Niranjan Lal Gupta & Anr. vs Gurmeet Singh Baweja & Ors.
2011 Latest Caselaw 5927 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 02.12.2011
                     Judgment Pronounced on: 05.12.2011

+ CS(OS) 2969/2011

NIRANJAN LAL GUPTA & ANR.                  ..... Plaintiffs
                 Through: Mr. K.T.S.Tulsi, Mr. Raman
                 Kapur, Sr. Advocates with Mr. Manish
                 Kumar, Advocate for Plaintiff No.1
                 Mr. Aman Lekhi, Sr. Advocate with Mr.
                 Amit Kumar, Advocate for Plaintiff
                 No.2
                       versus


GURMEET SINGH BAWEJA & ORS.          ..... Defendants
               Through: Mr. Rajiv Nayyar, Sr.
               Advocate with Mr. Z. Anwer, Advocate
               for D-3
               Mr. Maninder Singh, Sr. Advocate with
               Mr. P.S.Bindra & Mr. Harish Sharma,
               Advocate for D-4 & 5

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN


V.K. JAIN, J

IA No. 18992/2011 (u/O 39 R.1&2 CPC)

            Defendant No.3 of All India Motor Transport

Congress is stated to be a body consisting of more than

5000 members, representing more than 01 lac transport

companies and approximately 72 lac truckers, Light Motor

Vehicles, buses, commercial vehicles etc.   The Articles of


CS(OS)No.2969/2011                                Page 1 of 15
 Association of defendant No.3, which has been registered as

a company, provides for formation of a Managing Committee

consisting of not less than 15 and not more than 121

members to be elected zone-wise by its members.                    The

members of the Managing Committee elect the President

and Vice-Presidents of the body from amongst themselves,

for the tenure of two years each. For the period 2011-13,

plaintiff No.1 Mr. Niranjan Lal Gupta, defendant No.4 Mr.

Bal Malkit Singh and one Mr. Nimesh J. Patel, all of whom

are    members         of   the   Managing     Committee   filed    the

nominations for the post of President whereas plaintiff No.2

Mr. Harish Sabharwal and defendant No.5 Mr. Kultaran

Singh Atwal filed nominations for the post of Vice-President

from North Zone. Since Mr. Nimesh J. Patel withdrew his

nomination,          only   plaintiff   No.1   and   defendant     No.4

remained in the fray for the post of President. The election

is held by postal ballots, the members of the Managing

Committee being from all over India.             Accordingly, ballot

papers were sent to 109 elected members of the Managing

Committee and 09 former Presidents, who were to cast vote

for the aforesaid post. It is alleged in the plaint that out of

total voters numbering 118, 60 cast their votes in presence

CS(OS)No.2969/2011                                         Page 2 of 15
 of the plaintiffs by ticking on the ballot paper, since it was

not a secret ballot.     On 24th November, 2011 during the

process of counting, it was observed that some ballot papers

had been tampered with by erasing/removing the tick mark

placed against the names of the plaintiffs and putting a new

tick mark against the names of defendants No. 4 & 5. It is

alleged that the aforesaid tampering was done after dispatch

of ballots by the voters and before the counting had begun.

The plaintiffs lodged protest in this regard before the

counting       was   complete.   Defendant   No.1,   however,

continued with the process of counting and declared

defendants No. 4 & 5 elected to the post of President and

Vice-President (North Zone) respectively.    The case of the

plaintiffs is that, had the rejected ballot papers been

counted as the votes cast in their favour, they would have

been elected President and Vice-President (North Zone)

respectively of defendant No.3. The plaintiffs have sought a

declaration declaring the election for the posts of President

and Vice-President (North Zone) for the term 2011-13 to be

illegal, null and void. They have also sought a direction to

defendant No.1 to recount the votes taking into account the

08 rejected votes and declared them as the successful

CS(OS)No.2969/2011                                   Page 3 of 15
 candidates for the aforesaid posts. They have also sought

an injunction restraining defendants No. 4 & 5 for

representing themselves as President and Vice President

(North Zone) of defendant No.3.       The Plaintiffs have also

filed IA No. 18992/2011 seeking an interim injunction

restraining the defendants No. 4 & 5 from taking charge on

the post of President and Vice-President (North Zone)

respectively and staying the operation of the result declared

on 24th November, 2011.

