Kerala High Court
Benny vs Smt. E.S.Bijimol on 4 July, 2016
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938
El.Pet..No. 6 of 2016 ()
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PETITIONER(S):
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1. BENNY
AGED 46 YEARS, SON OF VARGHESE, RESIDING AT
THURUTHIPALLIYIL HOUSE, MURINJAPUZHA P.O.,
PERUVANTHANAM, IDUKKI DISTRICT, PIN- 685532.
2. FAISAL U. H.
AGED 30 YEARS, SON OF LATE HAMSA,
RESIDING AT URUNIYIL HOUSE, VANDIPERIYAR P.O.,
KARUPPUPALAM, IDUKKI DISTRICT, PIN- 685 533.
BY ADVS.SRI.SABU THOMAS (THUDIAMPLACKAL)
SRI.MATHEWS K.UTHUPPACHAN
SRI.SHARAN SHAHIER
SRI.TERRY V.JAMES
RESPONDENT(S):
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1. SMT. E.S.BIJIMOL
AGED 44 YEARS, W/O. REJI P.J RESIDING AT
PANTHALOOPARAMBIL HOUSE, ELAPPARA P.O. PIN-685 501,
ELAPPARA VILLAGE, PEERMADE TALUK,
IDUKKI DISTRICT, KERALA.
2. ADV. SYRIAC THOMAS
AGED 51 YEARS,
S/O. LATE THOMAS RESIDING AT E.P. 10/560
KLARICKAL HOUSE, ELAPPARA PANAHCYATH,
ELAPPARA P.O. PIN-685 501,
ELAPPARA VILLAGE, PEERMADE TALUK,
IDUKKI DISTRICT, KERALA.
3. SRI. KUMAR
AGED 43 YEARS, S/O. KAMKSHICHETTIYAR
RESIDING AT GANAPATHIVILASAM HOUSE,
KARUVAKKULAM MALI P.O., PIN- 685551.
VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT, KERALA.
4. SRI. BENNY THOMAS,
AGED 47 YEARS, S/O. THOMAS,
RESIDING AT CHIRACKAL HOUSE, ANAKKARA KARA,
ANAKKARA P.O., PIN- 685509.
CHAKKUPALLAM VILLAGE,
UDUMBANCHOLA TALUK, IDUKKI DISTRICT, KERALA.
EP No.6/2016 -2-
5. SRI. C ABDULKHADER
AGED 51 YEARS,
S/O. BEERAN RESIDING AT CHURIANPARAMBU HOUSE,
THALASSERY P.O., THRISSUR DISTRICT. PIN-679 532.
6. SRI JOSEPH M.T.
AGED 56 YEARS, S/O. THOMAS,
RESIDING AT MARAYIKULATH HOUSE,
MATTUKKATTA KARA, AYYAPPANKOVIL P.O.,
AYYAPPAN KOVIL VILLAGE
UDUMBANCHOLA TALUK, IDUKKI DISTRICT, KERALA PIN- 685507.
7. RAMASWAMY
AGED 58 YEARS,
S/O. LATE GOVINDAN RESIDING AT MISTYARD HOUSE,
VANDIPERIYAR P.O., PEERMADE TALUK,
IDUKKI DISTRICT,KERALA PIN- 685 533.
8. ABDUL MAJEED,
AGED 47 YEARS, S/O. HASSAN KHANI,
RESIDING AT KOLLAMPARAMBIL, PUSHPAKANDOM P.O.
IDUKKI DISTRICT,KERALA
PIN- 685552.
R2 BY ADV. SRI.C.S.MANU
R2 BY ADV. SRI.S.K.PREMRAJ
R2 BY ADV. SRI.T.B.SIVAPRASAD
R2 BY ADV. SMT.NEETHU.K.SHAJI
R2 BY ADV. SRI.C.Y.VIJAY KUMAR
R1 BY ADV. SRI.S.SREEKUMAR (SR.)
R1 BY ADV. SRI.BIJU .C. ABRAHAM
R1 BY ADV. SRI.P.MARTIN JOSE
R1 BY ADV. SRI.P.PRIJITH
R1 BY ADV. SRI.THOMAS P.KURUVILLA
R1 BY ADV. SRI.AJAY BEN JOSE
R1 BY ADV. SRI.MANJUNATH MENON
R6 BY ADV. BINU MATHEW
R7 BY ADV. SRI.M.DINESH
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON
03/02/2017, THE COURT ON 06/03/2017 DELIVERED THE FOLLOWING:
EP NO.6/16
APPENDIX
PETITIONERS' WITNESSES
PW1: K.N.RAMADAS
PW2: MANOJ RAJAN
PW3: P.R.AYYAPPAN
PW4: VARGHESE
PW5: C.T.MATHEW
PW6: JOY THOMAS
PW7: DENI JOSEPH
PW8: SHAHUL HAMEED M.
