IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 CORAM THE HON'BLE MS. JUSTICE R.MALA A.No.6804 of 2009 in C.S.No.1137 of 2009 ORDER The applicants as plaintiffs filed C.S.No.1137 of 2009 for the following reliefs: (a) for a declaration that the Elections for the Governing Council of the first defendant-Association of Surgeons of India (first respondent in A.No.6804 of 2009) for the period 2010-2012 for which the counting took place on 17.11.2009 and 18.11.2009, as illegal, void ab-initio and otherwise unsustainable in the eye of law; (b) consequently to grant a mandatory injunction directing the first defendant/first respondent to conduct fresh Elections for electing its Governing Council members for the period 2010-2012, under the supervision of a Commissioner/Officer/Observer, appointed by this Court and (c) for permanent injunction restraining the defendants 7 to 49 from taking over/assuming office as members of the Governing Council of the first defendant/Association for the period 2010-2012 and consequently to restrain the defendants 7 to 49 from discharging their duties as members of the Governing Council of the first defendant, on account of the Elections being illegal and non-est in the eye of law. 2. Along with the suit, the applicants/plaintiffs have filed this application for the following reliefs: (a) to send for forensic examination all the Election Records pertaining to the Governing Council Elections for the period 2010-2012, including the actual ballot papers (both valid and those that have been declared invalid), declaration forms, envelopes, etc; (b) to check whether the envelopes have been opened and re-sealed prior to their opening during the counting held on 17.11.2009 and 18.11.2009; (c) to verify postal seal on each envelope and check whether it matches with the place of origin or the postal seal of the area from where the envelope was sent; (d) to verify the ink on the invalid ballot papers and report whether there is more than one ink used for the same State Chapter; (e) to verify if the inks on the invalid ballot papers for the States of Bihar, Tamil Nadu, Andhra Pradesh, Rajasthan and the Northern Chapter, match with the ink of the valid votes for the State of West Bengal and (f) to verify whether there is/are common ink(s) amongst the invalidated ballot papers. 3. The averments in the said application are as follows: (a) The first respondent/D1-Association is an Association of Surgeons, from all over the country, and it is a Registered Society under the Tamil Nadu Societies Registration Act. The entire Elections for the Governing Council of D1/Association for the period 2010-2012 took place in complete violation of the Memorandum of Association and Manual of Election Bye-Laws of the first respondent/D1- Association. As per Bye-Law 21 of the Election Bye-Laws, the ballot papers and other materials would be destroyed at the end of one month from the date of counting, unless there is an order of a competent Court to the contrary. (b) Since almost 21% of the available votes have been rejected as invalid, it is unlikely that the entire Election process seems to have been so confusing and complex that almost 21% of the most highly educated surgeons in India have not understood the process of electing their Association's Governing Council. It is therefore obvious that most of the votes have been "made" invalid and rejected. All the applicants/plaintiffs have lost by a margin, which is less than the number of invalidated votes for their respective States. The outcome for the applicants/plaintiffs would have been different, had the votes not been "made" invalid. (c) The applicants/plaintiffs have a strong prima facie case, as the results for the Elections have been declared only on the basis of about 4500 votes, when in fact, more than 6000 members' votes had been cast and if the valid votes, which have been "made" invalid at the instance of respondents/defendants 2 to 6, are taken into consideration, then the applicants/plaintiffs have a fairly good chance of being the Governing Council Members of the first respondent/ D1-Association. The entire Election is vitiated by numerous illegalities. (d) There has been a mass rigging of votes and manipulation of the ballots in favour of the respondents/D7 to D49, at the instance of the respondents/D2 to D6 and the storage of records as contemplated by Bye-law 20 of the Election Bye-Laws, has not been adhered to by respondents 2 to 6. The respondents 2 to 6 have their power as the Election Officer, Observer and Tellers to manipulate the votes. During the time of counting, there was a large number of invalid votes being declared, something which has never happened in the past 70 years history of the first respondent/D1-Association and it requires immediate investigation. (e) The respondents 2 to 6 paid no heed to the concerns and proceeded with the declaration of the results. One of the candidates from Tamil Nadu, Dr.N.T.Srinivasan even gave written complaint dated 18.11.2009 and 20.11.2009 to the second respondent/D2 (President/Election Officer), stating that there had been violation of the procedures as contemplated in the Election Bye-Laws of the first respondent/D1 Association. Dr.N.T.Srinivasan was leading the tally with a large margin, when the counting suddenly stopped and the reason for such stoppage as cited by the second respondent/D2 was an unexplained "computer error" and re-counting was again started from the first, at the instance of the second respondent/D2 and when the same was objected to by Dr.N.T.Srinivasan, the second respondent/D2 paid no heed to the same and he also did not record the objections as contemplated in the Election Bye-Laws. This callous attitude of the second respondent/D2 raised many an eye-brow. (f) One of the Tellers, Dr.S.K.Shukla, left the premises of the first respondent/D1 amidst the commotion to catch his flight back to Indore. While he was about to board his flight, he was summoned back by the second respondent/D2 as a