1 THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.80 OF 2010 IN WRIT PETITION NO. 1035 OF 2010 Sou. Madhubala Ramesh Bhore ... Appellant Versus Smt. Poonam Jagdish Pandey and others. ... Respondents Ms. Seema Sarnaik for the appellant. Mr. Shriram S. Kulkarni for respondent No.1. Mr. Shekhar Jagtap i/by M/s. J. Shekhar & Co. for respondent No.2. CORAM : MOHIT S. SHAH, C.J. & DR, D.Y. CHANDRACHUD , J. Friday, September 24, 2010 P.C. In this appeal under clause 15 of the Letters Patent , the judgment dated 22 February 2010 of the learned Single Judge dismissing Writ Petition No.915 of 2010 filed by Sou. Madhubala Ramesh Bhore and another Writ Petition No.1035 of 2010 of respondent No.1 Smt. Poonam Jagdish Pandey have been challenged. Both the writ petitions were directed against the order dated 7th November 2009 of the learned Civil Judge, Senior Division, Nasik, in an election petition, below application Exhibit 8, in Election Petition No. 2/2007. 2. The election for Councillor of Nasik Municipal Corporation from Ward No.17, Panchavati vibhag were held on 1 February 2007. The appellant was declared as elected candidate from Ward No.17. Respondent No.1- Smt. Poonam Jagdish Pandey was the next candidate with second highest votes. The appellant secured 1163 votes and respondent secured 1161 votes. Thus, the appellant succeeded in the election by a margin of two votes over the first respondent. 3. The first respondent filed election petition No.2 of 2007 before the learned Civil Judge, Senior Division, Nasik challenging the above result. The respondent No.1 also filed an application for recounting of votes and declaring respondent No.1 as the elected Councillor in Ward No.17. In the same election petition, the first respondent filed an application, Exhibit `8', for recounting of votes and to check the validity/invalidity of votes while recounting and to appoint a Commissioner for recounting of votes. The appellant herein filed a written statement cum reply opposing the reliefs sought by respondent No.1 and contended that the election conducted by respondent Nos.2 and 3 was fair, proper and as per the rules and regulations 4. The Election Tribunal by the impugned order dated 7th November 2009 partly allowed the application and directed that only the postal ballots be recounted. 5. Being aggrieved by the above order, the first respondent filed writ petition No.1035 of 2010 whereas appellant herein filed writ petition No.915 of 2010. The learned Single Judge allowed the writ petition of the first respondent herein and dismissed the writ petition of the appellant. Hence, this appeal at the instance of the returned candidate who is respondent No.1 in the election petition and hereinafter referred to as the `appellant'. 6. The learned counsel for the appellant submitted that the learned Single Judge erred in holding that votes contained in the sealed envelop were required to be seen by the Tribunal before giving any finding whether a corrupt 3 practice has been committed by the candidate. It is submitted that the learned Single Judge proceeded on the basis as if the votes contained in the sealed envelop were documentary evidence and the election tribunal was entitled to see such documents and show them to the parties. Reliance is placed on the decision in Vadivelu v. Sundaram and others, AIR 2000 SC 3230 in support of the contention that the election tribunal cannot give an interim direction on counting of votes, without first giving a finding that any illegality was committed in the conduct of the elections or that any corrupt practice was followed by the returned candidate. 7. On the other hand, the learned counsel for the first respondent herein (election petitioner) has supported the order of the learned Single Judge by relying on the decision of the Apex Court in Dr. Wilfred D'Souza v. Francis Menino Jesus Ferrao, AIR 1977 SC 286 and submitted that tender ballot papers can be taken into account during the proceeding of the election petition after the election petitioner leads evidence to show that some other person had cast the initial vote and that person was not a genuine voter and that a genuine voter had marked a tendered ballot paper. It is submitted that the three voters in the electoral roll i.e. Mr. Rajendra Tukaram Patil, Ms. Ratna Rajendra Patil and Surubai Tukaram Patil have deposed on oath before the Tribunal that when they went to election booth, they were informed that votes were already cast in their names and that, therefore, they were required to give tender votes. It is further submitted that the said witnesses were cross-examined but nothing came out from the cross-examination and, therefore, the learned Single Judge was justified in directing that the votes of the said three persons placed in the sealed envelop be seen by the election tribunal. 8. The election for Councillors of a Municipal Corporations is held under the provisions of the BPMC Act, 1949 and is governed by the provisions of Chapter XXIX and the Election Rules, Schedule D of the Act made under section 453 of the said Act. Rules 26 and 27 read as under: 26. Tendered votes. If the person representing himself to be a particular elector named on the election roll applies for a ballot paper after another person has voted as such elector, the applicant shall, after duly answering such questions as the presiding officer may ask, be entitled to mark a ballot paper in the same manner as any other elector. Such ballot paper (hereinafter referred to as a tendered ballot paper) shall, instead of being placed in the ballot box, be given to the presiding officer and endorsed by him with the name of the elector and his number on the election roll and the name of the ward to which the election roll relates, and shall be set aside in a separate packet and shall not be counted by the Commissioner. The name of the elector and his number on the election roll and the name or distinctive number of the polling station to which the election roll relates such be entered in a list in Form C which shall bear the heading "Tendered Votes List". The person tendering such ballot paper shall sign his name and address thereon or, if he is unable to write, affix his thumb impression against the entry in that list. 27. Challenged votes. If any polling agent declares and undertake to prove that any person by applying for a ballot paper has committed the offence of impersonation, the presiding officer may require such person to enter in the list of challenged votes (which shall be in Form D) his name and address or, if he is unable to write, to affix his thumb impression thereto and may further require such person to produce evidence of identification. If such person, on being questioned in the manner provided in rule 24, answers the first question in the affirmative and the other questions in the negative, he shall be allowed to vote after he has been informed of the penalty for personation. The presiding officer shall make a note of the circumstances and of his decision on the list, of challenged votes: Provided that a deposit of Rs.20 may be demanded for each such challenge which shall be forfeited if, on inquiry, the challenge is found to be frivolous and not made in good faith." 