Manipur High Court
(Through Video Conference) vs Shri Rajkumar Imo Singh & 2 Ors on 20 September, 2021
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Page 1 of 81
JOHN Digitally
signed by
TELE JOHN
TELEN KOM IN THE HIGH COURT OF MANIPUR
N Date: AT IMPHAL
2021.09.21
MC(EP) No.19 of 2020
13:59:45
KOM +05'30'
Ref:- El. Petn. No.5 of 2017
(Through Video Conference)
Dr. Khwairakpam Loken Singh
....... Applicant/s
- Versus -
Shri Rajkumar Imo Singh & 2 Ors.
.... Respondent/s
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant/s : Mr. M. Gunedhor, Advocate For the Respondent/s : Mr. Mr. H.S. Paonam, Sr. Advocate Date of Hearing : 18.08.2021 Judgment & Order : 20.09.2021 JUDGMENT &ORDER (CAV) [1] This application has been filed by the Applicant who is the Election Petitioner of the Election Petition No. 5 of 2017 to call for the documents viz., MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 2 of 81 Serial Nos. 15 to 20 of Schedule II (annexed with M.C. (EP) No. 16 of 2018), from the respective authorities and on receipt of the same, allow the Petitioner to inspect the documents and take certified copies thereof. [2] After hearing both parties, this Court had already disposed of on 15/01/2021 and thereafter, being aggrieved by the Order dated 15/01/2021 of this Court, the Respondent No. 1 preferred a Civil Appeal No. 804 of 2021 arising out of SLP (C) No. 2743 of 2021 and the Hon'ble Apex Court was pleased to remand back the present matter for consideration afresh with following observation on 03/03/2021:
"If the grievance of the election petitioner is limited to procedural irregularities, production of ballot papers may not be necessary. Hence, the High Court ought to have clarified, albeit briefly, as to how the stated documents are relevant and in what context.
Be that as it may, taking overall view of the matter, we deem it appropriate to relegate the parties before the High Court for reconsideration of the request made by the respondents regarding production of documents at Serial Nos. 15 to 20 referred to in paragraph 14 of the impugned Judgment and Order. That question be answered MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 3 of 81 appropriately after analyzing relevant pleadings including the evidence already brought before the Court, in the form of affidavit of evidence.
All contentions available to both sides are left open, to be considered on its own merits and in accordance with law.
The application for production of documents moved by the respondents before the High Court is restored to the file of the High Court to its original number for being considered afresh expeditiously. Order accordingly.
The appeal is disposed of in the above terms".
[3] This application is taken up for re-hearing as per the Order of the Hon'ble Apex Court.
[4] Heard Mr. Gunedhor the learned counsel for the Petitioner and Mr. H.S. Paonam, learned Senior counsel for the Respondent No. 1. [3] Mr. Gunedhor the learned counsel for the petitioner submitted that by an order dated 05/03/2020, the Hon'ble Supreme Court was pleased to dispose of SLP being No. 10804/2019 preferred by the Applicant/Election Petitioner. In the said order dated 05/03/2020, the Hon'ble Apex Court was pleased to direct as "the petitioner to approach the High Court in respect of document(s) at serial Nos. 15 to 20 of Schedule II, which application be decided on its own MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 4 of 81 merits afresh by the High Court document-wise, about the relevancy and necessity to produce the same 2 subject to just exceptions." Accordingly, the Applicant/Election Petitioner filed the present Misc. Case being MC (El. Petn.) No. 19 of 2020 (Ref: Election Petition No. 5 of 2017) praying to call for the documents at Serial Nos. 15 to 20 of Schedule II from the respective authorities and on receipt of the documents allows the Applicant/Election Petitioner to inspect the documents and take certified copies. The documents at Serial Nos. 15 to 20 of Schedule II are as follows:
Sl. No Particulars of Documents From whom to be called from
15. The packets of unused postal Ballot District Election Officer/ papers with counterfoils attached Returning Officer of No. 11-
thereto. Sagolband Legislative Assembly
Constituency, Manipur, Imphal
West, Pin-795001.
16. The packets of used Postal Ballot -do-
papers whether valid, tendered or
rejected
17. The packets of the counterfoils of used -do-
MC(EP) No.19 of 2020
Ref:- El. Petn.No.5 of 2017
Page 5 of 81
Postal Ballot papers
18. The packets of the marked copy of the -do-
electoral roll.
19. The packets containing registers of -do-
voters in Form 17.
20. The packets containing Registers of -do-
voters in Form 17 A under Conduct of
Elections Rules, 1961 in respect to
Postal Ballot.