PW9: P.A.RAZEENA
RESPONDENTS' WITNESSES
RW1: RADHAKRISHNAN NAIR K.
RW2: SAJI THOMAS
RW3: PHILUMON JOSEPH
RW4: RAJESH KUMAR K.
PETITIONERS' EXHIBITS
ANNEXURE A:- TRUE COPY OF CHALAN NO.461 DATED 4.7.2016 FOR
REMITTIING SECURITY DEPOSIT.
A1 SERIES: ANNEXURE FOR TABULATING TRENDS/RESULTS IN 092 PEERMADE
ASSEMBLY CONSTITUTENCY DATED 19.5.2016 IN RSPECT OF 14 ROUNDS (14
SHEETS)
RESPONDENTS' EXHIBITS NIL
COURT EXHIBITS
EXT.X1 SERIES: PART II-FORM 17 C RESULT OF COUNTING
EXT.X2: TREND (PINK SLIP) RESULT OF COUNTING.
EXT.X3: NOMINATION PAPER AND AFFIDAVIT OF 8TH RESPONDENT
EXT.X4: FORM 20, FINAL RESULT SHEET
Rp
//TRUE COPY//
PS TO JUDGE
"C.R."
A.M. SHAFFIQUE, J.
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Election Petition No.6 of 2016
==================
Dated this, the 6th day of March, 2017
J U D G M E N T
Petitioners are voters of Peerumedu Assembly Constituency during the Kerala Legislative Assembly elections held on 16th May 2016. They challenge the election of first respondent, inter alia contending that the Returning Officer failed to obtain the signatures of the candidates or their agents in Part II of Form No. 17C (hereinafter referred as 'Form 17C') and further contending that there had been certain mistakes in the tabulation sheets, and the corrections were not properly countersigned. Though a contention was urged alleging that the returning officer should have rejected the nomination since there was non-compliance of the statutory requirement, the said contention was later withdrawn.
2. The short facts involved in the Election Petition reads as under:-
The election was held on 16th May 2016 and the election results were published on 19th May 2016. In respect of Peerumedu Assembly Election Petition No.6/16 -:2:- constituency, the first respondent was declared elected for a margin of 314 votes over the second respondent. Respondents 2 to 7 were the other candidates.
3. The polling in the above constituency was conducted by using Electronic Voting Machines (for short 'EVM'). It is alleged that the Returning Officer has violated Rule 56C of the Conduct of Election Rules, 1961 (hereinafter referred as the '1961 Rules'). Petitioners submit that, after counting from the EVM, the counting supervisor has to duly fill up Form 17C and sign it, thereafter he/she has to get the signature of the candidates or their agents, and it shall be handed over to the Returning Officer. The Returning Officer shall countersign Form 17C, after satisfying himself that the forms have been properly filled up and completed in all respects. If the Returning Officer is not satisfied that Form 17C is not properly prepared, he has the power to reject the votes so counted and order to recount the votes of the said EVM's only. It is contended that if the Returning Officer is satisfied that the forms are properly filled up and complete in all respects, he/she has to compile the final result in Form No.20. It is submitted that rejection or acceptance of votes in a machine has Election Petition No.6/16 -:3:- the same effect of rejection or acceptance of votes in a ballot paper. It is contended that in most of Form 17C, the Returning Officer failed to obtain the signature of the candidates or their agents. It is alleged that 30 numbers of Form 17C had been admitted by the Returning Officer, which are not signed by the candidates or their agents. Petitioners further points out that, in the Annexure for tabulating the results in the 13th round, with reference to polling booth number 179, the total count of votes ought to have been 485, whereas it is recorded as 285 and 204 votes for first respondent has been corrected as 284. It is also contended that there are overwritings in the Annexure which are not certified by the Observer in all the pages. It is contended that in respect of Annexure of tabulating results, in page 1 column 11, 223 has been corrected as 228, in page 5 column 11, 460 has been corrected as 470, in page 10 column 3, 207 has been corrected as 217, in page 11 column 2, 200 has been corrected as 206, in column 6, 130 has been corrected as 230, in page 14 column 8, 71 has been corrected as 91, and 416 has been corrected as 456. On these facts, petitioners sought to declare the election of the first respondent as void and inoperative and to Election Petition No.6/16 -:4:- declare the second respondent having secured the majority of valid votes as the duly elected candidate in the election.
4. Objection has been filed by the first respondent denying the aforesaid contentions. It is stated that the Returning Officer had obtained the signature of all the counting agents or candidates who were present at the time of preparing Form 17C. Even if any such forms are unsigned, it was only on account of the fact that the agents were not available at the counting table. They also denied the fact that the tabulating trends in the 13th round was later corrected. It is contended that as per their knowledge, there was no correction. It is also contended that no materials were produced to substantiate the said allegations.
