HIGH COURT OF UTTARAKHAND AT NAINITAL Election Petition No.2 of 2007 Subhodh Uniyal S/o Sri D. N. Uniyal R/o Uniyal Bhawan Narendra Nagar Uttarakhand … Petitioner Vs Sri Om Gopal S/o Sri Chandan Singh & others … Respondents Dated:- 09th December, 2011 Mr. V. K. Kohli, the learned senior counsel assisted by Mr. Hari Mohan Bhatia, the learned counsel for the petitioner. Mr. Rakesh Thapaliyal, the learned counsel for the respondents. Hon’ble Tarun Agarwala, J. 1. The election of the legislative assembly in Uttarakhand was notified for the 8 Narendranagar Legislative Assembly Constituency and was held on 21.02.2007. The result was declared on 27.02.2007. The petitioner contested the election as a candidate of the Indian National Congress. Respondent no.1, Om Gopal contested the election as a candidate of the Uttarakhand Kranti Dal. The Returning Officer declared that respondent no.1 was elected by a margin of 4 votes. The petitioner polled 13,725 votes which included 4 postal ballots whereas, the respondent no.1 polled 13,729 votes which included 17 postal ballots. 2. The petitioner, being aggrieved by the declaration of the result, filed the present election petition under Section 80 and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951) praying for a direction that the EVM (Electronic Voting Machine) votes and postal ballots votes be recounted and that the election of the respondent no.1 from Narendranagar -2- Constituency be declared void and the petitioner be declared elected from the said constituency. 3. The petitioner contended that there had been a number of irregularities in the counting of the votes and that the ballot papers were wrongly rejected without assigning any reason, on account of which, the election has been materially affected. It was contended in paragraph 8 of the petition that there was improper reception, refusal and rejection of the votes, which were cast through postal ballots and that the counting of the postal ballots was in violation of Rule 54A of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules of 1961). In paragraph 10 of the petition, it was alleged that Kunwar Singh Rawat, Senior Assistant, Tehsil Narendranagar was allotted the work of sealing of the EVM in gross violation of the directions of the Election Commission. It was contended that the staff in the Legislative Constituency could not be given election duty in that constituency and that Kunwar Singh Rawat belongs to the same village as that of respondent no.1 and that Kunwar Singh Rawat is closely related to respondent no.1. 4. In paragraph 11, it was contended by the petitioner that while the counting of EVMs was in progress, the Returning Officer started counting the postal ballot papers at around 11:30 AM and started scrutinizing the declaration in Form 13A. It was alleged that as per Rule 54A of the Rules of 1961, it was mandatory to count the postal ballot papers first and, thereafter count the votes in the EVM and thus the Returning Officer committed a grave irregularity. It was also alleged that the Returning Officer shifted Kunwar Singh Rawat from sealing duty of EVM to count the postal ballot papers without any order in writing or instructions with an oblique motive. In the same -3- paragraph, it was further alleged that the Returning Officer declared that 240 postal ballot papers were received and further declared that the postal ballot papers would be opened at around 12:20 PM. In paragraph 12, it was alleged that the Returning Officer started counting the postal ballot papers with the assistance of Kunwar Singh Rawat without calling the candidates or the election agent of the candidates or the counting agent, and that, after counting the postal ballot papers in the absence of the petitioner or his election agent or counting agent, the Returning Officer at 3:30 PM announced the election intimating that the petitioner had been elected by a margin of 9 votes and that the counting of the votes in the EVMs indicated that the petitioner had led by a margin of 109 votes. 5. In paragraph 13, it was alleged that the petitioner was declared elected by the Returning Officer after the counting of the EVM votes and postal ballot papers and that the news was also flashed on the electronic and print media and that the office of the Election Commission was also informed about the result, but subsequently, the Returning Officer in collusion with Kunwar Singh Rawat later announced that respondent no.1 had won the election. In paragraph 14, it has been alleged that Kunwar Singh Rawat had illegally torn the postal ballots, which were cast in favour of the petitioner. In para 16, it has been alleged that the Returning Officer at around 5:30 PM announced that the respondent no.1 had been elected by a margin of 4 votes. At around 6PM, the petitioner by way of protest submitted an application and requested the Returning Officer for recounting of the EVM and postal ballot papers. In paragraph 17, it was alleged that the Returning Officer refused to recount the EVM votes and only ordered recounting of the postal ballot papers. In paragraph 18, it was alleged that the election agent of the petitioner Soban -4- Singh Negi saw several postal ballot papers and declaration forms lying under the table of the Returning Officer. 