C.W.P. No.9227 of 2009 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.9227 of 2009 Date of Decision: 08.01.2010 Ravinder Kumar Rawal .....Petitioner Versus V.K. Sood and others ....Respondents Present: Mr. Arun Palli, Sr. Advocate with Mr. Akshay Bhan, Advocate, Mr. Jai Bhagwan, Advocate Mr. K.V.S. Kang, Advocate Mr. Sushil Garg, Advocate Mr. Tushar Sharma, Advocate Mr. Amit Jhanjhi, Advocate for the petitioner. Mr. Satya Pal Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for respondent No.1. Mr. B.S. Rana, Addl. A.G., Haryana for respondent Nos.2 and 3. 2. C.W.P. No.9452 of 2009 D.C. Panchkula and another .....Petitioners Versus V.K. Sood and others ....Respondents Present: Mr. B.S. Rana, Addl. A.G., Haryana for the petitioners. Mr. Satya Pal Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for respondent No.1. Mr. Arun Palli, Sr. Advocate with Mr. Akshay Bhan, Advocate Mr. Jai Bhagwan Advocate Mr. K.V.S. Kang, Advocate Mr. Sushil Garg, Advocate Mr. Tushar Sharma, Advocate Mr. Amit Jhanjhi, Advocate for respondent No.2. C.W.P. No.9227 of 2009 -2- CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J. I. The success in the election petition and the principal grounds of challenge 1. By two consecutive orders dated 04.05.2009 passed by the Election Tribunal, Panchkula and 08.06.2009 passed by the District Judge, Panchkula setting aside the election to the post of the President of the Panchkula, Municipal Council, the elected candidate Sh. Ravinder Kumar Rawal and the Deputy Commissioner, Panchkula and the Sub Divisional Officer (Civil), Panchkula have felt themselves aggrieved and they have assailed the decisions through the writ petitions filed in C.W.P.No.9227 of 2009 and 9452 of 2009 respectively. 2. The writ petition of the official respondents in the election petition has come about on account of the observations of the Election Tribunal and the Appellate Court that the election had not been held as per the procedure prescribed under law. To such procedure, we have to turn to the Haryana Municipal Act, 1973 (hereinafter called as 'Act') and the relevant Municipal Election Rules of 1978 (hereinafter called as the 'Rules'). The election to the post of members of the Municipality is by a process of direct election from the territorial constituencies in the municipal area as laid down under Section 9 of the Act, while the election to the post C.W.P. No.9227 of 2009 -3- as President and Vice President shall be from an electoral college of such elected members. The election of the members had been held on 30.03.2008 and the results were notified on 31.03.2008. 3. The Sub Divisional Officer (Civil) had been appointed as a convener for conducting the election of the President and the Vice President on 15.04.2008. He had called the first meeting to take place on 25.04.2008 when out of 31 members, 17 had been present and the meeting was adjourned to 14.05.2008 when on votes cast on ballot papers sent by the State Election Commissioner, the petitioner had held the largest number of votes to be declared a winner. The challenge to the election is brought at the instance of one of the members, Sh. V.K. Sood, on the grounds that there was no secrecy in the electoral process in that a register maintained by the Election Officer noted down the serial numbers, wards and the signatures of the members to whom the ballot papers had been given and hence the entire election was vitiated. According to the petitioner, the ballot paper itself was not in the form prescribed by the relevant rules and the directives issued by the Government with reference to the conduct of the President’s election had not been strictly followed. The other ground was that the candidates had been advised to tick mark the person that they were to choose as President, while the prescribed rules allowed even for marking of a negative vote by giving the option to mark 'Yes' or 'No' against the names of the contesting candidates. The form of ballot papers given and the particulars entered in the separate register had been C.W.P. No.9227 of 2009 -4- found by the Election Tribunal to vitiate the decision, even while it held that the mode of marking for expressing preference did not cause any prejudice. The Appellate Court signalled aye to the Election Tribunal’s verdict. The writ petitions have, therefore, been filed by the candidate declared as elected and the official respondents whose mode of conduct of election had been faulted. II. Contentions by the petitioner assailing the decisions (a) Keeping a register containing serial nos. and names and sealing it protected secrecy 4. Sh. Arun Palli, learned Senior Counsel appearing for the petitioner argued that the ground for declaring the election as set out under Rule 85 of the Election Rules pointed out to the fact that the ground that was invoked was Rule 85(d) that the result of the election in so far as it concerned a returned candidate had been materially affected by a material irregularity in the procedure for the election, as set out in sub clause (iv) of clause (d). To him the material irregularity in the procedure of the election must be shown to be such that it had the effect of altering or affecting the election result materially. The material irregularity, which is explained as including improper acceptance or refusal of any nomination or improper reception or refusal of vote or reception of any vote, which is void for non-compliance with the provisions of the Act or the Rules or any mistake in the use of any form if it did not materially affect the result of the election, then even such material irregularity cannot be the basis for setting aside the election. In this C.W.P. No.9227 of 