5. Second respondent filed written statement supporting the petitioners.
6. A preliminary issue regarding maintainability was raised initially and by a separate order dated 20th October, 2016, it was found that the petition was maintainable. Hence other issues were framed on 20th October, 2016. In the meantime the documents were summoned and after verifying the same, the learned counsel for petitioners submitted that the issue Election Petition No.6/16 -:5:- regarding wrongful rejection of nomination of the eighth respondent need not be considered in the facts and circumstances of the case. Accordingly, the said issue has been deleted as per order dated 8.11.2016. The learned counsel for the petitioners filed I.A.No.27 of 2016 for correcting or amending issue No.2 and for framing an additional issue. The issues are framed are as follows:-
"Whether the Returning Officer and counting officials have violated Sub Rule (2) of Rule 56 C of the Conduct of Election Rules, 1961?
Whether in fact, the second respondent received majority of votes and is liable to be declared elected?
Whether the facts of the case would would disclose reasons for setting aside the election of Peerumedu Assembly Constituency in terms of Section 100(1)(d) of the Representation of People Act, 1951?
Relief and costs."
7. In the nature of the issues that are raised, I am of the view that all the issues can be considered together.
8. The evidence consists of oral testimony of PW1 to PW9 Election Petition No.6/16 -:6:- and Ext.A1 series on the side of the petitioners. The documents that were summoned at the instance of the petitioners were marked as Exts.X1 to X4. 1st respondent's evidence consists of the oral testimony of RW1 to RW4.
9. Ext.X1 series are the Form 17C's prepared by the counting supervisor of the respective tables, at the counting hall. PW1 is the counting agent of one of the candidates Sri.M.T.Joseph. He was at table No. 8, during counting. According to him, though he was at the counting table and has signed four counting sheets and he could see and identify his signature in Exts. X1(a) X1(d), X1(l), X1(m) and X1(n), his signature is not seen in Exts. X1(b), X1(c), X1(e), X1(f), X1(g), X1(h), X1(i), X1(j) and X1(k). In the cross-examination, the suggestion was that he was not present before the counting supervisor at the time when the documents were prepared and ready for signature. He also deposed that the counting machine was opened after everyone was satisfied that it was not tampered.
10. PW2 is the counting agent of Adv. Syriac Thomas, another candidate and the second respondent. He was also at table No.8. He also submits that though his signature is seen in Election Petition No.6/16 -:7:- some documents in Ext.X1 series, on certain other documents, his signature is not seen, though he was present at the time of counting. The cross-examination is almost same as that of PW1. Similar evidence has been given by PW3, counting agent of Advocate Syriac Thomas, who was at table No.11, PW4 the counting agent of Sri.M.T.Joseph who was at table No.11, PW5 the counting agent of Adv. Syriac Thomas at table No.12, PW6 the counting agent of a BJP candidate at table No.12 and PW7 the counting agent of an independent candidate who was at table No.12.
11. PW8 is the Chief election agent of Adv. Syriac Thomas. He deposed that he was present at dias. Postal ballots were counted at the dias. The details of each counting table was brought to the dias. He did not verify the counting results, but he has tabulated the counting results. As per his calculation, Adv. Syriac Thomas should win for 14 votes. He asked for re-counting, but postal ballot alone was recounted. During cross-examination, he was asked whether there is any document to show that he was the chief counting agent who alone was permitted to sit at the dias and his answer was that he does not have any documents. He further submits that he does not know how many votes Election Petition No.6/16 -:8:- Adv.Syriac Thomas got, at this point of time. He further says that he has not verified the documents brought to the dias as the counting agents are not permitted to do so. He also deposes that he did not verify from the counting agents regarding the correctness of the documents which were brought to the dias and he asked for recounting. A suggestion was put to him that he had asked only for recounting of the postal ballots which, he denied. He further deposed that he did not complain regarding the refusal to recount all the votes of other persons to any other person.