[4] Now, this Court has to decide the relevancy of the above-mentioned
documents at Sl. Nos. 15 to 20 of Schedule as per the direction of the Hon'ble Apex Court's Order dated 03/03/2021 passed in Civil Appeal No. 804 of 2021 arising out of SLP © No. 2743 of 2021.
[5] Mr. Gunedhor the learned counsel for the Petitioner submitted that this is not a case where the Election Petitioner after losing the election by slender margin making allegations without basis or an attempt to make roving enquiry. Unlike most election petitions, this case is not about corrupt practices. It is just MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 6 of 81 confine to illegal receipt/handling and/or dealing with the Postal Ballots by the concerned election officials in absolute violation and disregard to the law and the mandatory guidelines of EC in this regard. This is a specific case of improper acceptance and rejection of postal ballot papers received through post and facilitation center and non-compliance with the provisions of the rules, orders and guidelines while accepting and rejecting those ballot papers. [6] Mr. Gunedhor the learned counsel for the petitioner submitted that concise and precise statements/averments of the material facts why these documents are necessary and relevant for deciding the election petition at paragraph 31 of the Election Petition. Paragraph 31 of the Election Petition is reproduced as follows:
"(31) That the Petitioner is stating herein the concise statement of the material facts with regard to challenge to the election of the returned candidate, namely, Shri Rajkumar Imo Singh (Respondent No. 1):
(i) A perusal of the Final Result Sheet in Form 20 would show that a total of 298 votes were recorded on Postal Ballot papers and out of which 14 were rejected, the election petitioner received 126 votes, the returned candidate, Respondent No.1 received 155 votes and Respondent Nos. 2 and 3 received 2 and 1 votes respectively.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 7 of 81
(ii) Since the record shows that the 298 votes were polled through Postal Ballot, the same has to be polled in accordance with the provisions of Section 60 of the Act, 1951 read with Section 20 of the Act, 1950 and in compliance with Rules 17 to 27 and Rules 27A to 27K of the Rules, 1961 and it has to be counted in accordance with Rule 54-A of the Rules, 1961. While complying with the aforesaid provisions of law, the poll officials are also required to use the following prescribed Forms:
(a) Form 12 - Letter of intimation to Returning Officer,
(b) Form 12A - Application for Election Duty Certificate,
(c) Form 12B - Election Duty Certificate,
(d) Form 12C - Letter of intimation to Assistant Returning Officer for notified class of electors,
(e) Form 13A - Declaration by Elector,
(f) Form 13B - Cover A,
(g) Form 13C - Cover B (To be used at an election to the House of the People or the Legislative Assembly of a State), MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 8 of 81
(h) Form 13C - Cover B (To be used at an election to the Council of States or to the Legislative Council of a State),
(i) Form 13D - Instructions for the guidance of electors (To be used at an election to the House of the People or the Legislative Assembly of a State),
(j) Form 13D - Instructions for the guidance of electors (To be used at an election to the Council of States or to the Legislative Council of a State),
(k) Form 13E - Instructions for guidance of notified class of electors (To be used at an election to the House of the People /Legislative Assembly).
Besides above the poll officials are also required to comply with the guidelines/instructions/orders/directions mentioned in this Election Petition.
(iii) It is to be noted herein that any elector who is entitled as per the provisions of Section 60 of the Act, 1951 read with Section 20 of the Act, 1950, to vote by Postal Ballot, they are required to send intimation in Form 12 and Form 12C of the Rules, 1961. The electors who are under preventive detention are also required to send intimation that they wish to MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 9 of 81 cast their vote by Postal Ballot. In view of the provisions of law quoted hereinabove, it is mandatory to intimate the Returning Officer in the aforesaid format and in the manner provided therein and 6 only on receipt of the intimation in the prescribed format the Returning Officer shall issue a Postal Ballot paper to the elector concerned.
(iv) Though, the Petitioner sought information from the Returning Officer/District Election Officer to provide the total number of request received by the voters in prescribed form to franchise their right by way of Postal Ballot and also to provide separate detail with regard to request from each of the category of voters and also sought for the certified copies of Form 12, Form 12C as well as intimation received from electors under preventive detention, the same has not been provided to the election petitioner.
(v) The election petitioner discussed the matter in this regard with the Returning Officer and District Election Officer and it has been informed by them that they have not followed the provisions of law strictly with regard to issuing of ballot papers and Postal Ballot papers were issued even on verbal request either by the electors or by the political parties, the contesting candidates, their election agents and other authorized agents. In view of above, the Returning Officer/District Election MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 10 of 81 Officer intimated verbally that they are not in a position to provide the intimations received in the prescribed form. It was further informed that in view of above, they are also not in a position to provide the list of electors who franchised their votes by way of Postal Ballot papers. It was further intimated that in view of above they are also not in a position to give category wise electors entitled to vote by Postal Ballot.
