IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Election Petition No. 01 of 2007 Shri Tierath Singh Rawat. ..……… Petitioner. Versus Shri Yashpal Benam and others. ……… Respondents Present: Mr. Ashok Agarwal, Advocate for the petitioner. Mr. Ashok Bisht, Mr. Navnish Negi, Mr. Yogesh Pacholia, Advocates for respondents. Hon’ble Tarun Agarwala, J. 1. Election for the 33rd Pauri Legislative Assembly Constituency was held on 21.02.2007. The counting was held on 27.02.2007 and the result was declared on the same day. The respondent no. 1 Yashpal Benam, an independent candidate, was declared elected defeating the petitioner, who was a BJP candidate by a margin of 11 votes. The total votes polled were 35,025 votes. The total number of votes counted were 34,869 and 156 votes were not counted as it was found to be defective. The opposite party received 10,936 votes whereas the petitioner received 10,925 votes. 2. The petitioner, being aggrieved by the declaration of the result, filed an election petition under section 80 / 81 of the Representation of the People Act 1950, praying that the election of the respondent no. 1 should be declared void and further prayed that the petitioner should be declared elected from the said constituency. The petitioner contended in his petition that there have been bundles of 2 irregularities and that the postal ballot papers were wrongly rejected without assigning any reason on account of which the election has been materially affected. In paragraph 12 of the petition, the petitioner contended that approximately 800 postal ballot papers were received, out of which 622 postal ballot papers were counted and 156 postal ballot papers were rejected without any cogent reason. In paragraph 12 (A) it was stated that the votes of Electronic Voting Machine (EVM) were counted first and thereafter, the postal ballot papers, which was in violation of the Rule 54-A of the Conduct of Election Rules 1961 (hereinafter referred to as the “Rules”). In paragraph 17 of the petition, it was alleged that the petitioner made a request for recounting but no heed was given by the Returning Officer. In paragraph 21, it was alleged that the Returning Officer deliberately avoided the recounting of the votes. In paragraph 20, it was alleged that a bundle of irregularities was committed by the Returning Officer by rejecting the postal ballot papers. In paragraph 22, it was alleged that 156 valid votes were rejected without any valid reason. In paragraph 25, it was alleged that there had been an improper reception, refusal and rejection of the votes. In paragraph 16, the petitioner alleged that the postal ballot papers were rejected on the ground that there was no seal of the Attesting Officer and that there were no signature of Commandant (presumably the Station Officer) and that the ballot papers were rejected also on the ground that signature was not made at the proper place. On these allegations, the election petition was filed. 3 3. The returned candidate, i.e. the respondent no. 1 filed his written statement denying the allegations made in the petition and contended that the postal ballot papers were counted first and only thereafter, the votes in the EVM were counted. In paragraph 12- A of the written statement, the respondent asserted that not only the postal ballot papers were counted first but after counting of the EVM votes, the postal ballot papers were re-counted thrice. In paragraph 16 of the written statement, the respondent asserted that the postal ballot papers were rightly rejected under sub clause (4) and sub clause (8) of the Rule 54-A of the Rules. In paragraph 35, it was alleged that 622 postal ballot papers were received till 8.00 a.m. i.e. before the start of the counting of the votes out of which 138 postal ballot papers were validly rejected. 4. On the basis of the pleadings led by the parties, 5 issues were framed, namely:- 01. Whether the votes received through postal ballots for 33 Pauri Legislative Assembly Constituency were counted in accordance with Rule 54-A of the Conduct of Election Rules 1961? 02. Whether the counting of postal ballot papers was conducted in the presence of the election petitioner or his counting agents, as alleged by the respondent no. 1 in para 33 of the written statement? 03. How many postal ballot papers had been received upto 8 O’ clock in the morning of the date of counting? 4 04. Whether 138 postal ballot papers had been rejected on the ground mentioned in Rule 54-A (4) of the Conduct of Election Rules 1961 and 18 postal ballot papers were rejected as per provisions of sub-rule (8) of Rule 54-A? 05. To what relief, if any, is the petitioner entitled? 5. The evidence was led by the parties. On behalf of the petitioner, PW1 Tierath Singh Rawat, i.e., the petitioner; PW2, Vinod Sachdeva, Election Agent of petitioner; PW3, Ansuya Prasad Juyal, Counting Agent of the petitioner; PW4, Dheeraj Singh Negi, Superintendent, Department of Post, Pauri Garhwal; PW5, Bhagwat Kishore Mishra, (Returning Officer) the then SDM, Barahsyon, Pauri were examined. On behalf of the respondent, the returned candidate Yashpal Benam himself deposed as DW1; Vinod Kumar, counting supervisor was examined as DW2; Mukesh Negi, counting agent of Yashpal Benam was examined as DW3; Jagdish Singh Bisht, counting agent of Yashpal Benam was examined DW4; Ravindra Rawat counting agent of Yashpal Benam was examined as DW5; Jaspal Chauhan, counting agent of Yashpal Benam was examined as DW6; Ashok Bisht, Chief Election Agent of Yashpal Benam was examined as DW7; Laxmi Prasad Kothiyal, Counting Assistant was examined as DW8; Ansuya Prasad Counting Assistant was examined as DW9; Gopal Gupta, Dak Counting Assistant was examined as DW10. 