is of the firm view that the non-counting if any of 2626

votes materially affects the result of the election in so far as it concerns the

returned candidate i.e. the respondent no.1. I am unable to comprehend as

to how the respondent No.1 can be said to remain unaffected if in fact 2626

votes have remained to be counted.

14. The counsel for the respondent no.1 next contends that no case of

non counting of any votes is made out. It is argued that the number of votes

polled published in the newspaper on 1st December, 2008 are provisional /

tentative as mentioned therein also as the final tally is taken only

subsequently at the time of counting. It is argued that merely because there

is variation in the number of votes is not a reason enough for ordering

recount. The counsel has sought to explain the manner of preparation of

Form 17C to contend that there can be possibility of an error therein and

contends that there can be no error in the counting done from the machines

before declaration of result of elections. He further contends that it is in

fact the petitioner who has fudged and fabricated the forms 17C before this

Court (in this respect an application under Section 340 Cr.P.C. has also

been filed). The respondent no.1 has also filed before this Court certified

copies of forms 17C obtained from the Returning Officer to show the

difference with the forms 17C filed by the petitioner. The counsel for the

respondent No.1 also relies on principle of presumption of truthfulness of

the election process. The senior counsel for the petitioner however

contends that the respondent No.2 has shied from filing his own copies of

forms 17C which are given contemporaneously at the close of election to

each of the candidates or their polling agents. He urges that the copies of

forms 17C given to the respondent no.1 would be the same as to the

petitioner and controverts the certified copies of forms 17C obtained from

the office of the Returning Officer; various lacunas are pointed out therein,

of the same being incomplete and not bearing the signatures of all the three

candidates / their poling agents. The senior counsel for the petitioner

contends that the total of the votes polled as per the certified copies of

forms 17C filed by the respondent no.1 also does not match with form 20

i.e. the result of the election showing the total number of votes polled.

15. The counsel for the respondent no.1 also relies upon Kattinokkula

Murali Krishna Vs. Veeramalla Koteswara Rao AIR 2010 SC 24

reiterating the salutary principle of election law that since an order for

inspection and recount of the ballot papers affects the secrecy of ballot,

such an order cannot be made as a matter of course; that before an order of

recount and scrutiny of ballot papers can be made, the election petition

must be found to contain material facts of allegations of irregularity or

illegality by not counting and on the basis of evidence adduced in support

of allegations, the Court must be prima facie satisfied that in order to

decide the dispute and to do complete and factual justice between the

parties making such an order is imperatively necessary. The Supreme

Court also relied on Suresh Prasad Yadav Vs. Jai Prakash Mishra AIR

1975 SC 376 laying down that an order for recount cannot be made as a

matter of course for two reasons firstly because it affects the secrecy of

ballot which under the law is not to be lightly disturbed and secondly

because the rules provide an elaborate procedure for counting and the said

procedure contained many statutory checks and safeguards against mistake

and fraud in counting and can be called almost trickery foolproof. It is also

argued that in this case though recount was ordered and showed a different

result still the Supreme Court by holding that no case for recount was made

out set aside the order directing recount.

16. The counsel for the respondent no.1 has also handed over copies of

the following judgments:-

(i) Samant N. Balakrishna Vs. George Fernandez AIR 1969 SC 1201

on the proposition of the burden of proof being on the petitioner.

(ii) Peoples Union for Civil Liberties Vs. Union of India AIR 2003 SC

2363.

(iii) Sh. Satyanarain Dudhani Vs. Uday Kumar Singh AIR 1993 SC

367 where finding the application for recount to be cryptic, containing no

details and no instance of irregularity or illegality and finding no

contemporaneous evidence to that effect, it was held that recounting cannot

be ordered. The reason which again prevailed was the need to maintain the

secrecy of ballot.

(iv) D.P. Sharma Vs. The Commissioner AIR 1984 SC 654 where the

clerical or arithmetical mistakes were held to not constitute a ground for

recounting.

(v) Mahendra Pal Vs. Sh. Ram Dass Malanger AIR 2002 SC 1291

again laying down that discrepancy in number of votes found and number

of ballot papers issued could be attributed to accidental slip or clerical or

arithmetical mistake and was held not to constitute a ground for recount.

17. It was enquired from the counsel for the respondent whether the

argument of the need to maintain the secrecy of ballot survives on ballot

papers having been substituted by EVMs. Though the counsel during the

hearing was not able to reply to the same but after the conclusion of

hearing along with "Supplementary arguments" filed copy of the judgment

dated 4th November, 2009 of this Court in Writ Petition (Civil)

No.4715/2008 titled Election Commission of India Vs. Central

Information Commission. A Single Judge of this Court in the said

judgment though relating to the scope of RTI provisions vis-à-vis the

Representation of Peoples' Act has held that the argument of secrecy of

ballot will equally apply to the data and information stored in the control

unit of the EVMs in electronic form and principle of secrecy and

confidentiality in both cases are identical.

18. I have perused Chapter-II of the Rules relating to voting by EVMs as

well as Rule 66A laying down Rules 55C, 56C & 57C in lieu of Rules 55,

56 & 57 in relation to counting of votes, where voting machines have

been used. I am unable to find as to how the secrecy of ballot would

be affected if recount is ordered in the present case. The said principle

emanated where owing to the nature of the ground urged for setting aside

of the election such secrecy of ballot would necessarily be affected in the

endeavour to prove the same. However, the present is a case where there is

admittedly a difference between the total numbers of votes polled as noted

in Form 17C at the close of the poll as ultimately found on count.