re-count with the same computer system and software, was being ordered. Dr.S.K.Shukla returned to the chaos after being forced to miss his flight. Inspite of severe opposition, written as well as verbal, the second respondent/D2 announced that the computer problem was "fixed" and went ahead and declared the results after the re-count was completed around 4 am on 18.11.2009. (g) In addition to the written complaint given by Dr.N.T.Srinivasan, the third applicant/plaintiff also sent an E-mail, dated 18.11.2009 to the second respondent/D2 requesting for clarification regarding the tally of votes. However, the second respondent/D2 replied vaguely to the same after about 12 days of receipt of the E-mail, by merely extracting one of the Election Rules and did not give any clear-cut reply to the third applicant/plaintiff's request. The third applicant/plaintiff expressed his surprise to the manner in which the Elections had been held and vide his E-mail, dated 2.12.2009 requested the second respondent/D2 to send all the details of the Election process including the number of ballot papers issued, number of duplicates issued, total number of votes received, number of invalid votes, votes polled by different candidates and candidates declared successful. However, the said request is yet to be acted upon by the second respondent/D2. (h) All the valid votes have been "made invalid by tampering with the envelopes have been opened by respondents/D2 to D6 or any person acting through them and have been tampered with/doctored so that the same is considered invalid. It is further apprehended by the applicants that the postal seals on the same have been forged by respondents/D2 to D6 and there has also been large rejection of votes on the ground of invalidity, as declared by the second respondent/D2 and deliberate indifference on the part of the respondents/D2 to D6 to follow the Rules governing the Election as contemplated in the Election Bye-Laws and hence, it is just and necessary to order that all the Election Records including the actual ballot papers (both valid and those than have been declared invalid), declaration forms, envelopes, are sent for forensic examination with the other reliefs prayed for in this application, as indicated above. (i) Hence, it is contended by the applicants/plaintiffs that prima-facie case is in favour of the applicants/plaintiffs and the balance of convenience is also in their favour and prayed for allowing this application for the reliefs as indicated above. 4. The gist and essence of the counter affidavit filed by the second respondent/D.2, are as follows: (a) Only the City Civil Court in the City of Madras, is having jurisdiction to entertain the case in respect of matters involving Societies registered under the provisions of the Tamil Nadu Societies Registration Act. The suit is bad for misjoinder of causes of action. Without the leave under Clause 14 of the Letters Patent, the suit is not maintainable. (b) The allegations that "certain persons have masterminded a coup by ensuring large scale manipulations and rigging of ballots" is very irresponsible and reckless statement and very vague. The other allegation that there was no response to the complaints given by "certain contestants/members during and after the counting was completed" establishes complicity in the matter, is again a sweeping statement made and as there is nothing specific, the second respondent wholly denies such statements as false. None of the applicants herein have made any compliant and the so-called complaints, which fact is not admitted, have not challenged the Elections. The litigation is speculative in nature. (c) The entire Election process is conducted in a very transparent manner. Incidentally, the counting process by computer has been done only in the last three years in view of large number of votes. During the process of counting, either the candidates or their representatives were present apart from the Election Officers, the President, Secretary and Treasurer. (d) In the present case, the following is the course of events that took place: (i) Printing of ballots and covers was done by M/s.TRS Forms and Services Pvt. Ltd., which is an ISO 9001 certified institution and has been doing this job for ASI since 2003. (ii) Ballots were posted under Certificate of Posting with instructions to voters, as per format produced by the applicants. (iii) Ballots were received at the Association Headquarters till 5 pm on 16.11.2009. All the ballots were numbered serially and entered in the Register before putting them into already sealed ballot box. (iv) As the Election Officer, the second respondent closed the Register at 5 pm on the said date. (v) Counting was started by the Election Officer at 9 am on 17.11.2009 in the presence of the President Dr.R.P.Srivastava, Secretary Dr.Arvind Kumar, Treasurer Dr.Dhore Patil, observer from Chennai Dr.Parimaljagan, the past President, and the Tellers--Dr.S.K.Shukla, Chief Editor of IJS from Madhya Pradesh, Dr.R.Shah, from Gujarat and Dr.Joginder Singh from Jharkhand. (vi) In the presence of contestants and their representatives who chose to be present, the ballot boxes were checked for seal and then opened. The ballot covers (envelop "C") were taken out on the table and counted. The total matched with the number entered in MCER Ballot Covers (Envelop 'C'), then opened to take out "Declaration Form" and "Envelop A & B". (vii) Declaration forms checked for name, address, membership number and signature by the member (voter). The ballots (Envelops A & B) received without declaration form or without signature, were rejected. The declaration forms were sealed separately and then counting of ballots started. (viii) Envelops A & B were separated and opened to take out the ballots. Bundles of 100 ballots made for counting by computer. Ballots then passed through optical reader (OMR) and the number of votes received in every round by each candidate displayed on screen. The ballots relating to the Presidential