Niranjan Lal Gupta & Anr vs Gurmeet Singh Baweja & Ors
2013 Latest Caselaw 4268 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 19th September, 2013

+                               CS(OS) 2969/2011

       NIRANJAN LAL GUPTA & ANR                   ..... Plaintiffs
                    Through: Mr. Aman Lekhi, Sr. Adv. with Mr.
                             Dinesh Kumar Gupta and Mr. Sonu
                             Gupta, Advocates.

                                Versus

    GURMEET SINGH BAWEJA & ORS                  ..... Defendants
                  Through: Mr. Ajay Burman, Mr. Karan Burman
                           and Mr. Aditya Shankar, Advocates
                           for D-1.
                           Mr. Kirtiman Singh, Mr. T. Singhdev
                           and Mr. Waize Ali Noor, Advocates
                           for D-3.
                           Mr. Madan Bhatia, Sr. Adv. with Mr.
                           P.S. Bindra and Ms. Sweta
                           Priyadarshini, Advocates for D-4 & 5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The two plaintiffs have instituted this suit (i) for declaration of the

election on 24th November, 2011 of defendant no.4 Mr. Bal Malkit Singh

and defendant no.5 Mr. Kultaran Singh Atwal to the post of President and

Vice President (North Zone) respectively of the defendant no.3 All India

Motor Transport Congress for the term 2011-2013 as illegal, null & void; (ii)

for mandatory injunction directing the defendant no.1 Election Officer to re-

count the votes taking into account eight votes which were illegally declared

as rejected and to thereafter declare the two plaintiffs as successful on the

said posts of President and Vice President (North Zone) of defendant no.3

for the term 2011-2013; and, (iii) for permanent injunction restraining the

defendants no.4&5 from representing themselves as President and Vice

President (North Zone) of the defendant no.3.

2. Summons of the suit and notices of the application for interim relief

were issued and vide ex parte order dated 28th November, 2011 the

defendant no.1 Election Officer was directed to produce the record of

elections to the said posts on the next date of hearing. The said record in the

form of a sealed ballot box was produced and the satisfaction of the parties

that the seal thereon had not been tempered was recorded in the order dated

2nd December, 2011; sixteen ballot papers, eight for the post of President and

eight for the post of Vice President which were the subject matter of

controversy were also taken out and kept on the Court file on the same day

and the ballot box along with the remaining ballot papers returned to the

defendant no.1 Election Officer. Vide reasoned order dated 5th December,

2011 the application of the plaintiffs for interim relief restraining the

defendants no.4&5 from taking charge on the post of President and Vice

President (North Zone) and for staying the operation of the result declared

on 24th November, 2011 of the election was dismissed. FAO(OS)

No.603/2011 & FAO(OS) No.604/2011 preferred by the two plaintiffs

respectively against the said order were vide order dated 19 th December,

2011 dismissed as not pressed, expediting the trial.

3. It is the case of the plaintiffs:-

(a). that out of the total voters numbering 118, 60 voters cast their

votes in the presence of the plaintiffs by ticking on the ballot

paper as the ballot was not a secret ballot and many more voters

had assured the plaintiffs that they would similarly mark their

ballot in favour of the plaintiffs;

(b). that at the time of counting it was observed that many ballot

papers had been tampered by erasing/removing the tick marks

placed against the names of the plaintiffs and placing a new

mark against the names of the defendants no.4&5;

(c). it was also observed that the aforesaid tampering was done after

the time of dispatch of the ballot paper by the voter and before

the counting had begun;

(d). that the plaintiffs immediately filed their written objection/

protest regarding the said tampering/erasing, much before the

counting was completed and the results declared and requested

the defendant no.1 Election Officer to hold up the result of the

election pending the investigation in the matter;

(e). that the defendant no.1 Election Officer however continued

with the process of counting and declared the defendants

no.4&5 as elected; and,

(f). that the aforesaid tampering/erasing was done to reduce the

number of votes cast by the voters in favour of the plaintiffs

and increase the number of votes in favour of the defendants

no.4&5.