(vi) In view of the provisions of Rule 20 of the Rules, 1961, the voters on election duty may wish to vote by Postal Ballot or they may wish to vote in person. In so far as the voters on election duty wish to vote by Postal Ballot paper, they are required to make request in Form 12 of the Rules, 1961 for providing them Postal Ballot and this category of voters would be included in the electors already referred hereinabove. Besides above there may be voters on election duty who wishes to vote in person and accordingly, they are required to make an application in Form 12A of the Rules, 1961 desiring to vote in person and seeking Election Duty Certificate in Form 12B of the Rules, 1961. The aforesaid procedure is prescribed to facilitate the voters on election duty and once on receipt of an application in Form 12A and issuance of Election Duty Certificate in Form 12B, this category of voters are debarred from casting their votes by MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 11 of 81 Postal Ballot paper and also in person in the respective polling station under which they are registered as electors.
(vii) The Petitioner also sought information from the Returning Officer/District Election Officer to furnish how many voters on election duty made application in Form 12A seeking Election Duty Certificate in Form 12B and also requested to furnish the certified copies of such Form 12A and Form 12B but the said information as well as the certified copies were not provided to the election petitioner.
(viii) The election petitioner discussed the matter personally relating to the voters on election duty who wished their desire to vote in person with the Returning Officer/District Election Officer but it has been informed to the Petitioner that strict compliance of the law with regard to permitting the voters on election duty and issuance of Election Duty Certificate were not strictly complied with and it was further intimated that in view of above, they are not in a position to furnish the number of such voters on election duty as well as the certified copies of Form 12A and Form 12B. It was further intimated to the Petitioner that some of such voters cast their votes in their respective polling stations as well as in the polling station where they are on duty.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 12 of 81
(ix) It is the mandate of law that once the intimation in prescribed forms are received from the voters entitled to franchise their votes by way of Postal Ballot, the Returning Officer is required to send Postal Ballot papers either by certificate of posting and/or by registered post and in case of special voters or voters on election duty, deliver the ballot paper and Forms, or caused them to be delivered, to such voters personally. The Returning Officer is also mandatorily required to send the Postal Ballot paper together with - (a) a declaration in Form 13A; (b) a cover in Form 13B; (c) a large cover addressed to the returning Officer in Form 13C; (d) instructions for the guidance of the elector in Form 13D; and (e) instructions for the guidance of the elector in Form 13E.
(x) In this regard, the Petitioner made written request seeking separately the number of Postal Ballot papers issued to each category of electors entitled to vote by Postal Ballot and also the mode and manner in which the Postal Ballot papers were sent. Further information was sought to provide the number of persons to whom Postal Ballot papers were provided by post as well as personally. The information was also sought as to whether the electoral roll number of the voters concerned were entered in the counterfoil of Postal ballot papers and as to whether the name of the concerned voterswere marked in the marked copy of the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 13 of 81 electoral roll. The information was also sought as to whether the counterfoils as well as the marked copy of such electoral roll were sealed in the mode and manner as prescribed in the Rules, 1961. However, the said information were not provided to the Petitioner by the Returning Officer and/or District Election Officer.
(xi) The Petitioner discussed the matter relating in this regard with the Returning Officer and District Election Officer, but it was intimated by them that since they have not followed the mandate of law scrupulously in this regard, they are not in a position to provide the details sought for.
(xii) The recording of vote of such Postal Ballot papers are required to be made as per the provisions contained in Rule 24 and Rule 27F of the Rules, 1961. A complete procedure is prescribed in the aforesaid provisions of law as well as in the guidelines/instructions/orders/directions issued by the Election Commission of India in this regard. Any non-compliance with the same entails the rejection of the Postal Ballot. In view of the aforesaid provisions, an elector is required to vote through Postal Ballot in accordance with the directions contained in Part I of Form 13D and/or Form 13E, as the case may be and to enclose it in the cover in Form 13B. The elector is also mandatorily required to sign the declaration in Form MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 14 of 81 13A in presence of the officials mentioned in Rule 24(2) of the Rules, 1961. The voter is also required to put the envelope, Form 13B and declaration, Form 13A in the large envelope, Form 13C and to return the envelope, Form 13C to the Returning Officer. It is also the mandate to write the serial number of the ballot paper on the envelope, Form 13B. The non-compliance of the aforesaid procedure entails the rejection of the Postal Ballot.
(xiii) The votes said to have been received by Postal Ballot did not comply with the provisions of Rule 24 and Rule 27F of the Rules, 1961 and the guidelines/instructions/orders/directions issued by the Election Commission of India and as such, the votes which were improperly received and should not have been counted as valid votes.