6. In paragraph 19, the petitioner alleged that the District Election Officer (District Magistrate concerned) and Superintendent of Police came in the counting hall and found Kunwar Singh Rawat handling the postal ballot papers and that the District Magistrate physically removed Kunwar Singh Rawat from the table where the postal ballot papers were kept. In para 20, it has been alleged that upon the intervention of the District Magistrate, the recounting of the postal ballot papers started in the presence of the observer. In paragraph 21, it was alleged that on recounting the votes, the Returning Officer declared that 89 postal ballot papers were invalid and 137 postal ballot papers were valid. It was further alleged that out of 89 postal ballot papers, 50 postal ballot papers were cast in favour of the petitioner while invalid postal ballot papers were cast in favour of the BJP candidate. It was alleged that the Returning Officer illegally declared that the petitioner received only 4 valid postal ballot papers and that 17 postal ballot papers were cast in favour of the respondent no.1. In paragraph 22, it was alleged that out of 17 postal ballot papers which was counted as valid in favour of the respondent no.1, 7 postal ballot papers should have been rejected as invalid as it did not contain the name of the voter. In paragraph 23, it was alleged that 50 postal ballot papers which were polled in favour of the petitioner was rejected on the ground that Form 13A of the Rules of 1961 was not attached with the postal ballot papers. In paragraph 29, it was alleged that the Returning Officer illegally denied recounting of the EVM votes. It was further alleged that some of the postal ballot papers which were validly cast in favour of the petitioner were wrongly rejected -5- and these postal ballot papers were serial nos.715, 721, 735, 736, 737, 738, 739, 743, 746, 750, 756 & 763. 7. The returned candidate, respondent no.1 filed his written statement and raised a preliminary objection to the effect that the copy of the election petition, which was served upon the respondent, was not a true copy of the original election petition and that only the first page of the election petition had been attested whereas all the pages should have been attested and, therefore, the election petition should be dismissed for non- compliance of the provision of Section 81 (3) of the Representation of People Act, 1951 (hereinafter referred to as the Act of 1951) as well as non-compliance of Rule 5 of Chapter XV-A of the Rules of the Court. The respondent no.1 in his written statement denied the allegations made in the petition and contended that the postal ballot papers were counted first and only thereafter the EVM votes were counted. The respondent no.1 contended that there was no violation of Rule 54-A of the Rules of 1961. 8. In paragraph 9 of the written statement, it was alleged that Kunwar Singh Rawat was not related to respondent no.1 and the allegations made in this behalf was totally false. It was further contended that the work of counting of postal ballot papers were assigned to the Tehsildar who was the Assistant Returning Officer and was not assigned to Kunwar Singh Rawat. Kunwar Singh Rawat was assigned the work of scrutinizing and sealing of the EVM votes. In paragraph 10, it has been alleged that the counting of the postal ballot papers was done in accordance with Rule 54A of the Rules of 1961 and that the postal ballot papers were counted before counting the votes in the EVM. -6- 9. It was further stated that the envelope containing the postal ballot papers contained 243 postal ballot papers out of which 17 postal ballot papers did not pertain to the constituency in question and hence were separated and kept apart and out of remaining 226 postal ballot papers, 46 were not accompanied by any declaration in Form 13A and, in 43, the declaration in Form 13-A was incomplete. There were other defects also and as such 89 ballot papers were not counted and were rejected. In paragraph 10, it was further stated that the respondent no.1 received 19 votes and that the petitioner received only 3 votes from the postal ballot papers, but after recounting, it was found that respondent no.1 received 17 votes and the petitioner received 4 votes. It was also stated that the petitioner only made a request for recounting of the postal ballot papers. 10. It was further stated that at the time of the original counting of the postal ballot papers as well as when recounting was done, the petitioner and other candidates and their election counting agent were present. During the course of recounting, the election agent of the petitioner was also present. It was also stated that the Returning Officer had passed an order in writing directing Kunwar Singh Rawat and Rajendra Uniyal to assist the Assistant Returning Officer in the counting of the postal ballot papers and there was no oblique motive on the part of the Returning Officer in directing Kunwar Snigh Rawat and Rajendra Uniyal to do the work of counting of postal ballot papers. Respondent no.1 further denied that the Returning Officer had ever made any announcement that the petitioner had been elected or that the petitioner was leading by a margin of 109 votes in the counting of the EVM votes. The respondent no.1, however admitted that the petitioner led by 9 votes in the EVM -7- and, upon the addition of the postal ballot papers, the petitioner lost by a margin of 4 votes. 