5 6. In the light of the pleadings and the evidence that has come forward, the petition basically revolves upon the rejection of the postal ballot papers by the Returning Officer on different grounds. The issues framed also relates to the rejection of the postal ballot papers. 7. With regard to issue no. 3, the petitioner has alleged in paragraph 12 of the petition that approximately 800 postal ballot papers were received out of which 622 votes were counted and 156 votes were rejected. 8. PW5 B.S. Mishra, the Returning Officer deposed and submitted that 622 postal ballot papers were received at the start of the counting at 08.00 a.m. on 27.02.2007. The said fact is corroborated by the Returning Officer from paper no. 38A / 43 which was prepared by the Returning Officer himself on the date when the counting took place. PW4 D. S. Negi, Superintendent of Post, Pauri Garhwal also corroborates the aforesaid fact. PW1, i.e., the petitioner also deposed that 622 votes were counted by the Returning Officer. 9. In the light of aforesaid evidence, it is hereby held that 622 postal ballot papers were received till 8 O’clock in the morning of the date of the counting of the votes, i.e. 27.02.2007. Issue no. 3 is accordingly decided. 10. With regard to issue no. 2, the petitioner has alleged in paragraph 12 of his petition that the postal ballot papers were not counted before the petitioner or before his agent. This fact has been vehemently 6 denied by the respondent no. 1 in his written statement and contended that the petitioner and his agent were present when the postal ballot papers were being counted. The petitioner in his deposition has admitted that he was present at the place of the counting of the votes and also made an oral protest for recounting. PW2, Vinod Sachdeva, the Election Agent of the petitioner in his deposition has stated that not only he but the petitioner was also present at the time of the counting of the postal ballot papers. 11. In the light of the aforesaid admission, it is held that the counting of the postal ballot papers was conducted in the presence of the petitioner as well as before his Election Agent. Issue no. 2 is accordingly decided. 12. Issues no. 1 and 4 are interconnected and the same are being decided together. The crux of the two issues is, that the procedure prescribed under Rule 54-A of the Rules was not followed while counting the postal ballot papers and that 138 postal ballot papers were wrongly rejected under Rule 54-A (4) of the Rules and 18 postal ballot papers were wrongly rejected under sub-clause (8) of Rule 54-A of the Rules. 13. Before considering the evidence led by the parties on this aspect, it would be appropriate to refer to the Rules framed by the Legislature in this regard. 14. Part III of the Rules 1961 relates to postal ballot. Rule 22 provides the Form of ballot paper and the 7 particulars that is mentioned therein. Rule 23 provides for the issuance of the ballot paper, which is required to be sent by post under a certificate of posting to the Elector, which contains a declaration form in Form 13A, a cover in Form 13B, a large cover addressed to the Returning Officer in Form 13C and instructions for the guidance of the Elector in Form 13D. Rule 24 provides how the Elector is required to cast his vote on a ballot paper in accordance with the directions contained in Form 13D. It also provides the procedure as to how the elector signs the declaration in Form 13A in the presence of an Attesting Officer, who is required to attest the signatures of the Elector. Rule 25 provides the procedure as to how the ballot paper is required to be signed by an illiterate or an infirm voter. Rule 27 provides the procedure on how to return the ballot paper to the Returning Officer. For facility, the provisions of Rules 22, 23, 24, 25 and 27 are extracted hereunder: “22. Form of ballot paper.- [(1) Every postal ballot paper shall have a counterfoil attached thereto, and the said ballot paper and the counterfoil shall be in such form, and the particulars therein shall be in such language or languages, as the Election Commission may direct.] (2) The names of the candidates shall be arranged [on the postal ballot paper] in the order in which they appear in the list of contesting candidates. (3) If two or more candidates bear the same name, they shall be distinguished by the addition of their occupation or residence or in some other manner. 8 23. Issue of ballot paper.