4. The defendant no.1 Election Officer in his written statement has:-

(i). denied that the plaintiffs had secured 60 out of 118 votes in

their favour;

(ii). pleaded that the plaintiff no.1 had got only 52 votes while the

defendant no.4 had got 58 votes and eight votes were rejected

due to double ticking;

(iii) pleaded that similarly the plaintiff no.2 Shri Harish Sabharwal

had polled 51 votes as against 59 votes polled by the defendant

no.5 and eight votes were rejected because of double ticking;

(iv). pleaded that due procedure for counting of the votes was

adopted in the presence of the parties who signed the

proceedings;

(v). denied that there was any tampering/erasing; and,

(vi). pleaded that upon objection being taken by the plaintiffs, the

ballot papers were thoroughly scrutinized but eight ballot

papers were found having double ticking.

5. The written statement of the defendant no.2 Shri Pramod Kumar

Sharma, Advocate, Co-ordinator to the defendant no.1 Election Officer as

well as the written statement of the defendant no.3 are on the same lines.

6. The defendants no.4&5 in their separate written statements have

additionally pleaded:-

(A). that as per the schedule of election announced on 30 th

September, 2011, the last date for dispatch of ballot papers to

members was 5th November, 2011 and the last date for return of

the completed ballot papers from members was 23rd November,

2011 till 5.00 P.M.;

(B). that two separate ballot papers for electing President and Vice

President for the term 2011-2013 were sent to all the members

of the Managing Committee of the defendant no.3;

(C). that the said ballot papers instructed the voters not to write on

or put any other mark on the ballot paper which may disclose

the identity of the voter and also informed the voters that in

such case the ballot paper would be liable for cancellation; it

also instructed the voters that voting in excess will invalidate

the vote and ballot paper will be rejected;

(D). that the receipt of ballot papers in the office of the defendant

no.3 and putting thereof in the ballot box was recorded on

camera;

(E). that on 24th November, 2011 the ballot boxes were opened in

the presence of the candidates and the ballot papers were found

in order and the candidates were satisfied that prior to opening

the ballot boxes there was no tampering with the same and no

objection also at that stage was raised by anyone;

(F). that objection was raised by the plaintiffs only after counting;

(G). that the defendant no.1 Election Officer found double ticking

on eight ballot papers and since the same was in violation of

instructions, the said votes were rejected; significantly the said

votes were in favour of the defendants no.4&5;

(H). that the averment/plea of the plaintiffs that 60 voters had cast

their votes in favour of the plaintiffs is a ground for rejecting all

the 60 votes and is violative of the additional instructions issued

by the defendant no.3 in the letter dated 3rd November, 2011

prohibiting disclosure of identity by the voter; and,

(I). that the averments in the plaint showed that the plaintiffs had

forced/coerced voters to vote in their favour and that after the

plaintiffs left, the voters changed their votes and casted in

favour of whomsoever they wanted to.

7. The plaintiffs have filed replications inter alia pleading:-

(I). that the defendant no.1 Election Officer had acted in

connivance with the defendants no.4&5 and had in the first

instance taken into consideration the questioned 16 (i.e. 8+8)

ballots into account of the defendants no.4&5 - if the same

were tampered, the same could not have been counted in favour

of the defendants no.4&5;

(II). that the from the examination of the 16 ballots it is clear that the

tick mark against the names of the plaintiffs had been erased

and tick mark against the names of the defendants no.4&5 had

been put;

(III). that upon objection being raised by the plaintiffs the defendant

no.1 Election Officer ought to have held a detailed enquiry

thereon - instead he rushed to declare the result of the election;

and,

(IV). that the secrecy of the ballot had not been violated as none of

the voters had disclosed their identity on the ballot paper; the

principle of secrecy is not absolute principle and it is the

prerogative of the voter to disclose or not to disclose his vote to

the contesting candidates; that the provision in the

Memorandum of Association of the defendant no.3 relating to

secrecy of ballot is for election of the members of the Managing

Committee and not relating to election of office bearers.