2009 -5- case, according to the learned Senior Counsel, the mistake attributed to the process was that the names of the candidates containing the details of the serial numbers had been entered in a separate register which serial number corresponded to the serial numbers given in the ballot papers and the register had been sealed and kept aside and not opened till the Election Tribunal broke the seal after a litigation had commenced and, therefore, by merely counting the votes that had been polled, it was not possible to identify the person that had voted for or against a particular candidate. All the members had gone through the process without any form of objection and the contention raised by the petitioner in the election petition that the members had apprehension that their identify could be revealed by matching the serial numbers and the ward numbers noted against their names in the register along with serial number found in the ballot papers was not established in any sense, for it was nobody's case that the sealed cover in which the register had been kept had been opened and the identity revealed at any point of time. Even the contention that the voters had been advised to give a tick-mark had no ramification to the ultimate result, since all the members had been briefed homogeneously about the method of marking so that there was no confusion in the mind of any of the members as to the mode of casting the votes. (b) Ballot paper used, same as for election of members; if there was no objection to such election, none could exist for election of president also 5. Learned Senior Counsel, Sh. Arun Palli would also C.W.P. No.9227 of 2009 -6- submit by way of a general objection to the judgment that after all the ballot papers that had been given to the members were on similar lines to how the General Election to the Assembly and the Parliament were being held and the maintenance of register itself was a substitute for retention of a counterfoil that would have contained the serial numbers of the respective ballot papers containing the same serial numbers. If the election of the members themselves by issuance of such ballot papers was not challenged, there cannot be any objection to the same ballot papers submitted for the election of the President. Referring to Rule 36 of the Election Rules, the learned Senior Counsel would submit that if instead of a counterfoil, a separate register can be maintained, no exception could be taken to such a ballot paper, for either the counterfoil or a register containing the serial number matching with the ballot papers supplied to voter was only to ensure that the paper was not substituted or to consider any objection that may be raised that a voter had not been given the chance to vote at all. It was a method to ensure the actual presence of a voter to whom the ballot paper had been authentically given containing the seal of the Election Officer. To all these objections, learned Senior Counsel, Sh. Satpal Jain appearing for the complainant before the Election Tribunal submitted that the election to the post of the President is on non-party lines and, therefore, the secrecy that is required to be maintained that would allow for party candidates among members voting without party considerations was at a higher level and even a C.W.P. No.9227 of 2009 -7- possibility of the voters' identity being revealed was good enough to vitiate the entire election process. If it was denied even by the petitioner that by matching the entries in the register sealed by the Election Officer with the serial numbers found in the ballot papers that contained the person to whom the vote had been cast, it was possible to identify the particular person the secrecy was already compromised and it was irrelevant that such a comparison had not been made by opening the seal. According to the procedure prescribed for election of candidates to Parliament or Assemblies with a large electoral college running to thousands and lacs could hardly be a comparison to election of a President from amongst of a motley collection of persons, who were but 31 in numbers and when the rules and the directives of the Election Commission prescribed the form of the ballot papers with no reference to serial numbers, it was not merely accidental but it was deliberate. The form of ballot papers prescribed under Rule 36 was meant only for election of member themselves and was not applicable to the election of the President or the Vice President. The Election Officer had perforce to follow the other procedure prescribed under the Act and the relevant Rules and any deviance per se constituted a material irregularity which in turn contributed to affecting the election results. The apprehension expressed by the petitioner that a free voting was impaired in the minds of the voters by a possibility of revelation of the voters' identity was real and the election could not be said to be fair and open. Even as regards the C.W.P. No.9227 of 2009 -8- mode of casting the preference by tick-marking against the candidate to be selected, a vote cast in a manner that the Rules did not envisage was an invalid vote and the entire election was, therefore, vitiated. (c) Decision relied on by the petitioner before the Election Tribunal to accept the election petition was not applicable 6. Both the counsel had made elaborate references also to several decision of this Court and the Hon'ble Supreme Court to fortify the respective contentions. The learned Senior Counsel appearing for the petitioner, Sh. Arun Palli assailed the judgment of the Election Tribunal and of the Appellate Authority, who by making their references to a judgment rendered by Division