11. In paragraph 15 of the written statement, respondent no.1 contended that the petitioner only moved a one-line application before the Returning Officer for recounting of the postal ballot papers only. The recounting was ordered and the results were declared at around 6:00 PM on 22nd February, 2007. The respondent no.1 in paragraph 17 further denied the fact that Kunwar Singh Rawat was removed from the table or that the postal ballot papers were found lying under the table of the Returning Officer. In paragraph 21, the respondent no.1 denied that 50 postal ballot papers, which were rejected, were in favour of the petitioner and further submitted that the said ballot papers were rightly rejected since they did not comply with the requirement of Rule 54A of the Rules of 1961. The respondent no.1 contended that the election petition filed by the petitioner was patently misconceived and was liable to be rejected. 12. On the basis of the pleadings led by the parties, the following issues were framed:- ”1. Whether the counting of postal ballots was in violation of Rule 54-A of the Conduct of Election Rules, 1961, as alleged in para no.8 of the election petition? If so, its effect? 2. Whether the Returning Officer wrongly rejected the postal votes, which were cast in favour of the petitioner and counted seven invalid postal ballots in favour of the respondent no.1, as alleged in para no.29 of the election petition? If so, its effect? -8- 3. Whether the Returning Officer has committed irregularities and illegality in the counting of EVM votes? If so, its effect? 4. Whether the copy of the election petition as supplied to the returned candidate is not a true copy of the election petition? If so, its effect? 5. Whether the petition lacks in material facts and particulars and it does not disclose any cause of action to the petitioner? If so, its effect? 6. Whether the Annexures and Schedules with the election petition have not been verified in accordance with law? If so, its effect? 7. To what relief, if any, is the petitioner entitled?” 13. The petitioner in support of his case examined as many as four witnesses, i.e. Subhodh Uniyal PW1, the petitioner himself, Soban Singh Negi PW2 chief election agent of the petitioner, Rajendra Prasad Uniyal PW3 Senior Assistant at Sub-Tehsil Gaja, who was assigned the work of sealing of EVM and Sanjay Kumar PW4, the then District Magistrate. 14. The respondent no.1 in support of his case has examined Kunwar Singh Rawat RW1, who was assigned to count the postal ballot papers, Dr. Meharban Singh Bisht RW2 Returning Officer, Radha Krishan Naithani RW3 Assistant Returning Officer, A. N. Das RW4 Examiner / Scrutinizer appointed by the Election Commission of India, Om Gopal Rawat RW5, the returned candidate, Sahjanand Sharma RW8, Observer and Prashant Joshi RW10, Registrar (Inspection) of this Court. -9- 15. In the light of the pleadings and evidence that has come forward, the petition basically revolves upon the rejection of the postal ballot papers by the Returning Officer on different counts. Issues no.1 & 2 relate to the rejection of the postal ballot papers. Issue No.3 relates to the alleged irregularity being committed by the Returning Officer with regard to the counting of the EVM votes. Issues no.4 & 6 relate to the question as to whether the election petition supplied to the returned candidate was supplied in accordance with the Rules and issue no.5 relates to the question as to whether the petition lacks material particulars and whether it discloses the cause of action or not. 16. Heard Mr. V. K. Kohli, the learned senior counsel assisted by Mr. Hari Mohan Bhatia, the learned counsel for the petitioner and Mr. Rakesh Thapaliyal, the learned counsel for the respondents. 17. With regard to issue no.5, the learned counsel for the returned candidate submitted that these issues should be decided first as preliminary issues. The court, by an order dated 11.03.2008, rejected the contention of the returned candidate on the ground that these issues could only be decided after the evidence was led on all the issues and, at this stage, the said issues could not be decided. Against the order of the court dated 11.03.2008, the returned candidate filed a Special Leave Petition No.10045/2008 before the Supreme Court, which was dismissed by an order dated 25.04.2008, but the order of the court dated 11.03.2008 was set aside. Upon perusing the election petition, the Supreme Court was of the opinion that material facts as required under Section 83(1) of the Act of 1951 have been given -10- regarding EVM as well as postal ballot papers. The order of the Supreme Court is extracted hereunder:- “Although, we agree with Mr. Satya Pal Jain, Sr. Adv. appearing for the petitioner that question regarding lack of material facts and particulars cannot be postponed after the stage of trial but after going through the election petition, we are satisfied that all material facts as required under Section 83(1) of the Representation of the People Act, 1951 (for short ‘the Act’) have been given regarding EVM as well as postal ballots. All material facts are required to be given under Section 83 (1)(a) of the Act whereas under Section 83(1)(b) full particulars are required to be given where a corrupt practice is alleged. Accordingly, while dismissing the special leave petition on merits, we set aside the finding recorded by the learned Judge to the effect that question regarding lack of material facts and particulars could be postponed till the recording of evidence” 18. In the light of the aforesaid finding given by the Supreme Court in its order dated 25.04.2008, it is clear that the material facts as required under Section 83(1) of the Act of 1951 was given with regard to EVM as well as postal ballot papers. Issue No.5 is accordingly decided and it is held that the petition does not lack material facts and particulars and that it discloses the cause of action. 