12. PW9 is the Returning Officer. According to her, the candidates and counting agents entered the counting hall before counting and they were given identity cards. They were permitted to leave the counting hall only after counting of votes. Counting was done in the presence of counting agents. After counting, signature was obtained in Form 17C. It did not come to her notice that the signature of the counting agents were not available in Form 17C. She admits that in some of Form 17C's, signature of the candidates or counting agents are not seen. She states that signatures are obtained from various tables where counting is being done by the counting supervisors. She further submits that Election Petition No.6/16 -:9:- at the time of counting, this fact was not brought to her notice. If it had been brought to the notice, she would have asked them to obtain signature of counting agents. She also deposes that she had the power to obtain signature of the candidates or the Chief election agents. She admits to have prepared the result sheet which is marked with consent as Ext. A1 series. She admits that the observer had certified only in one sheet and in other sheets there is no such certification. She further deposes that no votes have been rejected in Ext.A1 series. She also deposed that all the counting agents may not be present at the time of getting the signature in Form 17C. When she was asked the reason for not obtaining the signature of the candidate or their election agents who are sitting along with her in the dias, her answer was that it had not come to her notice at the relevant time. She admits that postal ballot alone was counted during the re-counting at the instance of Chief Election Agent of Adv.Syriac Thomas. During cross-examination she deposed that the votes in the EVM's are counted by the counting supervisors who are expected to enter the votes in the counting machine in Form 17C. It is for the purpose of ascertaining the votes seen in the counting machine, Election Petition No.6/16 -:10:- Form 17C is prepared. It is the duty of the counting supervisors to get the signature of counting agents in Form 17C. She further deposed that it is possible for them to obtain the signatures of only those counting agents who are present at the relevant time. She also deposes that it might be correct to say that in respect of Form 17C's, which does not contain the signature of counting agents, the counting agents were not present at that time and as a Returning Officer, she does not have the duty to verify as to who were signing Form 17C. Her duty starts when the counting supervisors bring Form 17C to the dias. It is based on Form 17C that Ext A-1 series is prepared. In addition to that, entries are made in the computer also and thereafter the entries are tallied and verified. None objected to the counting at the relevant time and there was no complaint about the fact that signature was not obtained in Form 17C by the counting agents. It is stated that the votes recorded in Form 17C, in the tabulation results, Ext. A-1 and the computer will be tallying. In re-examination, she further states that at the time of starting the counting, the counting agents were present at the counting hall. Whether they had gone out later is not known to her. Since the difference between the Election Petition No.6/16 -:11:- candidates was very less, postal ballots were recounted. But they did not ask for recounting the entire votes.
13. RW1 was the counting supervisor in the counting hall at table No. 8. He had prepared Form 17C's in that table. He identifies his signatures. According to him, Form 17 C is prepared on the basis of total number of votes obtained by each candidate as displayed in the EVM. After preparation, he signs it and it will be given for signature of the counting agents. If they are present their signature will be obtained. The signature of the counting agents are obtained against the name of each candidates as shown in Form 17C. According to him, he had obtained the signature of those counting agents who were available. When a specific question was put as to why the signature of all the counting agents are not seen in the document produced before Court, his answer was that, they may not have been present at that time. He further deposed that Form 17C will be collected by an Officer deputed for that purpose. Once the forms are taken from them, they have no further work. He deposed that monitor was displayed in front of the hall which would display the counting that is being published on a statewide basis. When he Election Petition No.6/16 -:12:- was asked whether he had failed to obtain the signatures of counting agents who were present, his answer was in the negative. During cross-examination, he submits that all the counting agents were asked to come to the counting hall and that they were permitted to leave the counting hall after 5 PM. The counting was over by 1 PM. There were three-four counting agents in the counting hall. He does not know whether all of them were present at the time when voting machine was opened for counting the votes. At the time when the display was shown, agents were available. He does not know whether the agents were available while he was taking down the votes in Form 17C, from the voting machine. He further deposed that at least one person was present at the time when the voting machine was opened for counting votes. It is in his presence that the display in the EVM is shown. He further states that there was no instance of reporting to the returning officer that none of the counting agents were present at the time of counting. When a suggestion was put to him, that he had not obtained signature of counting agents in Ext. X1 series despite the fact that the counting agents were present, his answer was that it was not correct. He was asked Election Petition No.6/16 -:13:- whether he had deliberately failed to obtain the signature of the counting agents for which also his answer was that he did not do so. He further deposed that the document is prepared in duplicate with carbon paper and after such preparation, when verified, the counting agents will not be seen for obtaining their signature. The results will be obtained from the machine by about four minutes and thereafter he had to record the same in the corresponding document. He usually wrote it immediately after the results are seen in the monitor. At that time it may not be possible for him to see whether the agents of the candidates were present or not. After preparing the document and signing the same, he has to hand it over to the agents for signature who sits across the barricade. If they are available, signatures are obtained. When he was asked that he did not get the signatures of counting agents deliberately to help one of the candidates in the election, he denied the same. During re-examination, he was asked whether there is any necessity to inform the returning officer as to whether counting agents were available for putting signature in Form 17C, he said there was no such duty.
14. RW2 was the counting supervisor at table No.11. He Election Petition No.6/16 -:14:- identified the documents prepared by him. He also deposed that he obtained the signature of those counting agents who were present there. In cross-examination he deposed that there were four counting agents and he discontinued after four rounds since he had an injury. After four rounds, another person continued as counting supervisor.
15. RW3 was the counting supervisor at table No.11 after RW2. He also deposed the fact that signatures of those counting agents who are present at the relevant time were obtained in Form 17C. In respect of the forms in which there is no signature of counting agents, according to him counting agents were not present at the relevant time. When he was asked whether he deliberately did not obtain the signature of the counting agents, he denied the same.