2.          The suit has been contested and the application

opposed by defendants No. 3 to 5, though Written

Statement is yet to be filed by them.

3.          The dispute between the parties is with respect to

08 postal ballots for the post of President and 08 postal

ballots for the post of Vice President (North Zone).         The

ballot box containing all the ballot papers was opened in the

Court on 2nd December, 2011 in presence of the parties after

they had seen the paper seals on it and satisfied themselves

that there was no tampering with the box or the lock put on

it.   Ballot papers in question were taken out and were

examined in the Court. It appears to me that on 07 out of

08 ballot papers for the post of President, initially, the tick

CS(OS)No.2969/2011                                   Page 4 of 15
 mark was put against the name of plaintiff No.1 but later on

that tick mark was erased and another tick mark against

the name of defendant No.4 was put. It also appears that

on all the disputed ballot papers for the post of Vice

President (North Zone) the voter had initially put tick mark

against the name of plaintiff No.2 but later on that tick

mark was erased and another tick mark was put against the

name of defendant No.5. There can be two possibilities with

respect to erasing of the tick marks initially put on these

ballot papers and putting of other tick mark on them. The

first possibility and which I feel is more likely is that

someone who had access to the envelopes in which these

ballot papers were sent by the voters, erased the marks

which were initially put on them and put another mark

against the name of defendant No.4 on the ballot papers for

the post of President and against the name of defendant

No.5 for the post of Vice-President (North Zone).      To my

mind, it is unlikely to be a mere coincidence that at least 08

voters who are casting votes from different places would

conduct themselves in an identical manner by erasing the

tick mark initially put by them and putting another mark

against the name of the other candidate.       Prima facie it

CS(OS)No.2969/2011                                  Page 5 of 15
 appears to me that these ballot papers have been tempered

with after they were dispatched by the voters.               This

obviously would have been done in connivance with the

winning candidates, they being the only beneficiary of the

tempering.           The next question, which comes up for

consideration is as to whether, at this stage, the Court

should direct counting of the ballot papers in favour of the

plaintiff or should direct re-election, on account of this

tempering.

4.          The specific case of the plaintiff is that 60 voters

had cast their votes in their presence, meaning thereby that

the tick mark against their names was put by those voters

in their presence. The election for the post of President and

Vice-President (North Zone) is not held up by show of

hands.      As per instructions issued by the Election Officer,

voter was required to put the ballot paper in an envelope,

flap of the envelope was to be gum pasted, preferably sealed,

that envelope to be put it into another envelope which was

to be sent to the Election Officer. The plaintiffs themselves

have placed on record the letter dated 3rd November, 2011

sent by the Election Officer to all the voters, inclusive two

ballot papers one for the post of President and other for the

CS(OS)No.2969/2011                                    Page 6 of 15
 post of Vice President (North Zone). One of the instructions

given to the voters requires them not to write or put any

other mark on the ballot paper which may disclose his

identity in which case the ballot is liable for cancellation. It

would thus be seen that the polling process was to be a

secret process in which the voter was precluded from

disclosing his identity and if he did so the ballot cast by him

was liable to be rejected/cancelled. If 60 voters out of 118

cast their vote in presence of the plaintiffs, as is specifically

claimed by them, they by doing so disclosed their identity to

the plaintiffs, which in turn, rendered their ballot liable to

rejection/cancellation. The case of the plaintiffs in para 28

of the plaint is that the ballot was not a secret ballot and

that is why 60 voters had cast their votes in their presence.