8. On the pleading aforesaid of the parties, the following issues were

framed on 17th February, 2012:-

"1. Whether the plaint has been signed, filed and verified in accordance with the law? OPP.

2. Whether the suit filed by the plaintiffs is without any cause of action as alleged by the defendant no.1? OPD 1.

3. Whether the 8 ballot papers for the post of President and 8 ballot papers for the post of Vice President (North Zone) were tampered with as alleged by the plaintiffs, if so its effect? OPP

4. If the issue no.3 is decided in favour of the plaintiff in that case whether the election of defendants no.4 and 5 as President and Vice President respectively is liable to be declared as illegal, null and void? OPP

5. Whether the plaintiffs are entitled for decree of declaration to declare the plaintiffs as elected office bearers of defendant no.3? OPP.

6. Relief."

9. Evidence was recorded on commission with the two plaintiffs

examining themselves and the defendant no.1 and the defendant no.4

examining themselves as witnesses.

10. The senior counsel for the plaintiffs and the counsel for the defendant

no.1 Election Officer, defendant no.2 in person, counsel for the defendant

no.3 and the senior counsel for the defendants no.4&5 have been heard.

11. The senior counsel for the plaintiffs has argued,

(i) that the tick marks against the names of the defendants no.4&5

in all the 16 ballots which were rejected are in the same ink;

(i) that the defendant no.1 Election Officer ought to have sought

expert opinion before rejecting the ballots and was not

competent to decide the said objection himself;

(iii) that the defendant no.1 Election Officer in his cross

examination had admitted that of the double tick on the 16

ballots, one was light and the other prominent;

(iv) that as per the Election Notice dated 30 th September, 2011 the

nomination papers were acceptable either by speed post,

registered post, approved courier or even by hand, to be

delivered in the office of the defendant no.3 under

acknowledgment and there was thus nothing wrong in the

voters after ticking the ballots against the names of the

plaintiffs handing over the same to the plaintiffs for delivery in

the office of the defendant no.3;

(v) that the tick mark put by the voters on the 16 ballot papers

against the names of the plaintiffs no.1&2 respectively had

been erased in a way not visible in a routine way but visible on

meticulous/close examination by holding the ballot paper near

source of direct light and the tick marks were made against the

names of the defendants no.4&5;

(vi) Reliance is placed on Morgan Vs. Simpson 1975 Q.B. 151

laying down the situations in which the election can be said to

be vitiated and therefrom it is contended that if the election is

conducted so badly that it was not substantially in accordance

with the law as to elections, irrespective of whether the result

was affected or not, the election is vitiated; however if the

election is conducted substantially in accordance with law as to

elections it is not vitiated by a breach of the rules or a mistake,

provided that it did not affect the result of the election;

(vii) it is contended that the defendant no.1 Election Officer was

entitled to countermand the election and the said duty is

implicit in the duty to hold election;

(viii) that the minutes of the holding of the election earlier drawn up

by the defendant no.1 Election Officer were torn and which

affects the integrity of the election - attention in this regard is

invited to Ex.PW1/4;

(ix) that the election held was not fair owing to the defendant no.1

Election Officer refusing to conduct inquiry into

erasing/tampering of the ballots;

(x) that an SMS of the defendants no.4&5 being victorious in the

election was circulated one hour before the declaration of the

result - though the plaintiffs in their examination-in-chief had

deposed so but there was no cross examination with respect

thereto;

(xi) that the defendant no.1 Election Officer rushed to handover

charge of the post of President and Vice President to the

defendants no.4&5 so as to avoid any stay from the Court;

(xii) that the defendant no.1 Election Officer is the beneficiary of the

election of the defendants no.4&5 as he continues to be the

Chairman of the Finance Committee of the defendant no.3 and

continues to operate the bank accounts and on which aspect also

no cross examination was done of the plaintiffs; and,

(xiii) the defendant no.1 Election Officer was also felicitated by a

special award at a convention held at Ashoka Hotel after the

election, on 16th October, 2011.