-(1) A postal ballot paper shall be sent by post under certificate of posting to the elector together with- (a) a declaration in Form 13A; (b) a cover in Form 13B; (c) a large cover addressed to the returning officer in Form 13C; and (d) instructions for the guidance of the elector in Form 13D: Provided that the returning officer may, in the case of a special voter or a voter on election duty, deliver the ballot paper and Forms, or cause them to be delivered, to such voter personally. [(2) The returning officer shall at the same time- (a) record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll; (b) mark the name of the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however, recording therein the serial number of the ballot paper issued to that elector; and (c) ensure that that elector is not allowed to vote at a polling station.] (3) Before any ballot paper is issued to an elector at an election in a local authorities' constituency or by assembly members, the serial number of the ballot paper shall be effectively concealed in such manner as the Election Commission may direct. (4) Every officer under whose care or through whom a postal ballot paper is sent shall ensure its delivery to the addressee without delay. (5) After ballot papers have been issued to all the electors entitled to vote by post, the returning officer shall- 9 (a) at an election in a parliamentary or assembly constituency, seal up in a packet that part of the marked copy of the electoral roll which relates to service voters and record on the packet a brief description of its contents and the date on which it was sealed and send the other relevant parts of the marked copy to the several presiding officers [or marking the names of electors to whom ballot papers are issued at the polling stations without however recording therein the serial numbers of the ballot papers issued to the electors]; and (b) at any other election, seal up in a packet the marked copy of the electoral roll and record on the packet a brief description of its contents and the date on which it is sealed. [(6) The returning officer shall also seal up in a separate packet the counterfoils of the ballot papers issued to electors entitled to vote by post and record on the packet a brief description of its contents and the date on which it was sealed.] 24. Recording of Vote.-(1) An elector who has received a postal ballot paper and desires to vote shall record his vote on the ballot paper in accordance with the directions contained in Part I of Form 13D and then enclose it in the cover in Form 13B. (2) The elector shall sign the declaration in Form 13A in the presence of, and have the signature attested by, a stipendiary magistrate or such other officer specified below, as may be appropriate, to whom he is personally known or to whose satisfaction he has been identified- (a) in the case of a service voter, such officer as may be appointed in this behalf by the Commanding Officer of the unit, ship or establishment in which the voter or her husband, as the case may be, is employed or such officer as may be appointed in this behalf by the diplomatic or consular representative of India in the country in which such voter is resident; 10 (b) in the case of a special voter, an officer not below the rank of a Deputy Secretary to Government; (c) in the case of a voter on election duty, any gazetted officer [or the presiding officer of the polling station at which he is on election duty]; (d) in the case of an elector under preventive detention, the Superintendent of the Jail or the Commandant of the detention camp in which the elector is under detention; and (e) in any other case, such officer as may be notified in this behalf by the Election Commission. 25. Assistance to illiterate or infirm voters.- (1) If an elector is unable through illiteracy, blindness or other physical infirmity to record his vote on a postal ballot paper and sign the declaration, he shall take the ballot paper, together with declaration and the covers received by him to an officer competent to attest his signature under sub-rule (2) of Rule 24 and request the officer to record his vote and sign his declaration on his behalf. (2) Such officer shall thereupon mark the ballot paper in accordance with the wishes of the elector in his presence, sign the declaration on his behalf and complete the appropriate certificate contained in Form 13A. 27. Return of ballot paper.-(1) After an elector has recorded his vote and made his declaration under rule 24 or rule 25, he shall return the ballot paper and declaration to the returning officer in accordance with the instructions communicated to him in Part II of Form 13D so as to reach the returning officer before [the hour fixed for the commencement of counting of votes]. (2) If any cover containing a postal ballot paper is received by the returning officer after the expiry of the time fixed in sub-rule (1), he shall note thereon 11 the date and time of its receipt and shall keep all such covers together in a separate packet. (3) The returning officer shall keep in safe custody until the commencement of the counting of votes all covers containing postal ballot papers received by him.” 15. Part V of the Rules relates to the counting of the ballot papers. The present controversy revolves on the provisions and interpretation of Rule 54-A. For facility, Rule 54-A is extracted hereunder: “54-A. Counting of votes received by post.