Orissa High Court
***** vs Election Commission Of India And .... ... on 1 July, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). NO.15019 OF 2024
(In the matter of an application under
Articles 226 and 227 of the Constitution of India)
*****
Sarmistha Sethi @ Sarmistha Sethy .... Petitioner
-versus-
Election Commission of India and .... Opp. Parties
others
Advocate for the Parties :
For Petitioner : Mr. Milan Kanungo, Senior Advocate
along with Mr. A. Acharya, Advocate
For Opposite Parties : Mr. Sukumar Patjoshi, Senior Advocate
along with Mr. Gopal Agrawal, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 01.07.2024
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JUDGMENT
K.R. Mohapatra, J.-
1. This matter is taken up through hybrid mode.
2. The Petitioner files this writ petition with a prayer to direct
the Opposite Parties to provide copies of Form 17 A, Form 17 C
(Part I and II) and Form 20 (Part I and II) of the General Election,
2024 in respect of 8-Jajpur Parliamentary Constituency forthwith.
3. Mr. Kanungo, learned Senior Advocate submits that the
Petitioner was a contestant in the General Election-2024 of 8-
Parliamentary Constituency. She was unsuccessful in the election.
In order to file an election dispute under Section 80 of The
Representation of People Act, 1951 (for brevity 'the RP Act'), the
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
Petitioner through her election agent, made an application to the
Returning Officer as well as the Collector-cum-District Election
Officer, 8-Jajpur Parliamentary Constituency under Annexure-1
and 2 respectively to provide copies of Form 17 C (Part I and II)
and Form (20 Part I and II) in respect of the said Parliamentary
Constituency. The Additional District Election Officer-cum-
Additional District Magistrate in his Letter No.4857 dated 10th
June, 2024 (Annexure-3), intimated the election agent of the
Petitioner that Form 20 of AC/AS can be supplied on deposit of
Xerox cost @ Rs.2/- per page. But, he refused to supply Form 17
C Part I and II stating that the same cannot be supplied as the
same has been stored and sealed in strong room as part of the
statutory documents. The strong room can only be opened by the
order of the Competent Court. It was, however, intimated that
Polling Station wise counting details of votes polled has been
entered in ENCORE portal, which is authenticated by the
concerned Returning Officer/Assistant Returning Officer. Being
aggrieved with the same, this writ petition has been filed.
4. Mr. Kanungo, learned Senior Advocate further submits that
the Petitioner does not press for supply of copy of Form 17 A as
the same cannot be supplied to the Petitioner without leave of the
Competent Court as provided under Order 93 (1) of the Conduct
Of Election Rules, 1961 (for brevity 'the Rule 1961'). But, the
rest of the documents are public documents and it should be
supplied to the Petitioner on payment of such fee, as the Election
Commission may direct. The Petitioner has the statutory right to
get the copies of Form 17 C and 20 under Rule 93 (2) of the
Rules. Non-supply of those documents has handicapped the
Petitioner in filing the election dispute within the statutory period.
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
Unless the Petitioner verifies the aforesaid documents, she will not
be in a position to give the details of the corrupt practice, which is
proposed to be alleged in the election petition. Non-supply of
these documents is in violation of the statutory rules, which
infringes the legal right of the Petitioner to file the election dispute
in time.
5. He further submits that only the final result sheet has been
supplied, but not the Form 20 (Part I and II) as requested.
Although the Letter under Annexure-3 was allegedly
communicated to the Petitioner on 10th June, 2024, but it was
received by the Petitioner on 19th June, 2024. He, therefore, prays
for a direction to the Additional DEO-cum-Additional District
Magistrate to supply the copy of the Form 17 C (Part I and II) as
well as Form 20 (Part-I and II) on payment of requisite fees.
6. Mr. Patjoshi, learned Senior Advocate appearing for the
Election Commission of India submits that the writ petition has
been filed with an allegation that non-supply of the Form 17 C
(Part I and II) and Form 20 (Part I and II) has incapacitated the
Petitioner from filing an election dispute. He draws attention to
Sections 80 and 83 of the RP Act and submits that the documents
are not necessary to be enclosed with an election petition. Thus,
there is no impediment for the Petitioner to file the election
petition without the said documents. A close reading of Para I of
the writ petition clearly shows that the Petitioner alleges that non-
supply of the aforesaid documents affects the transparency and
sanctity of the entire election process. The alleged sanctity and
transparency of the election process can only be challenged by
filing the election petition under Section 80 of the RP Act. He
also relies upon the decision in the case of N.P. Ponnuswami vrs.
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
Returning Officer, Namakkal Constituency and Others, reported
in AIR 1952 SC 64, and submits that in view of Article 329 (b) of
the Constitution of India, an election to either House of the
Parliament or Legislature of a State can only be challenged by
filing an election petition and not otherwise. In the process of
filing the writ petition, the Petitioner wants to make a roving
enquiry into the entire election process which is not permissible in
law. He further draws attention to Form 17 C and submits that the
contents of the said Form has already been disclosed to the
Petitioner. The Form provides space for signature of the polling
agent of the candidates. Thus, it is expected that polling agent of
the Petitioner must have signed the Form 17 C after verifying the
contents thereof. There is no material on record to show that the
polling agent of the Petitioner was deprived of signing the Form C
or he was prevented from verifying the details of the entries in
Form 17 C before it was kept in the strong room. If the prayer of
the Petitioner is accepted at this stage, then the seal of strong room
has to be broken and thereby the sanctity of the election process
and secrecy of the ballots is likely to be affected. It is his
submission that the Additional DEO-cum- District Magistrate has
never refused to supply the Form 17 C. It has only stated that it
cannot be supplied for the time being as it is stored and sealed in
the strong room. The same can only be provided by the order of
competent Court. The Petitioner, if so advised, may make an
application in the election dispute, if any, to be filed for
production of document. He, therefore, submits that the writ
petition does not merit consideration and is liable to be dismissed.