16. RW4 was the counting supervisor at table No.12. He identifies the Form 17C which he had signed. He also deposed that signatures of those counting agents who were present at the relevant time were obtained.
17. From the evidence adduced by the parties, it is rather clear that the factual aspects mentioned by the petitioners Election Petition No.6/16 -:15:- that in some of Form 17C's the signature of counting agents is not seen is virtually admitted. The only question is whether it was deliberately done or it is a failure on the part of the Returning Officer to comply with the statutory provision which would affect the result of the election.
18. Heard the learned counsel appearing for the petitioners Sri.Sabu Thomas, learned senior counsel Sri.S.Sreekumar appearing for the 1st respondent, Sri.C.S.Manu, learned counsel appearing for the 2nd respondent and Sri.M.Dinesh, appearing for 7th respondent.
19. The main contention urged by the learned counsel for the petitioners is based on Rule 56C of the 1961 Rules. Rule 56C has been incorporated under Rule 66A with reference to counting of votes where Electronic Voting Machines have been used. Rule 56-C reads as under:-
"56-C. Counting of votes.--(1) After the returning officer is satisfied that a voting machine has in fact not been tampered with, he shall have the votes recorded therein counted by pressing the appropriate button marked "Result" provided in the control unit whereby the total votes polled and votes polled by each candidate shall be displayed in Election Petition No.6/16 -:16:- respect of each such candidate on the display panel provided for the purpose in the unit.
(2) As the votes polled by each candidate are displayed on the control unit, the returning officer shall have,--
(a) the number of such votes recorded separately in respect of each candidate in Part II on Form 17C;
Provided that the test vote recorded, if any, for a candidate, as per item 5 in Part I of Form 17-C, shall be subtracted from the number of votes recorded for such candidate as displaced on the control unit.
(b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and
(c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced."
20. The contention is based on Rule 56C(2)(b) which provides that the Returning Officer shall have Part II of Form 17C completed in all respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present. It is contended that though the counting agents were very much present in the respective counting tables, which is evident from the oral testimony of PW1 to 8, the counting supervisors who were examined as RWs 1 to 4 did not take any Election Petition No.6/16 -:17:- steps to obtain their signatures in most of Form 17C and the Returning Officer did not ensure that the signatures were obtained by them before finalising the results. The contention is that those Form 17C which does not contain signature of the candidates or their counting agents ought to have been discarded by the Returning Officer and if so, the 1st respondent would not have been declared as elected whereas the 2nd respondent would have been declared as elected. The contention is that when the statute prescribes a thing to be done in a particular manner, the Returning Officer was bound to do so, failing which, it would definitely affect the election process. Learned counsel placed reliance upon P.Malai Chami v. M.Andi Ambalam (AIR 1973 SC 2077). This was a case relating to the assembly elections held in Madhurai District. The appellant was declared elected by a majority of 127 votes. The respondent filed an Election Petition questioning the election and also claiming the seat for himself. He made various allegations in his petition which related to infraction of the rules regarding conduct of election. One of the grounds taken up was whether there was improper rejection of ballot paper at the time of counting the votes. That was a case when Election Petition No.6/16 -:18:- recounting was ordered by the learned Judge hearing the election petition. It was held that the very grounds on the basis of which recounting was ordered by the learned Judge show that there was a possibility of mistakes having arisen under any one of the grounds set out in Rule 56 (2) clauses (a) to (h) and it is to have them taken into account and decided correctly that the respondent wanted a recount. It was further held that the improper reception or rejection would include not merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should not have been received and his vote rejected where it should not have been rejected. The improper reception under Section 100 (1)(d)(iii) would include mistakes or wrong judgments made by the Returning Officer while counting and exercising his powers under Rule 56(2) clauses (a) to (h). He also relied upon the judgments in Velayudhan, V v. Kerala State Election Commission and another (ILR 2010 (4) Kerala 77), Chandran Kannikaran v. State of Kerala (2007 (2) KLT 383) and A.C. Jose v. Sivan Pillai and Others (1984 KLT 510), for the proposition that when a person is entrusted under a statute to carry out a function in a Election Petition No.6/16 -:19:- particular manner, there cannot be any deviation and failure to do so clearly amounts to an illegal act. He also placed reliance upon a judgment of the Gauhati High Court in Sri.C.C.Singpho v. Khumral Lungphi and Sri Siraiong Singhpho [(2013) 0 Supreme (Gau) 504]. In that case, the request made was for order for recounting the votes recorded in the Electronic Voting Machines (EVM) and to declare the election of 2nd respondent, the returned candidate as void. The aforesaid order was only an interim order by which an application filed seeking to strike out the pleadings under Order VI Rule 16 read with Order VII Rule 11 was dismissed by the Gauhati High Court. I do not think it necessary for me to go into the preliminary order passed by the Gauhati High Court especially on account of the fact that the issue projected has not been finally decided whereas the High Court was only considering as to whether the pleadings are to be struck off and the petition rejected. The matter under consideration is quite different from the above judgment.