Election were counted first and result declared. (ix) During the counting of ballots for the Governing Council members, discrepancy was observed in the ballots relating to the States of Maharashtra and Tamil Nadu, which was not seen in other States. This was brought to the notice of the service provider above named, who noticed a technical snag due to programming, because of which counting was improper in the States where there were more than nine contestants. The counting was stopped to rectify the snag and started again after correction in the computer programming. (x) After completion of the counting, the result was declared in the presence of Tellers. (e) It is stated that all the complaints have been looked into and for instance, Dr.Pannalal Shal of Bihar Chapter who had lost, on protest, checked the correctness by cross-checking the votes and found the same to be correct and accepted his defeat. Similarly, one Dr.Vasant Pawar, a presidential candidate, also gave a letter and re-counting which was done and found that he had indeed lost the Election. (f) It is pertinent to note that it is the same service provider who has been providing such services in the past three years ever since the counting has been computerised. However, all the overseers as well as all concerned, were wholly satisfied after cross-checking the scanner after it was set right. It is a fact that all people, in view of the delay, had to miss their flight. So, the allegation that Dr.Shukla left for the airport and had to be re-called, was denied. The counting was ultimately completed around 4 a.m. and the results declared. (g) So far as Dr.N.T.Srinivasan is concerned, a protest was lodged by him only at 11.30 p.m. only after he saw that he was losing. The Election Rules 1 and 2 as set out in the instructions for voting, is a complete answer to the protest and the said Dr.N.T.Srinivasan is stopped from challenging the results. (h) The details sought by the third plaintiff in respect of the details of the Election process, etc., are meant only for the General Council which met on 26.12.2009 where the details were presented and there was no objection from any corner. (i) As far as the ballots are concerned, the ballots of the Governing Council members and the Presidential candidates have indeed been put into separate covers and sealed. However, both covers have been put into one single box for convenience. (j) The results were initially placed before the Governing Council and before the General Body also, which took place on December 26th and 30th respectively. Insofar as the protest of Dr.Kamalakanta Panigrahy is concerned, it is wholly baseless, as there were four representatives from the State of Bihar overseeing the Election process and no person raised any objection whatsoever. As far as the State of Orissa is concerned, there was no contest at all, as Dr.B.N.Mohanty and Dr.Pramod Kumar Malick were declared elected unopposed. (k) One of the applicants from Northern Chapter withdrew his protest. It is further submitted that as days have gone by, as against the past where only letters were sent to the Electors by the contestants, in recent times, there has been extensive use of electronic media in the form of SMS and E-mails for the purpose of canvassing which brings pressure on the voters, who in all probability, make markings through the period the ballot papers are lying with them. The ballot papers lie with the Electors for over a month in terms of the Rules, which gives enough room for the Electors to keep adding to the votes and probably giving room for mistakes also. There is also a possibility of the ballots being sent from a place different from their place of residence as many of the members are known to be constantly travelling. Unless there has been a gross abuse of election procedure, the applicants would not be entitled to any relief. The assumptions of different inks being used in a ballot, etc., can be no ground to hold the ballots invalid. The applicants are not entitled to any relief, much less sending the papers to the Forensic Sciences Department to examine the documents. 5. The pith and substance of the additional counter affidavit filed by the second respondent/D2, are as follows: (a) All the ballots were received either by post or by courier and these are noted in a register maintained by the Association. Before opening the ballot boxes, the same were inspected by the people present, viz., candidates or their representatives and who have confirmed the same to be in order. Similarly, such persons who were present have also confirmed that the counting process was satisfactory. (b) The invalid votes are only in three chapters, viz., Andhra Pradesh, Bihar and Tamil Nadu and that the invalid votes may have some relevance and that too if all of them were to be for the benefit of the losing candidate, which position could only be very very remote. In Tamil Nadu, the first losing candidate has not challenged the election and the second plaintiff, who is from Tamil Nadu, could not benefit from the relief even if all the invalid votes were assumed in his favour. Even that is only on the assumption that almost all the votes are presumed in favour of the first and third plaintiffs, which, as already mentioned would be a very remote possibility. (c) After apparently invalid votes are segregated, the other ballots are taken in lots of 100 and passed through the Optical Mark Reader (OMR), which after scanning all the ballots indicates all valid votes and the invalid votes. The valid votes are then indicated against the respective names. However, the OMR does not physically separate the invalid votes, but only keeps a count of them. (d) After the counting, the ballots have been kept in bundles of 100 and kept in the sealed box. Therefore, it would not be possible to locate all the invalid votes, unless all the ballots are examined. Such an exercise would not be in the interest of the Association and the candidates themselves as a secrecy of the