12. The senior counsel for the defendants no.4&5 argued:-

(i). that the plaintiffs concealed from the plaint that they had raised

no objection during the counting;

(ii). that in the counting the defendants were found to have polled

66 votes each and the plaintiffs 52 votes each - upon objection

being raised by the plaintiffs re-count was done in which 16

ballot papers aforesaid i.e. 8 in favour of each of the two

plaintiffs were found to contain double ticking and were

rejected reducing the votes of the defendants and not of the

plaintiffs;

(iii). that from the averment/plea of the plaintiffs that 60 of the

voters had voted in their presence in their favour, the secrecy of

voting is vitiated and purity of election process violated;

(iv). that it appears that the plaintiffs prevailed upon the voters to

tick in their favour in their presence and which the voters

subsequently erased and voted for the defendants no.4&5;

(v). that voting by ballot is necessarily secret; attention is invited to

Section 59 of the Representation of Peoples Act, 1951 and to

Corpus Juris Secundum Vol. 8 defining ballot; attention is also

invited to Black‟s Law Dictionary defining ballot as process of

voting usually in secret;

(vi). that if either secrecy of ballot or purity of election is violated

the vote becomes void;

(vii). reliance is placed on A.C. Jose Vs. Sivan Pillai AIR 1984 SC

921 citing various dictionaries defining the ballot as an act of

voting, usually secret;

(viii). reliance is also placed on American Jurisprudence Vol. 26

opining that the manner of voting which preserves the secrecy

thereof is a voting by ballot and that ballot implies a

requirement of secrecy;

(ix). reliance is also placed on Halsbury‟s Laws of England 4th

Edition Vol. 15 paragraph 558 opining that any ballot paper on

which anything is written or marked by which a voter can be

identified, is void and must not be counted;

(x). reliance is placed on Raghbir Singh Gill Vs. Gurcharan Singh

Tohra 1980 (3) SCR 1302, at page 1313 and 1317 laying down

that secrecy of ballot is a key stone in the arch of Constitutional

democracy;

(xi). with reference to Purno Agitok Sangma Vs. Pranab

Mukherjee JT 2012 (12) SC 296 it is contended that the Court

has repeatedly cautioned that the election of a candidate who

has won an election should not be lightly interfered with unless

circumstances so warrant; and,

(xii). that it was impossible to tamper with the ballot without

tampering with the envelops in which the ballots were to be

received and of which there was no plea - in fact the camera

footage shows the plaintiffs examining the envelops.

13. The counsel for the defendant no.1 Election Officer has argued:-

(A). that the defendant no.1 Election Officer is concerned since the

allegations of tampering of ballots are against him;

(B). that the defendant no.1 Election Officer on the very first date

produced the entire records;

(C). that once the 16 ballots were found to have two marks i.e. tick

marks against the names of the plaintiffs as well as the

defendants no.4&5, the defendant no.1 Election Officer had no

option but to reject the said ballots;

(D). that the sealed boxes containing the ballots were opened in the

presence of the plaintiffs and till counting no objection was

raised by the plaintiffs and objection was raised only after

counting had been completed;

(E). that the conduct of the defendant no.1 Election Officer is above

board and the allegations against him unfortunate;

(F). that production of the entire record immediately on receipt of

notice from this Court shows the election to have been

conducted in a transparent manner;

(G). that the plaintiffs have not led evidence of 60 people who are

claimed to have voted in favour of the plaintiffs; and,

(H). that the plaintiffs in the plaint have changed their stand to the

ballot papers having been tempered with.