21. On the other hand, learned senior counsel appearing for 1st respondent contended that in terms of Section 100(1)(d), an election can be declared as void if there is non compliance of Election Petition No.6/16 -:20:- the Rules and such non compliance had materially affected the election. He made reference to Sections 46, 47 and 51 of the Representation of People Act, 1951 which reads as under:-
"46. Appointment of polling agents.--A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under section 25 or at the place fixed under sub-section (1) of section 29 for the poll.
47. Appointment of counting agents.--A contesting candidate or his election agent may appoint in the prescribed manner one or more persons, but not exceeding such number as may be prescribed, to be present as his counting agent or agents at the counting of votes, and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer."
"51. Non-attendance of polling or counting agents- Where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done."
22. It is contended that in terms of Section 51, non attendance of any such agent or counting agents at the time and Election Petition No.6/16 -:21:- place appointed for that purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done. It is argued that merely for the reason that the signature of the counting agents were not taken by itself will not invalidate the proceedings of the counting supervisors or the returning officer. Further reference has been made to Rule 66 A and the specific provision under Rule 56-C wherein the language of the statute used is only to obtain the signatures of the candidates or their agents who are present. He also placed reliance on the evidence of RW1 to 4 to show that all the counting supervisors had clearly indicated that they had obtained signatures in Form 17C from the counting agents who were present at the relevant time. He also referred to the deposition of PW9, the returning officer to contend that she had complied with the requirements as far as possible. It is further argued that there is no evidence to indicate that the result of the election was materially affected even if it is assumed that in some of the Form 17C, the signature of the counting agents are not available. Reference is made to judgment in Vashist Narain Sharma v. Dev Chandra (AIR 1954 SC 513) wherein a 3 Judge Bench of the Apex Court held that before an election can be Election Petition No.6/16 -:22:- declared to be wholly void under Section 100 (1)(c), the Tribunal must find that the result of the election has been materially affected. It is contended that there is no pleadings or evidence to substantiate that the result of the election has been materially affected on account of the alleged infirmities. If the petitioners had a case that the results in the EVM or the votes obtained in the EVM by each of the candidates were not correctly recorded in Form 17C, they should have asked for a counting of the votes which are very much available even now. Unless the votes of the disputed EVMs are counted, it may not be possible for any person to infer that the election was materially affected. Another judgment relied upon is Paokai Haokip v. Rishang and Others (AIR 1969 SC 663) wherein it is held that Section 100 (1)(d)(iv) requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. Yet another judgment relied upon is Santosh Yadav v. Narender Singh {(2002) 1 SCC 160}. That was a case in which a contention was taken that the nomination of a candidate was improperly accepted as he was convicted for an offence where the Apex Court held at paras 8 and 9 as under:-
Election Petition No.6/16 -:23:-
"8. It is well settled by a catena of decisions that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of sub- section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub- clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be avoided unless and until it was proved that the result of the election, insofar as it concerns a returned candidate was materially affected.
9. A few decisions were cited at the Bar and it will be useful to make a review thereof. In Vashist Narain Sharma v. Dev Chandra the candidate whose nomination was improperly accepted had secured 1983 votes while the margin of votes between the winning candidate and the next-below candidate was 1972. This Court held that having been called upon to record a finding that "the result of the election has been materially affected", 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 wasted votes would have been so distributed between the contesting candidates as would have brought about the defeat of the returned candidate. The Court emphasized the need of proof by affirmative evidence and Election Petition No.6/16 -:24:- discarded the test of a mere possibility to say that the result could have been different in all probability. The question is one of fact and has to be proved by positive evidence. The Court observed that the improper acceptance of a nomination paper may have, in the result, operated harshly upon the petitioner on account of his failure to adduce the requisite positive evidence but the Court is not concerned with the inconvenience resulting from the operation of the law. The Court termed it "impossible" to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. In Samant N. Balkrishna v. George Fernandez this Court recognized that proof of material effect on the result of the election insofar as a returned candidate is concerned on account of a miscarriage occasioned by improper acceptance of nomination paper at an election may be a simple impossibility. The Judge has to enquire how the election would have gone if the miscarriage would not have happened and that enquiry would result virtually placing the election not in the hands of the constituency but in the hands of the Election Judge. The Court held that neither could the matter be considered on possibility nor was there any room for a reasonable judicial guess. The law requires proof; how far that proof should go or what it should contain is not provided by the legislature; but the insistence on Election Petition No.6/16 -:25:- proof cannot be dispensed with. In Shiv Charan Singh v. Chandra Bhan Singh this Court pointed out that proof of material effect on the result of the election in a case of improper acceptance of nomination paper involved the harsh and difficult burden of proof being discharged by the election petitioner adducing evidence to show the manner in which the wasted ballots would have been distributed amongst the remaining validly nominated candidates and in the absence of positive proof in that regard the election must be allowed to stand and the court should not interfere with the election on speculation and conjectures."