ballot, would be wholly lost, resulting in several complications and would prejudice the interest of the wining candidates. (e) If the invalid votes are identified, it would be impossible to find out which is the offending mark and there would be marks more than the ones prescribed and it would naturally have affected all the candidates marked therein. Such examination even if done, would not help in reaching any conclusion with regard to the person in whose favour the votes wound enure. So, the exercise would therefore be wholly futile. (f) While it would be important to check on the functioning of the system in future, it would be futile to go through the process of comparing the inks in the alleged invalid votes, as it would in no way further the cause of any person, much less the applicants. However, in view of the cross-checks that had been provided even earlier, the relief sought for by the applicants cannot be granted, because, no conclusion could be arrived at by such process and the same is also not contemplated in law/rules. (g) So far as the Bihar chapter is concerned, there was even a re-counting done at the behest of one of the candidates and found to be correct. The Rules made it absolutely clear that objection could not be entertained retrospectively, as all the candidates were given the liberty to be present either in person or through a representative. Not having chosen to do so earlier, it is now not open to the applicants to challenge any part of the election. The elections have been totally fair and the applicants could not really have any genuine complaint. (h) Out of 2-3 Governing Council meetings normally held, one has already been held on 26th to 28th March and the question of the elected members stopping to function does not arise, as the activities of the Association have to go on. (i) The applicants having sought a declaration that the election itself was illegal, no relief could be granted at the interim stage, as all the reliefs would be consequential upon the validity or otherwise of the election. It having been demonstrated that under no circumstances could the entire election be challenged, the question of any other relief does not arise. Hence, the second respondent prayed for dismissal of the application. 6. Learned Senior Counsel appearing for the applicants/plaintiffs would submit that the plaintiffs are contesting for the Governing Council Elections, that the Elections had been held for 2010-2012 and during the process of Elections, there had been some mal-practice. While comparing the previous Elections held for 2007-2009, the invalid votes polled in the present Elections, are very high. Learned Senior Counsel appearing for the applicants/plaintiffs culled out relevant portion of the typed set of papers filed by the applicants/plaintiffs. The invalid votes during the present Elections are more than 1/3 of the votes cast to the persons who succeeded in the Elections. He further submitted that since the voters are the Surgeons/Doctors, they are all well educated people and so, there is a suspicion for declaring the votes as invalid. So, there is suspicion that the valid votes are made as invalid, to help the other persons being selected. So, he prayed for sending the invalid votes to the Forensic Department to find out and to verify the inks used in the ballot papers and with regard to the postal seals in the covers/envelopes, whether the covers/envelopes have been opened before it was opened on 17.11.2009 and 18.11.2009, i.e. on the dates of counting. Learned Senior Counsel further submitted that Bye-laws 19(g) and 21 of the Election Bye-laws have been violated during the process of Elections. He prayed for allowing the application. 7. Repudiating the said contentions, learned Senior Counsel appearing for respondents 1 and 2/D1 and D2, would submit that it is true that there are invalid votes for the Elections held for 2010-2012, which are considerably high compared to the previous Elections, but it is not the sole ground for sending the ballot papers for examination by Forensic Department. Further, he submitted that Section 45 of the Indian Evidence Act deals with the expert's opinion and it is only a weak piece of evidence. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that no one has sworn to any affidavit stating that with the knowledge, the ballot papers have been tampered and no one has filed any single document to show that the envelopes containing the ballot papers were tampered with and it was made as invalid ballot papers and the same could be decided only by letting in oral evidence during the course of trial, and if necessary, the ink used can be verified even during the course of trial by the Court itself, and hence, no purpose will be served if the application as prayed for is allowed. 8. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that at the time of counting for the past three Elections, same procedure had been adopted and the Optical Mark Reader (OMR) had been used. 9. Hence, learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 submitted that both valid and invalid votes were segregated and the other ballots are taken in lots and hundreds of papers pass through the OMR, which after scanning all the ballot papers, indicates all the valid votes and the invalid votes and the votes are then indicated against the respective names. However, the OMR does not physically separate the invalid votes, but only keeps a count of them. Learned Senior Counsel for the respondents 1 and 2/D1 and D2 further submitted that after counting, the ballot papers have been kept in hundreds of bundles, which are further kept in a sealed box, which has been deposited before Court. He further submitted that the bundles contain both valid and invalid votes and they are mingled and if they have to be sent to Forensic Department, they have to be first segregated as invalid and valid votes and the secrecy of the ballot papers will be lost. 10. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2