14. The senior counsel for the plaintiffs in rejoinder has contended:-

(a). that the issue is not of violation of secrecy but of double

ticking;

(b). that the defendants no.4&5 have not made any definite pleading

of any voter, after putting the mark against the names of the

plaintiffs, having subsequently changed his mind;

(c). that the defendant no.1 Election Officer has no defence to the

allegation of the minutes having been torn and page thereof

having been changed;

(d). that the secrecy of ballot is for the benefit of voters and none of

the voters have complained of violation of secrecy and the voter

can waive the privilege vested in him of secrecy; and,

(e). that double ticking is the key to the controversy.

15. The senior counsel for the defendants no.4&5 also reiterated that the

plaintiffs had failed to prove that 60 voters had voted for him and when was

quizzed in this regard in cross examination, stated that he could not disclose

their names.

16. I have considered the rival submissions aforesaid and have also

opened the sealed envelope on record containing the 16 ballots aforesaid

which were rejected. I find each one of them to be ticked in ink against the

names of the defendants no.4&5 respectively and also containing a faint tick

mark against the name of each of the two plaintiffs respectively. The faint

tick marks against the name of each of the plaintiffs are found to be in

pencil. I have used an eraser against such mark of one of the ballot papers

and find it possible to erase it further and which confirms of the said mark

being in pencil.

17. Ordinarily a voter would put the tick mark against the name of the

candidate for whom he intends to vote, in ink and which cannot be easily

erased and not with pencil, mark whereof is easily erasable. I find it hard to

believe that the voters who had sent the said 16 ballot papers, if intending to

vote in favour of the plaintiffs, would have put the mark against the names

of the plaintiffs with a pencil. The senior counsel for the plaintiffs has at

great pains explained that there is nothing wrong in the plaintiffs collecting

the ballots from the voters who had voted in favour of the plaintiffs, for

onward submission in the office of the defendant no.3. The plaintiffs would

certainly have then taken care that the tick mark against their names was put

in ink which is ordinarily indelible and not in pencil which is easily erasable.

Though the instructions to the voters on the ballot do not include an

instruction to put the tick mark in ink only, but it is elementary.

18. A reading of the instructions contained in the letter dated 3 rd

November, 2011 of the defendant no.1 Election Officer to all the voters

enclosing the ballot papers, instructed the voters to „properly‟ mark the

ballots, fold and place the same in the envelope also enclosed, to seal the

envelope and to courier or post or deliver the envelop to the office of the

defendant no.3. It is not the plea of the plaintiffs that the envelopes

containing the ballot papers were opened behind the back of the plaintiffs or

that the ballots contained therein were in the control and possession of the

defendant no.1 Election Officer at any time behind the back of the plaintiffs.

The minutes of the election counting process record that the ballot boxes

were opened in the presence of the plaintiffs and "all envelopes were taken

out". It is res ipsa loquitur that the ballot papers must have been taken out

from the envelopes in the presence of the plaintiffs. It is not the plea of the

plaintiffs that the defendant no.1 Election Officer at any time had an

occasion to erase the tick marks on the 16 ballots against the names of the

plaintiffs and to put tick marks against the names of the defendants no.4&5.

It is also not the plea of the plaintiffs that the said 16 ballots were not

contained in the envelopes. Though I find the plaintiffs in their affidavits by

way of examination-in-chief to have stated that they were, at the time of

opening of ballot boxes seated at a distance of about 10-12 feet but it is not

their plea that the defendant No.1 Election Officer at any time was in control

of ballot papers behind the eyes of the plaintiffs and without any such plea

with particulars, no evidence suggesting so can be looked into. Moroever the

plaintiffs, save for deposing that they were seated at a distance, have shied

away from even in evidence deposing as to how and when the defendant

No.1 Election Officer had an occasion to so erase the tick mark against the

names of plaintiffs and substitute the same with tick mark against the names

of defendants No.4&5 respectively. An averment / plea of tampering with

ballot papers requires pleading and proof of the exact manner in which

tampering took place and even if, for the reason of the same being shrouded,

it is not possible to prove actual tampering, it is incumbent on a party

alleging tampering to establish the possibility thereof i.e. the facts showing

the custody of the ballot papers with the party who is alleged to have

tampered therewith, out of the gaze of others and for a period of time

sufficient to indulge in the acts complained of. There is neither pleading nor

any other material to the said effect. For this reason also I am of the opinion

that the plaintiffs have been unable to make out a case of tampering of the

ballots by the defendant no.1 Election Officer.