23. It is held that as per the scheme of Section 100(1)(d), the election of the returned candidate shall not be avoided unless it was proved that the result of the election in so far as it concerns a returned candidate was materially affected. Ram Sukh v. Dinesh Aggarwal {(2009) 10 SCC 541} was relied upon in order to contend the general proposition that the success of a candidate who has won at an election should not be lightly interfered and any petition seeking such interference must strictly confirm to the requirements of law. It is further held that, one of the essentials of election law is to safeguard the purity of the election process and, therefore, the Courts must zealously ensure that people do Election Petition No.6/16 -:26:- not get elected by flagrant breaches of law or by indulging in corrupt practices as enumerated in the Act. That was a case in which one of the contention urged was that the Returning officer failed to circulate the attested signature of the election agents to various polling stations and therefore there is non compliance of para 12 of Chapter VII of the Handbook for the Returning Officers. It was held at para 23 as under:-
"23. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from Grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent was circulated 80% of the polling was Election Petition No.6/16 -:27:- over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to the allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling."
24. In Mangani Lal Mandal v. Bishnu Deo Bhandari {(2012) 3 SCC 314} also, the Apex Court held that a mere non compliance or breach of the Constitution or the statutory provisions by itself does not result in invalidating the election of the returned candidate. It has to be further proved that such breach or non observance has resulted in materially affecting the result of the returned candidate. Para 11 is relevant, which reads as under:-
"11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100 Election Petition No.6/16 -:28:- (1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-
observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non- compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in: (1) Jabar Singh v. Genda Lal (2) L.R. Shivaramagowda v. T.M. Chandrashekar and (3) Uma Ballav Rath v.
Maheshwar Mohanty."
25. Learned counsel appearing for other respondents supported the stand taken by the petitioners.
26. Coming to the factual issues, as already mentioned, there is no dispute regarding the fact that in some of the documents especially X1(b), X1(e), X1(f), X1(g), X1(h), X1(i) X1
(s), X1(t), X1(u), X1(v), X1(w), X1(x), X1(y), X1(z), X1(aa), X1(ab), Election Petition No.6/16 -:29:- X1(ae), X1(ag), X1(ah), X1(ai), X1(aj), X1(ak), X1(al), X1(am), X1 (an), X1(ao) and X1(ap), the signatures of the counting agents are not seen. According to the petitioners, counting agents were present at the respective counting table. But their signatures were not obtained by the counting supervisor. 1st respondent contends that the counting supervisor had obtained the signatures of those persons who were actually present at the time of counting. Statute requires the counting supervisors to obtain the signature of the counting agents or candidates in Form 17C if they are present. Evidence shows that in most of the documents, signatures of counting agents have been obtained. When such signatures have been obtained form counting agents of various candidates, there is no reason why the counting supervisor should not get the signature of such persons only in respect of certain Form 17Cs. The evidence adduced by the parties would show that the counting is being done in each table which has a counting supervisor who shows the counting agents that the EVM is not tampered. Thereafter, it is opened. The EVM will show the total number of votes polled in the monitor. Thereafter, the voting machine will show the votes polled against each of the Election Petition No.6/16 -:30:- candidates. This process is confirmed by the polling agent/agents who are sitting beyond a barricade from the counting table. Once they confirm it, the counting supervisor records the respective votes of each candidate in Form 17C and puts his signature. He also obtains the signature of the counting agents or candidates. But as rightly pointed out by the learned counsel for 1st respondent, if the counting agents are not present at the time of preparation of Form 17C, then their signatures could not be obtained. The counting supervisor will turn to the next EVM. The counting takes place in different tables and therefore it is possible that a particular counting agent will have to attend different tables as well. There is no database prepared for the number of persons sitting and watching the process. The counting supervisors in their evidence submits that they had obtained signatures of the counting agents/candidates who were present at the relevant time when the document is prepared. It is true that the process of counting takes only a few minutes and one of the witness says four minutes. But it is possible that immediately after seeing the votes in the counting machine, one counting agent may go to another table as well or he may not be Election Petition No.6/16 -:31:- interested in signing the document. The question is whether any such document prepared by the counting supervisors and not countersigned by the counting agents are to be discarded by the Returning Officer. The Returning Officer is sitting at the dias which is admitted by all parties concerned where the Chief election agent or the candidate may also be sitting. The Returning Officer prepares a tabulation sheet based on Form 17C. In her evidence, RW9, the Returning Officer, submits the fact that there was no signature of the counting agents was not brought to her notice. Rule 56C(2)(b) clearly indicates that signatures of counting agents, election agents or their counting agents "present" are to be obtained in Part II of Form 17C. The legislature has used the words in the Rule 56C(2)(b) "also by the candidates or their election agents or their counting agents present" based on Section 51 of the Act. If none of the counting agents are available, apparently, it is not possible for the counting supervisor to obtain their signature.