This being contrary to the instructions contained in letter

dated 3rd November, 2011 cannot be accepted. Had it not

been a secret ballot, the voters would not have been

instructed not to disclose their identity while casting their

votes. It was contended by the learned Sr. Counsel for the

parties that the ballot would be liable to be cancelled only if

the voter writes something or puts any mark other than tick

mark on the ballot paper and since there was neither any

CS(OS)No.2969/2011                                     Page 7 of 15
 writing nor any other mark on the ballot papers at the time

these 60 voters cast their ballot in favour of the plaintiffs,

these ballot papers could not have been rejected.                   I,

however, do not find any merit in this contention. It is quite

evident from additional instruction (a) that the prohibition is

against disclosure of identify of the voter, writing something

or putting any other mark on the ballot paper being only

two of the manner in which the identity of the voter could

possibly be disclosed to the candidates. If the voters were

precluded from disclosing their identity, it is immaterial

whether they disclose it by writing something on the ballot

paper or putting some mark on it or by casting vote in

presence of a candidate or some other manner. Once, it is

found that the voter has disclosed his identity the vote cast

by him is liable to be rejected irrespective of the mode

whereby the identity has been disclosed.            Therefore,

assuming averments made in the plaint to be correct, the

Election Officer had no option but to reject these ballot

papers in case the vote was cast in presence of the plaintiffs

as is claimed by them. If these ballot papers are excluded

from consideration as the Election Officer has done, though

on a different ground, the plaintiffs cannot claim to be the

CS(OS)No.2969/2011                                   Page 8 of 15
 winning candidates and defendants No. 4 & 5 would be the

successful candidates for the post of President and Vice

President (North Zone) respectively.        Since the dispute

between the parties is only with respect to these ballot

papers, which, in my view, are invalid, vote having been cast

in the presence of the plaintiff, there is no ground to order

re-election at this interim stage itself.

5.          The learned Senior Counsel for the plaintiffs

during the course of arguments relied upon the decision of

Supreme Court in S.Raghbir Singh Gill v. S.Gurcharan

Singh Tohra & Ors. 1980 Supp. SSC 53 in support of his

contention that the voters are not prohibited from disclosing

their identity even during the process of casting their vote.

A perusal of this decision would show that in election for

members to Council of States, 08 MLAs who were detained

under MISA, preferred to vote through postal ballots. The

appellant and respondents No. 1 had received equal number

of first preference votes, which was below the ascertained

quota. The surplus first preference votes were added to the

first preference votes polled by the appellant and he was

declared elected. Respondents No. 2 & 3, who were sitting

MLAs belonging to the opposition party, filed an Election

Petition challenging the election of the appellant and it was

alleged that the Returning Officer had tampered with the

postal ballots. When the petition came up for hearing those

who had cast their votes by post appeared as witnesses and

were examined. The witnesses claimed that they had cast

only the first preference votes in favour of respondent No.1

and had not indicated any other preferences. The Court

held that the ballot papers were tampered with and were

improperly received in favour of the appellant and

improperly refused to respondent No.1. Recounting was

ordered, in which respondent No.1 was declared elected and

the election of the appellant was set aside. While dismissing

the appeal preferred, Supreme Court observed that secrecy

of ballot being is an indispensable adjunct of free and fair

election and ordinarily this secrecy has to be guarded.

Noticing that despite tampering with the ballot papers, the

Returning Officer did not reject them as being invalid, the

Court was of the view that if the circumstances permit and

evidence of unquestionable character is available it would

be perfectly legitimate for the Court, in an Election Petition,

to ascertain for whom the vote was cast before it was

tampered with and if it can be ascertained as a valid vote it

must be accepted as such. The Court was of the view that it

was the bounden duty of the Returning Officer, in view of

sub rule 2 of Rule 56 of Conduct of Election Rules 1961, to

ascertain the intention of the voter by finding out for whom

the vote was cast and add the vote for the candidate for

whom it was meant to be. It was noted that proviso to sub

rule 2 of Rule 56 showed that the ballot paper could not be

rejected merely on the ground that mark indicating vote was

indistinct or made more than once, if the intention that the

vote shall be for a particular candidate clearly appears from

the way the paper is marked. During the course of

arguments, it was claimed by the appellant that the order

passed by the High Court violated the mandate of Section

94 of Representation of The People Act which provides that

no witness or other person shall be required to state for

whom he had voted. The Court was of the view that Section

94 only prohibits compelling a witness to disclose, against

his will, as to how he had voted and for whom he had voted

and when questioned in this regard he can refuse to answer

the question without incurring any penalty or forfeiture but

if he chooses to open his lips of his own free will without

any direct or indirect compulsion and waive the privilege

nothing prevents him from disclosing how he voted. This

judgment to my mind in the context of the case before this

Court would mean that the voters who cast these disputed

ballot papers, are at liberty, post elections, if they so desire,

without any direct or indirect compulsion on them, to

disclose to whom they had given their vote through these

postal ballots. At this stage, there is no material on record

except the claim of the plaintiffs is that as many as 60

voters had cast their votes in their favour in their presence.