Bench of this Hon'ble Court in C.W.P. No.6534 of 2005 reported in Smt. Seema Chaudhary Vs. The State of Haryana CL (2008-2) PLR 156 , as though it applied on all fours to a case, which on a fact situation was not congruent in any way, had committed a serious error of reasoning. The above writ petition in C.W.P. No.6534 of 2005 dealt with the case of election of President of the Municipal Council, Panchkula in the year 2003 when a No Confidence Motion against the President, Smt. Seema Chaudhary was challenged on the ground that there had been violation of secrecy of votes and when the Court found on perusing records that the envelope containing the records of the proceedings had been torn and the seals removed. On the asking of the Court, it was disclosed that the envelopes had been unsealed and opened by the C.W.P. No.9227 of 2009 -9- Deputy Commissioner to verify the contents, which explanation was not found acceptable and hence the Court held that the secrecy of the ballot papers had been breached. The very same person, Smt. Seema Chaudhary had filed C.W.P. No.6755 of 2008 praying that the election scheduled to be held on 25.04.2008, which is presently in challenge, was to be conducted through secret ballots when the Bench held that the Presiding Officer should be reminded of the earlier order of this Court passed in C.W.P. No.5010 of 2005 on 01.04.2005. (d) The envelope containing the voters’ register had not been opened and hence, secrecy not compromised 7. The secrecy of the voting had not been in any way breached, according to the learned Senior Counsel, Sh. Arun Palli, since it was nobody's case that any information was made available or secured by unsealing the envelope containing the register of names and serial numbers of the ballot papers given to the candidates to ascertain in whose favour they had respectively voted. He would argue that apart from the ipse dixit of the petitioner that the voters had apprehensions that their identity would be revealed, none of the persons amongst the voters had been examined on the petitioner's side to say that they were so influenced and that it had any bearing to the free choice of the candidate that they made when the preference was indicated in the ballot papers. The method of expressing the choice of either a tick-marking or yes or no also, according to him was irrelevant, as the Election Tribunal and the C.W.P. No.9227 of 2009 -10- Appellate Court themselves rejected such a contention raised by the petitioner before the Election Tribunal. The learned Senior Counsel refers to Rule 69(F)(4), which requires the ballot papers to be serially numbered as being relevant only in the context of Rule 36 which also refers to the form of ballot papers in the election of members that required each ballot paper should have a counterfoil attached and a serial number itself will be irrelevant if the counterfoil also did not contain such serial number. In this case, there was no counterfoil and therefore, a record-sheet had been substituted to retain such particulars. The record-sheet itself had been kept in a sealed cover and the polling of the Vice President had also taken place in the same fashion. No objection had been given by the very same petitioner before the Election Tribunal and the decision of the Election Tribunal and the Appellate Court were, therefore, vitiated in referring to issues, which were irrelevant and which had no bearing to affect the ultimate outcome of the results in election. (e) Court shall not fish out information on the basis of vague allegations in the election petition 8. The learned Senior Counsel refers to decision in Hari Ram Vs. Hira Singh and others (1984) 2 SCC 36 where on a challenge to an election held for the Metropolitan Council of Narela Constituency, the Hon'ble Supreme Court held that the Court should sparingly exercise its power to allow the production of electoral rolls and counterfoils. The Hon'ble Supreme Court C.W.P. No.9227 of 2009 -11- reminded that the demand for production of these papers, which was to fish out materials in challenging the election could not be done when the averments in the election petition were only vague. This point need not wait for any detailed examination. The petitioner has no lesson to be apply to this case where the Hon'ble Supreme Court was dealing with the power of a Court at the interlocutory stage to fish out information for buttressing vague allegations relating to challenge to the election contained in the election petition. We are not at the stage of dealing with an interlocutory order for production of ballot papers and the issue at hand to be resolved is whether the secrecy in the election process had been compromised by the procedure adopted by the Election Officer. (f) Use of wrong mark on the ballot paper shall not vitiate the electoral process- distinguishing feature 9. The learned Senior Counsel referred to a decision in T.H. Musthaffa Vs. M.P. Varghese and others (1999) 8 SCC 692 that dealt with the issue of pleadings and what was required to be established in an election petition to annul the election. The Hon'ble Supreme Court was dealing with the issue of relief of recounting sought by adducing evidence that the stamping instrument supplied by the Election Commission for the purpose of exercising preference of voter was the wrong instrument, in as much as it was meant for the polling officials for making distinguishing marks of the polling stations. On a plea made in the C.W.P. No.9227 of 2009 -12- election petition as to using such wrong instrument for casting votes, the Hon'ble Supreme Court held that plea was not sufficient to raise the issue. This decision is explained by