27. As far as the Returning Officer is concerned, he/she has to ensure compliance of clause (b) of Rule 56C(2). But when clause (b) indicates that signatures are to be obtained from Election Petition No.6/16 -:32:- candidates, their election agents or counting agents present and the said document is prepared by the counting supervisor, the signatures are to be taken at the time when the documents are prepared and not later. In other words, the signature of the candidates, their election agents or counting agents have to be obtained in Form 17C at the time when Form 17C is prepared and not later. Therefore, once the counting supervisor had handed over Form 17C duly signed by him to the Returning Officer, thereafter the Returning Officer has no obligation to obtain the signature of the candidate or other persons in the said documents. Of course, PWs 1 to 7 have deposed that they were present at the counting table until the counting was over. Whereas RW1 to RW4, counting supervisors depose that they have obtained signatures in Form 17C from the counting agents who were present. According to him, in respect of Form 17C which does not have the signature of counting agents, they may not be present there at the relevant time.
28. On scanning of the evidence of either side, I am inclined to believe the version given by the counting supervisors. No malafides had been attached to them, other than putting a Election Petition No.6/16 -:33:- suggestive question that they have not obtained the signatures of counting agents to help a particular candidate. There is no such contention in the pleading and therefore I am of the view that the counting supervisors or the Returning Officer cannot be stated to have committed any illegality. The judgments relied upon by the learned counsel appearing for the petitioners would be applicable only if the non compliance is deliberately done by the Returning Officer. It is argued that the returning Officer should have rejected the votes in the Form 17C which are not signed by the counting agents. This argument is totally unfounded. The Returning Officer has to ensure that the counting supervisors place all the Form 17C's with the signature of the counting agents if they are present. If there were no counting agents who were present when the documents were prepared and ready for signature, the Returning Officer cannot insist for signing the same at a later point of time. Therefore, there is no basis for the contention that the Returning Officer had violated Rule 56C(2)(b).
29. The learned counsel for 1st respondent has raised a contention that there is no evidence to show that the election results of the 1st respondent had been materially affected on Election Petition No.6/16 -:34:- account of the alleged infirmity. Apparently, the issue raised by the petitioners is that all the counted votes of the candidates in Form 17C which were unsigned by the counting agents had to be rejected. But the fact remains that votes had been counted and once the votes had been available in the counting machines even now, in order to prove that there is wrong computation of the votes, a recounting is necessary. One of the candidates appears to have asked for recounting and the postal ballot alone was recounted. The said candidate did not challenge the election whereas the challenge is made by two voters in the constituency who does not personally know as to what transpired inside the counting hall. Their information is therefore based on information given by counting agents or other candidates who were inside the hall. In the said circumstances what was required to understand whether all the votes had been properly counted in Form 17C was a recounting. Petitioners have not asked for recounting. According to the learned counsel for the petitioners, the respondents ought to have asked for recounting. I do not think so. As held by the Apex Court in the judgments referred above, it is for the petitioners to prove both the ingredients under Section 100(1)(d). Election Petition No.6/16 -:35:- They have to prove that there is non compliance of statutory rule and also that on account of such non compliance, the result of the election of the returned candidate was materially affected. In this case, there is no such proof.
30. Yet another contention urged by the petitioners is based on Ext.A1 series. Certain mistakes have been pointed out and also the fact that some corrections are not been attested by the Observer. As already indicated, even assuming that there were some corrections which were not attested by the Observer, the infirmities pointed out have not materially affected the election in any manner. One infirmity pointed out in Ext.A1 was in Column 11 in regard to Round No.13 wherein the total votes is shown as 285 whereas actually it was 485. But it is relevant to note from other documents especially the total number of votes that the entry was only a mistake and the entire votes had been taken note of for arriving at the total number of votes. Similarly, there are certain overwritings which are not attested by the Observer. But unless it is shown that such overwritings have materially affected the election of the returned candidate, this Court cannot nullify the result of the returned candidate. It is Election Petition No.6/16 -:36:- settled law and as held in the judgments cited above that this Court shall not interfere with the process of election lightly, unless it is shown that there is grave illegality committed in the process of election and it has materially affected the result of the election.
31. In the result, I do not think that the petitioners have succeeded in proving the case set up by them in order to declare the election void.
Election petition is therefore dismissed. In the circumstances, parties shall bear their own costs.
Sd/-
A.M. SHAFFIQUE, JUDGE Rp //True copy// PS to Judge