19. As far as the challenge by the plaintiffs to the action of the defendant

no.1 Election Officer in notwithstanding the objection raised by the

plaintiffs, not investigating the matter further and rushing to declare the

result of the election is concerned, I fail to see any merit therein also. The 16

ballot papers are found by me also on examination to be containing tick

mark in ink against the names of the defendants no.4&5 respectively and

tick mark in pencil against the names of the two plaintiffs respectively. It is

the case of the plaintiffs also that it was so. The plaintiffs have as aforesaid

failed to prove that the voters submitting the said ballot papers had voted in

favour of the plaintiffs (in as much as they did not put the tick mark in ink

against the names of the plaintiffs) or that the defendant no.1 Election

Officer had any opportunity to in addition to the tick mark in pencil against

the names of the plaintiffs put a tick mark in ink against the defendants

no.4&5 and to erase the tick mark in pencil against the names of the

plaintiffs (since the ballots were in sealed envelopes which were taken out

and opened in the presence of the plaintiffs). In my opinion in the absence of

any rules in this regard, the defendant no.1 Election Officer had only two

choices in this situation i.e. either to accept the tick mark in ink and in which

case the votes on the said ballot papers would have been counted in favour

of the defendants no.4&5 or to reject the said ballots. I fail to see as to what

purpose the further investigation or forensic examination of the said ballot

papers would have served. As aforesaid the tick mark in pencil against the

names of the plaintiffs and the tick mark in ink against the names of the

defendants no.4&5 is visible to the naked eye itself. The defendant no.1

Election Officer could not be expected to trace the voters who had submitted

the said ballot papers or to enquire from the said voters as to in whose favour

they had voted. The same was expressly prohibited as per the instructions on

the ballot papers. No flaw in the conduct or action of the defendant no.1

Election Officer is thus found and the allegations of the plaintiffs against

him found to be baseless.

20. The senior counsel for the plaintiffs save for contending that the

defendant No.1 Election Officer should have investigated the matter further

has not shown the purpose which such investigation would have served or

what such investigation should have been or the authority of the Election

Officer to conduct such investigation. The objection of the plaintiffs, of

double ticking on ballots, was such of which there was no cure with the

Election Officer. The consequence of any ballot being doubt ticked was

contained in the instructions aforesaid themselves i.e. of rendering the ballot

void. The Election Officer, if my view had no jurisdiction to commence a

trial into the objection of the plaintiffs and the proper fora for which is the

Court, as has been invoked by the plaintiffs.

21. In view of my aforesaid findings, need is not felt to deal with the other

issues of law argued but which are not found to be arising for adjudication or

necessary for adjudication of this lis.

22. Neither counsel has argued on the issues no.1&2 which are thus

decided in favour of the plaintiffs.

23. As far as the issue no.3 is concerned, as aforesaid, the plaintiffs have

failed to even plead or to so prove case of tampering with the ballot papers;

the said issue is accordingly decided in favour of the defendants and against

the plaintiffs. Resultantly, the issues no.4&5 are also decided against the

plaintiffs and in favour of the defendants.

24. The suit is found to be false and frivolous and it appears that the

plaintiffs were unable to accept their defeat at the election and have

attempted to put a spoke in the joy of the defendants no.4&5 of having won

the election. The suit is resultantly dismissed with costs in favour of the

defendants; the costs be paid to /recovered by, the defendant no.3. Further

exemplary costs of Rs. 10,000/- is also imposed on each of the two plaintiffs

also, payable to the defendant no.3 within four weeks hereof.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J SEPTEMBER 19, 2013 pp..