- (1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided. (2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted. (3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinize the declaration in Form 13A contained therein. (4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained. (5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content. (6) The returning officer shall then place all the declarations in Form 13A which he has found to 12 be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in sub-rule (5). (7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinize each ballot paper and decide the validity of the vote record thereon. (8) A postal ballot paper shall be rejected- [(a) if it bears any mark (other than mark to record the vote) or writing by which the elector can be identified; or] (aa) if no vote is recorded thereon; or (b) if noted are given on it in favour of more candidates than one; or (c) if it is a spurious ballot paper; or (d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (e) if it is not returned in the cover sent along with it to the elector by the returning officer. (9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given. (10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is 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. (11) The returning officer shall count all the valid votes given by postal ballot in favour of each 13 candidates, record the total thereof in the result sheet in Form 20 and announce the same. (12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.] 16. Sub clause (4) of Rule 54-A provides that upon scrutiny of the postal ballot papers, if it is found that the declaration is not in the cover or has not been duly signed or it has not been attested or that the declaration form is substantially defective, or if the serial number of the ballot paper, as entered in the declaration form, is different from the serial number endorsed in the cover in Form 13B, in such a situation, the cover containing the ballot paper will not be opened and the Returning Officer will make an appropriate endorsement on it and would reject the ballot paper contained in that cover. 17. Sub clause (8) of Rule 54-A contemplates that the postal ballot paper would be rejected, if it bears any mark to which the elector could be identified or if no vote is recorded on the ballot paper or if the vote is given to more than one candidate or if it is a spurious ballot paper or if the ballot paper is damaged or mutilated and the genuineness of the ballot paper could not be identified or if the ballot paper is not returned in the cover which was sent by the Returning Officer. 14 18. In the light of the aforesaid Rules, the petitioner contended in paragraph 12A of the petition that the postal ballot papers were not counted first and that the votes recorded in the EVM were counted first. The said allegation was endorsed by the petitioner in his deposition as well as by his Election Agent PW2. On the other hand, the defendant no. 1 i.e. the Returned Candidate, his Election Agent DW2 and other witnesses DW3 to DW 10, all made clear statements in their deposition, contending that the postal ballot papers were counted first when the counting had started at 08.00 a.m. on 27.02.2007 and that the votes in the EVM were counted afterwards from 09.00 a.m. onwards. In the light of the divergent evidence which has come forward, a duty is cast upon the court to analyze as to which evidence is correct. However, the task of the court has been made easy by the evidence of the Returning Officer PW5, the witness produced by the petitioner himself. The Returning Officer has categorically asserted in his examination-in-chief that the counting started with the postal ballot papers at 08.00 a.m. and thereafter, the counting of the votes recorded in the EVM started from 09.00 a.m. 19. In the light of the statement made by the Returning Officer, which the court does not find any reason to disbelieve, the court holds that the counting started at 08.00 a.m. first with the postal ballot papers and thereafter, the counting of the votes recorded in the EVM started thereafter. In the light of this finding, the court finds that the procedure contemplated under sub clause (1) of Rule 54-A was duly followed in letter and in spirit. 15 20. It is alleged that 18 postal ballot papers were rejected under sub clause (8) of Rule 54-A. The evidence led by the petitioner in this regard, is sketchy and vague. The petitioner nor his witnesses gave any reason for the rejection of these 18 votes. Further, no arguments were led by the counsel for the petitioner on this aspect during the course of the hearing of the petition. Consequently, in the absence of any arguments being raised on this aspect and vague assertion being made in the deposition of the petitioner and his witnesses, the court holds that the contention of the petitioner that 18 postal ballot papers were wrongly rejected under sub clause (8) of Rule 54-A is patently erroneous. 21. This leads us to the rejection of 138 postal ballot papers. The petitioner in paragraph 12 of the petition has contended that out of 622 postal ballot papers, 156 postal ballot papers were rejected without any cogent reason. In paragraph 16, the petitioner