The plaintiffs have not filed the affidavits of those 60 voters

who according to them had cast the votes in their favour.

Moreover, even if these votes were cast in favour of the

plaintiffs as is claimed by them, in view of additional

instruction (a) to the voters, casting the votes in presence of

the plaintiffs by itself rendered these postal ballots liable to

rejection since by doing so they fail to maintain the secrecy

of the polling process and contravened the instructions

issued to them by the Election Officer, while signing the

postal ballots to them. Casting a vote in the presence of a

candidate, being altogether different from disclosing the

option, post election, the decision in the case of Raghbir

Singh (supra) does not apply. Prima facie, the plaintiffs

have not able to make out a case for counting these

disputed votes in their favour, for the purpose of deciding

the interim application.

6. During the course of arguments it was submitted

by the learned Senior Counsel for defendants No. 3 to 5 that

defendants No. 4 & 5 have already taken over from the

erstwhile incumbents and therefore there can be no

question of restraining them from assuming charge of the

office to which they were elected. This was strongly refuted

by the learned Senior Counsel for the plaintiffs and relying

upon the minutes of the meeting of Transport Development

Council held on 28th November, 2011 wherein the outgoing

President Mr.G.R.Shanmugappa has signed as the President

of AIMTC. Their contention was that had defendants No. 4

& 5 taken charge on 25th November, 2011 itself, the

outgoing President would not have attended the meeting

held on 28th November, 2011 and would not have described

himself as the President of AIMTC while signing the minutes

of the meeting. This was countered by the learned Senior

Counsel for defendants No. 3 & 4, who stated that the

outgoing President was duly authorized to represent

defendant No.3 in the aforesaid meeting since notice of the

meeting was received much before the results of the election

were declared and according to them, describing himself as

the President by Mr. G.R.Shanmugappa was only

inadvertent. They also stated that after defendants No. 4 &

5 had taken charge of their respective offices, press release

was duly issued in this regard, even before filing of the suit

and the concerned banks were also intimated on 30 th

November, 2011. I, however, need not go into these aspects

of the matter since I am of the view that the plaintiffs have

failed to make out a prima facie case for counting these

disputes ballot papers in their favour.

The learned Senior Counsel for the plaintiffs

referred to decision of Supreme Court in Murray & CO. v.

Ashok Kr. Newatia & Anr. (2000) 2 SCC 367 where the

Court was of the view that making a false statement on oath

constitutes criminal contempt. The contention was that by

filing a forged and fabricated handing over and taking over

report dated 25th November, 2011 the defendants No. 4 & 5

have rendered themselves liable to punishment for criminal

contempt. This aspect, to my mind, cannot be gone into at

this stage. Whether defendants No. 4 & 5 took charge on

25th November, 2011 - is a matter which requires recording

of evidence and no firm view in this regard can be taken at

this stage. I am of the view the whole of the process of the

election need not be set at naught on account of tampering

with these disputes ballot papers since the Election Officer

has not taken them into consideration and they were in any

case liable to be rejected.

7. For the reasons given in the preceding paragraphs

I find no ground for grant of any interim order to the

plaintiffs. The application is hereby dismissed.

CS(OS) No. 29692/2011

Written Statement be filed within the prescribed

period. Replication, if any, can be filed within 04 weeks

after getting the copy of the Written Statement.

The parties are directed to appear before the Joint

Registrar on 24th January, 2012 for admission/denial of

documents.

List before the Court on 22nd May, 2012 for

framing of issues.

(V.K. JAIN) JUDGE DECEMBER 05, 2012 vn