the learned Senior Counsel appearing for the respondent, Sh. Satya Pal Jain by pointing out that if the Election Officers had given a wrong seal to the voters to cast the votes and uniformally the same seal had been used by all the voters, the material irregulairty did not permeate in upsetting the ultimate results. While in this case, the attack was with reference to how the secrecy in the electoral process had been vitiated by making possible the revelation of identity of voters, I am of the view that this decision is also not relevant for the purpose of the case and need not detain us from examining the real controversies in issue. III. Meaning of ‘materially affecting the result’ 10. As to the nature of pleadings and the proof that has to be adduced to vitiate the election, the learned Senior Counsel, Sh. Palli referred to the decision in Vashist Narain Sharma Vs. Dev Chandra and others AIR 1954 SC 513(1) that dealt with an election petition under the Representation of the People Act where a similar expression, ‘the result of the election as being materially affected’ was sought to be explained. The Hon'ble Supreme Court also explained in the said judgment how the burden of proof is to be discharged, which underlines the legal proposition in the following words:- "The words "the result of the election has been materially C.W.P. No.9227 of 2009 -13- affected" indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate." Elsewhere in the said same judgment, the Hon'ble Supreme Court while dealing with Section 100(1)(c) of the Represention of People Act held in the context of an improper acceptance of votes held: "The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the grounds of improper acceptance of a nomination paper, but neither the tribunal nor this Cout is concerned with the inconvenience resulting from the operation of the law." 11. In this case, we have not a situation of any improper votes as having been received, which is convered under Rule 85(d)(i), but the material irregularity in the procedure for election is what is put to test. This decision will have an immediate bearing to us about how the material irregularity complained of is contained through an inclusive expression found in the explanation that it could also be C.W.P. No.9227 of 2009 -14- for non-compliance with the provisions of the Act and the Rules. It must be immediately noticed that the non-compliance of the Act or the Rules must have the effect of rendering void the reception of any vote. In our present context, tick-marking the vote or the entry of the serial number in the ballot paper must have the effect of rendering the vote cast itself as void. (a) Relevant rules to be applied for the election of President distinct from other class of election of ordinary members 12. Sh. Satya Pal Jain, learned Senior Counsel appearing for the respondent would submit that Rules 1 to 69 as contained in the Rules themselves have no relevance, in so far as they make reference to the form of ballot papers, the voting and counting of votes, the appointment of election agents etc., for they referred to the election of ordinary members of the Municipal Council and the relevant provisions would be only from Rule 70 onwards. Rule 70 refers to the oath of allegiance and election to President, which spells out completely a different procedure. Rule 70 reads as follows: "70. Oath of allegiance and election of President etc.- (1) The Deputy Commissioner or any gazetted officer appointed by him in this behalf shall, within a period of [thirty days] [Substituted for the words "fourteen days vide Haryana Notification No.GSR 84/HA24/73/S.257 and 276/94 dated 28.12.1994] of the publication of the notification of the names of the members elected to a committee convene the first meeting of the newly- constituted committee at forty-eight hours notice to be delivered at their ordinary place of residence. The notice shall clearly state that the oath of allegiance will be administered to the members present, and that the election of President and Vice Pesident [-] [Words "or Vice- President" omitted by Haryana Notification C.W.P. No.9227 of 2009 -15- No.S.O.72/HA24/73/S.257 and S.276/94 dated 19.08.1994] shall be held in the meeting. The convener shall administer the oaths to the members and shall preside over the meeting till the election of the President and the Vice-President. Such meeting shall be deemed to be a validly convened meeting of the Committee. Notwithstanding anything contained in any bye-laws, made under the provisions of Section 31 of the Act, the administration of the oath of allegiance and the election of the President and Vice-President shall be recorded as part of the proceeding in the minutes of the meeting. (2) The oath of allegiance shall be administered to a member who was not present at the meeting convened under sub-rule (1) or to member elected or nominated to fill a cause vacancy subsequently by the Chairman of the meeting at which such member appears to take such oath. (3) The terms of office of the President shall be for five years or the residue of the term of his office as a member whichever is less. The President shall be elected from amongst the members of the Committee. [Substituted vide Haryana Notification No.GSR 78/HA24/73/S.257 and 276/94 dated 6.12.1994.] (4).......................... 13. The SDO under Rule 70 had a clear role to publish the notification of the names of the members elected to a Committee and to convene the first meeting of the newly constituted committee at 48 hours notice when he shall hold the election of the President and Vice President. The convener shall preside over the meeting till the election of the