5 9. In Dr. Wilfred D'Souza v. Francis Menino Jesus Ferrao, AIR 1977 SC 286, the Apex Court while dealing with a similar case under the Representation of the People Act,, laid down the following propositions: "The tendered ballot papers, even though excluded from consideration at the time of counting of votes after poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled (conceded). Before, however, a tendered ballot paper can be taken into account during the proceedings of election petition, evidence would have to be led on the following two points: (1) The person who cast the initial vote as a voter on a particular serial number in the electrol roll was someone other than the genuine voter mentioned at that number. (2) It was such genuine voter who marked the tendered ballot paper. Once the above two points are proved, the following consequences would follow: (a) The Court would excluded the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast, and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked. The proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters." 9. The learned counsel for the first respondent heavily relied upon the aforesaid decision in support of his case that since the case of three witnesses was already examined before the election tribunal, the election tribunal passed the order on the application Exhibit `8' and that all the three witnesses have stated that when they went to cast their votes, they were informed that votes were already cast in their names and, therefore, they had to give tendered votes which were placed in the sealed envelopes. The learned counsel for the appellant-returned candidate submitted that even as per the decision of the Apex Court, the direction to open the tendered ballot papers has to be given after a prima facie finding that the witnesses had not cast their votes initially and that subsequently they cast their votes and, therefore, the witnesses were required to give tendered votes in sealed envelopes. The learned counsel for the appellant relied upon the decision in Vadivelu (supra) in support of the contention that recount of votes cannot be ordered unless the court gives the finding that the election was conducted illegally or that the returned candidate had committed a corrupt practice. 10. Having heard the learned counsel for the parties, we find that the principles laid down in the case of Dr. Wilfred D'Souza (supra) are applicable to the facts of the instant case. 11. The contention that arises for our consideration is that when the election tribunal has not given any specific finding about the prima facie proof in respect of the case of three witnesses examined before the tribunal, whether there was any justification for the learned Single Judge to direct that the tendered votes in the sealed envelops be opened and seen by the election tribunal. It is true that there is no express finding in the impugned order and ordinarily we would have, therefore, remanded the matter to the election tribunal. However, having regard to the fact that the election in question was held on 1 February 2007, nearly 3.1/2 years back, we permitted the learned 7 counsel for the parties to take us through the evidence before the election tribunal. 12. Having gone through the evidence of the three witnesses i.e. Mr. Rajendra Tukaram Patil, Ms. Ratna Rajendra Patil and Surubai Tukaram Patil, we find that the case of all the three witnesses is that when they went to the election booth to cast their votes, they were informed that votes were already cast against their names and after the witnesses were identified, they were permitted to tender votes in sealed envelopes. The witnesses were also cross- examined. Having gone through the deposition of the said witnesses, we are of the view that the material on record is sufficient to prima facie show that the persons who cast the initial votes were other than the witnesses themselves and, therefore, they were allowed to tender ballot papers which were placed in sealed envelop. 13. In view of the above, we are of the view that direction given by the learned Single Judge to open the sealed envelopes containing the tendered votes of the three witnesses is not contrary to law. 14. As regards the decision in Vadivelu (supra) relied upon by the learned counsel for the appellant, that was a case where the election petitioner had not given any details after making an allegation that the electoral roll contained names of dead persons and that some persons impersonated and cast votes in favour of elected candidate. No details were given as to who committed such irregularity or as to how many such votes were cast in favour of the elected candidate. It also did not indicate in what manner there was an improper acceptance or rejection of votes. The petitioner when examined as witness could not supplement anything by way of evidence. 15. In view of the above discussion, we dismiss the appeal, but we make it clear that the observations made in this judgment are only for the limited purpose of examining the question on the basis of the material on record. As regards the direction given by the election tribunal which has been upheld by the learned Single Judge about opening the sealed envelope containing postal ballots, we are not inclined to interfere with the said order. We further make it clear that after opening the sealed envelopes containing the tendered votes of three witnesses and the sealed envelope containing the postal ballots, the election tribunal shall proceed further with the trial of the election petition in accordance with law. 16. At this stage, the learned counsel for the appellant prays that operation of this order be stayed. The learned counsel for respondent No.1 opposes the prayer. In the facts and circumstances of the case, we do not see any justification in staying the operation of the order. 17. Appeal stands disposed of accordingly. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.