Considering the margin of votes by which the respondent no.1 has been

declared successful and the discrepancy in the number of votes, the same

can materially affect the result of the election so far as it concerns the

returned candidate i.e. the respondent no.1. The recount of votes only

requires the proper button marked "result" in the control units of each of

the EVMs involved in the election, and which has been directed to be

persevered, to be pressed and which would give the total votes polled and

polled by each candidate at each polling station and a re-total of the result

of each of the EVMs. No enquiry as to which voter had voted for which

candidate would be required in such a case.

19. The introduction of EVMs in the election process is a giant step

made possible with advancement in technology. While earlier, a recount

entailed physical verification of ballot polled, necessarily affecting secrecy

of ballot, besides lengthy time consuming process and possibility of human

error again, with the introduction of EVMs, recounting only entails

pressing the "Result" button of each EVM and totaling the results of each

EVM. The secrecy of the ballot is not affected in any manner. If inspite of

such possibilities and convenience, we allow ourselves to be still guided by

considerations which are now outdated and archaic, we will be doing a

disservice to advancement in technology incorporated in the statute and

failing to benefit from the same. I am also of the view that if such

discrepancies in total number of votes polled, noted in Form 17C and in

Form 20 (at the time of final count) are allowed to remain, it will vitiate the

very purpose of Form 17C. The purpose of Form 17C is to cap the total

number of votes polled at the close of the poll and to eliminate the

possibility of addition or reduction in the interregnum till the counting.

The scheme of election does not permit of any discrepancy between the

two stages. Form 17C is prepared and signed in the presence of all

candidates/their agents and binds not only them but also the electoral

process. The only mistake admissible can be in totaling of Form 17C of

constituencies. However, there can be no variation in votes polled in any

constituency as per its Form 17C and Form 20. The Karnataka High Court

in S. Prasanna Kumar Vs. Dr. Y. Nagappa MANU/KA/2173/2007 has

directed recount in such contingency.

20. As far as the argument of the counsel for the respondent no.1 with

respect to presumption of truthfulness is concerned, I am of the opinion

that with the introduction of EVMs, the dispute as in the present case ought

not to have occurred. With the use of the EVMs, the total number of votes

polled at each polling station declared at the close of the election ought not

to and cannot be provisional or tentative. There is after all no manual

counting of the votes involving possibility of a clerical or calculation error.

The total number of votes pulled is available on each machine, immediately

at the close of the poll. Form 17C itself has in column 5 thereof "Total

number of votes recorded as per voting machine". There can be no

discrepancy/error about the same and such number will remain the same at

the time of counting also. The very fact that such error / discrepancy exists

and it has the potential of affecting the result of the election, considering

the margin of votes by which the respondent no.1 has emerged successful

calls for a recount. It is also not as if recount would entail a long drawn

process. If inspite of EVMs, the Courts remain reluctant to give full effect

to the same, the Courts would be turning a blind eye to technology. The

Supreme Court in The State of Maharashtra Vs. Dr. Praful B. Desai AIR

2003 SC 2053 on the principle of interpretation of an ongoing statute (in

that case Cr.P.C.) relied on the commentary titled "Statutory

Interpretation", 2nd Edition of Francis Bennion laying down:

"It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly,

the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters. .....That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."

21. Similarly in Suresh Jindal Vs. BSES Rajdhani Power Limited AIR

2008 SC 281, it was held that creative interpretation of the provisions of

the statute demands that with the advance in science and technology, the

Court should read the provisions of a statute in such a manner so as to give

effect thereto.

22. I, therefore, find that with the introduction of EVMs, this Court

cannot remain shackled by the resistance to recount for the reasons which

prevailed with the physical ballot papers.

23. As far as the petitioner making out a prima face case for recount is

concerned, as already noticed herein above, there is admittedly a difference

in the total number of votes recorded at two stages and which difference

ought not to have been there with the introduction of EVMs. The total

number of votes polled as recorded in the EVM at the close of the poll

should be the same as the votes counted. I find the discrepancy in the total

number of votes polled sufficient for directing a recount. A prima facie

case is made out and the element of irreparable injury and balance of

convenience are obvious. Often the election petitions remain pending till

the completion of the term of the elected candidate making the election

petition a mockery. If in a given case as the present one, it is found that the

dispute can be resolved with the press of a button, then the Court should

not hesitate in doing so. The recent judgment of the Single Judge of this

Court (supra) relating to the RTI Act does not concern recounting through

EVMs and has not found the same to be affecting the principle of secrecy

of ballot. The observations therein were made in the context of the RTI

queries. Sir Tom Stoppard, the British playwright, in his 1972 play

Jumpers says "It is not the voting that's democracy; it's the counting"!

24. In a democracy, the electoral process is supreme and sacrosanct and

a statute should be interpreted so as to encourage the transparency in the

electoral process and to make the candidate aware that they cannot take

advantage of a mistake here and there and the results of the election can be

re-checked with the press of a button. It is only when the candidates are

aware of any such consequence that the possibilities of such errors would

also diminish.

25. The application is therefore allowed. The respondents 3 & 4 and the

Election Commission of India are directed to recount the votes polled in the

election held on 29th November, 2008 for the post of Member of

Legislative Assembly of Delhi for Assembly Constituency No.66 and to

file a report in this Court. The said report to also indicate the reasons for

differences, if any, in the result as well as the differences in the total

number of votes polled in terms of Form 17C and in the result in form 20

as earlier discussed. The report be filed within six weeks of today. Copy

of this order be communicated forthwith to the Election Commission of

India.

List on 7th May, 2010.

RAJIV SAHAI ENDLAW (JUDGE) March 16th 2010 gsr