19. With regard to issue no.3, the learned senior counsel for the petitioner contended that he does not wish to press this issue. In view of the statement made by the learned senior counsel for the petitioner, it is held that the Returning Officer did not -11- commit any irregularity or illegality in the counting of the EVM votes and the issue is accordingly decided. 20. Issues No.4 & 6 can be decided together. The issue is, whether the copy of the election petition supplied to the returned candidate was a true copy of the election petition or not and whether the annexures and the schedules with the election petition have been verified in accordance with law or not. These issues have been raised at the instance of respondent no.1. According to the learned counsel for the respondent no.1, objections have been made in para 2A and 2B of the written statement, which is extracted hereunder:- “2- Preliminary Objection (A) That the copy of the instant election petition served on the answering respondent is not a true copy of the original election petition. Moreover, the copy of the election petition except the first page has not been attested by the petitioner to be a true copy of the original petition. Hence the instant election petition is liable to be dismissed by this Hon’ble Court as it does not comply with the provisions of Section 81 (3) of the Representation of People Act, 1951. (B) That even as per Chapter XV-A Rule 5 of the High Court Rules the instant election petition should be dismissed under sub Section 1 of Section 86 of the Act before issuing the process for non compliance of Section 81 (3) of the Representation of the People Act, 1951.” -12- 21. According to the respondent no.1, the copy of the election petition supplied to respondent no.1 was only attested by the petitioner on the first page and not on other pages and, therefore, it was not a true copy of the original petition which was supplied to the respondent nor did it comply with the provision of Section 81 (3) of the Act of 1951. The learned counsel submitted that the copy supplied to respondent no.1 has been submitted to the court as a piece of evidence. A perusal of the said petition would indicate that paragraph 30 of the petition, which was supplied to the respondent no.1, was different to the averments made in paragraph 30 of the original petition. Similarly, the verification clause to the petition as well as the verification clause to the documents and annexures are different to the petition, which was supplied to respondent no.1. The learned counsel for the respondent no.1 submitted that a copy of the petition which was supplied to respondent no.1 differed from the original petition and that it could not be treated as a true copy of the petition as contemplated under Section 81 (3) of the Act of 1951 and such vital defect, which cannot be cured, leads to the dismissal of the election petition under Section 86 (1) of the Act of 1951. 22. In response to the aforesaid assertion, the petitioner submitted that true copies of the election petition was supplied in the Registry of the High Court duly attested by the petitioner and the same was accepted by the office of the High Court. It was asserted that the respondent no.1, in order to delay the proceedings, has unnecessarily raised the issue by interpolating the petition which was supplied to him. It was also asserted that in order to remove any ambiguity and to remove all doubts, the petitioner supplied a certified copy of the election petition immediately upon receipt of the written statement to the -13- respondent no.1 as well as to his counsel and, consequently, the defect, if any, stood cured. The learned counsel for the petitioner submitted that assuming without admitting that there was a defect in the copy so supplied to the respondent no.1, the petition could not be dismissed under Section 86 of the Act of 1951. 23. In order to appreciate the submissions of the learned counsel for the rival parties, it would be appropriate to refer to the provision of Section 81, 83 and 86, which are extracted hereunder:- “81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub- section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty- five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned Candidate at the election and the dates of their election are different, the later of those two dates. Explanation.- In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” -14- 83. Contents of petition.—(1) An election petition— (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 86. Trial of election petitions.—(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation.—An order of the High Court dismissing an election petition under this sub- -15- section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them