He also relied upon the case of Hari Ram vrs. Hira Singh and
others reported in (1984) 2 SCC 36, wherein it is held that before
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
inspection is allowed, the allegation made against the elected
candidate must be clear and specific and must be supported by
adequate supply of material facts. In the instant case, there is no
clear allegation in respect of any corrupt practice as alleged by
Mr. Kanungo, learned Senior Advocate appearing for the
Petitioner. As it appears, the Petitioner is not sure about the
allegation to be made challenging the election process. Thus, by
filing of this writ petition, the Petitioner makes an attempt for a
roving enquiry into the election process by order of this Court,
which should not be encouraged. He also relied upon the case of
Fulena Singh vrs. Vijay Kumar Sinha and others, reported in
(2009) 5 SCC 290, and submits that the prayer made in this writ
petition may only be entertained in an election dispute and not by
filing a writ petition under Article 226 of the Constitution of India.
He, therefore, prays for dismissal of this writ petition.
7. Heard learned Senior Advocates appearing for the parties.
8. Perused the case record.
9. The writ petition has been filed for a direction to the
Opposite Parties to supply of Form 17 A, 17 C (Part I and II) and
Form 20 (Part I and II). Mr. Kanungo, learned Senior Advocate
fairly submitted that Form 17 A cannot be supplied without the
order of the Competent Court of law in view of Rule 93 (1) of the
Rules. As it appears from Annexure-3, the prayer for supply of
Form 20 has been allowed by the Additional DEO-cum
Additional District Magistrate, Jajpur on deposit of Xerox cost @
of Rs.2/- per page. The only document which was refused to be
supplied for the time being is the copy of Form 17 C.
10. On perusal of Form 17 C, it is clear that it contains the
information with regard to the number of electors assigned to the
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
polling station, total number of voters entered in the register for
voters (Form 17 A), number of voters deciding not to record votes
under Rule 49-O etc. There is a space for signature of the polling
agents. Thus, it implies that the document after being prepared by
the Presiding Officer of the polling station was verified by the
polling agent of the receptive candidates.
11. Rule 49 (S) of the Rules reads as under:
"49 (S). Account of votes recorded.--(1) The presiding officer
shall at the close of the poll prepare an account of votes
recorded in Form 17C and enclose it in a separate cover with
the words Account of Votes Recorded' superscribed thereon.
(2) The presiding officer shall furnish to every polling agent
present at the close of the poll a true copy of the entries made
in Form 17C after obtaining a receipt from the said polling
agent therefor and shall attest it as a true copy."
11.1. There is no allegation in the writ petition that the polling
agent of the Petitioner was not provided with a true copy of the
entries made under Form 17 C as provided under Sub-Rule (2) of
Rule 49 (S) of the Rules. On a perusal of pleadings of the writ
petition, this Court is not clear as to how the Petitioner is
handicapped in filing the election petition under Section 80 of the
RP Act without the copy of Form 17 C, more particularly when
there is no allegation in the writ petition that the Presiding Officer
of the concerned Polling Booth had not complied with Rule 49 S
(2) of the Rules It is only submitted by Mr. Kanungo, learned
Senior Advocate that by not supplying of the copy of the Form 17
C, there is a violation of Rule 93 (2) of the Rules.
12. The matter to be considered in this writ petition is whether
the Petitioner is incapacitated/handicapped in filing an election
petition without the copy of Form 17 C. In view of the clear
provision under Rule 49 (S) (2) of the Rules together with the fact
that there is no requirement to enclose a copy of Form 17 C, along
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 02-Jul-2024 14:44:35
with the petition, this Court is of the considered opinion that the
non-supply of From 17 C does not affect the right/liberty of the
Petitioner under the RP Act to file an election petition within the
statutory period.
13. Further, it is stated under Annexure-3 that Form 17 C has
been kept in the strong room as a part of statutory document. In
order to supply the copy of From 17 C, the strong room has to be
opened. Since the statutory period for filing of the election
petition has not yet expired, it would not be proper on the part of
this Court to issue such a direction at this stage more particularly
when the opening of the seal of the strong room before the
statutory period is over, which may affect the sanctity of the entire
selection process. The Petitioner has also not made out any case as
to how she is prejudiced for non-supply of the documents sought
for. The Petitioner is not prevented in any manner from filing the
election petition within the statutory period for non-supply of the
documents sought for.
14. In that view of the matter, I am not inclined to grant the
prayer made in this writ petition.
15. Accordingly, this writ petition, being devoid of any merit,
stands dismissed.
16. Dismissal of this writ petition shall not be a bar for the
Petitioner to work out the remedy available under law.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
High Court of Orissa, Cuttack Judge
The 1st Day of July, 2024/ Rojalin