(xiv) To streamline the casting of votes by the voters on election duty, the Election Commission of India issued guidelines from time to time as indicated in paragraph 27. As per the aforesaid guidelines, for facilitating voters on election duty the issue of requisite Forms, Postal Ballot papers and receipt of the same are organised at the Postal Ballot Facilitation Centre. The entire process is required to be videographed. It is also required to inform the political parties and their candidates either to be personally present or authorize a representative to remain present at the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 15 of 81 Facilitation Centre for observing the entire process. It is also the mandate that the attendance of the representatives of the contesting candidates is obtained in the Register to be maintained for the said purpose. Additional information sheet is required to be prepared for each polling station indicating the name of the elector in whose favour Postal Ballot has been issued and it is signed by Returning Officer/Assistant Returning Officer. As per the guidelines maintenance of Register for issuance of Election Duty Certificate is required. Statement in FORMAT 1, FORMAT 2 are required to be prepared on everyday and a copy is required to be sent to the District Election Officer. It is also the mandate that the political parties and candidates are present at the time of receipt of the Postal Ballot by post and in this regard they were required to be informed so that they can authorize their representative to be present. The Returning Officer is required to prepare FORMAT 3 everyday wherein entry regarding receipt of Postal Ballot papers is required to be made. The Returning Officer is also required to prepare STATEMENT 3 in respect of Postal Ballot and a copy to be sent to Chief Electoral Officer and all the candidates every day. There is also requirement of preparation of Annexure 1 and Annexure 2 as per the guidelines dated 14.05.2014 of the Election Commission of India. MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 16 of 81 There is also requirement of maintenance of Register for the issuance of Election Duty Certificate.
(xv) However, the Returning Officer did not comply with the aforesaid guidelines/instructions/orders/directions in this regard and the process was not videographed. It may be relevant to mention herein that none of the political parties and their candidates were informed to be present to observe the entire process at the Postal Ballot Facilitation Centre and the Returning Officer exercising its power for receipt of intimation, issued and received Postal Ballot papers at Postal Ballot Facilitation Centre from the voters on election duty in hush hush manner and the required mandatory formalities were not gone into and the required documents as referred above were not maintained as required by law.
(xvi) The Returning Officer is also required to maintain Register and other documents as stated hereinabove, but no such Register and/or other documents were maintained to show that the Postal Ballots were received in a fair and transparent manner. Since the election petitioner or the election agent of the election petitioner was not informed regarding their presence at the Postal Ballot Facilitation Centre, the entire exercise MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 17 of 81 of receiving of Postal Ballot from voters on election duty were done behind the back of the election petitioner.
(xvii) Though the Returning Officer was requested to furnish the documents mentioned hereinabove, neither any information nor the certified copies of the documents were furnished. Rather on verbal discussion with the Returning Officer or District Election Centre it was intimated to the Petitioner that they did not follow the procedure as prescribed with regard to the receipt of Postal Ballot from the voters on election duty at the Postal Ballot Facilitation Centre.
(xviii) .....
(xix) That, the counting agent of the petitioner verbally objected for
accepting invalid and illegal postal ballots to the Returning Officer at the time of counting of votes but the protest was not registered and no cognizance was taken over the issue. Such acceptance of invalid and illegal postal ballots are in violation of the guidelines and the rules prescribed from time to time".
[7] Mr. Gunedhor the learned counsel for the petitioner submitted that the basis and reasons why the documents at Serial Nos. 15 to 20 of Schedule II are relevant to the present case are as follows:
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 18 of 81
5.1. Pursuant to the Hon'ble Supreme Court's order dated 05/03/2020 passed in SLP being No. 10804/2019, the Election Petitioner has obtained the certified copy of the Form 12 regarding letter of intimation to Returning Officer to cast the elector's vote by post to the 11-Sagolband Legislative Assembly Constituency election held on 04/03/2017and its respective Received and Issue Register. From the bare perusal of the said Form 12, Received Register and Issue Register obtained from the Returning Officer of the 11-Sagolband Legislative Assembly Constituency, Manipur, the Election Petitioner has identified and discovered many discrepancies and defects such as:
a) According to the said Issue Register, the total number of postal ballots issued to the electors in the Issue Register is not tally with the total number of postal ballot papers received by the Returning Officer. During the counting of the postal ballot papers, it was recorded a total number of 298 postal ballot papers. However, in the Issue Register, the total number of postal ballots issued was 292 only.
b) Many signatures of the applicants/electors in the said Form 12 are not matched with the corresponding signatures in the Issue Register maintain by the Election Officials. Some of the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 19 of 81 applicants/electors have not even signed or missing in the Issue Register.
c) Many of the said Form 12 was sent and received after the closing/expiry date of 25/02/2017.
d) Many of the received dates of the Form 12 were not
mentioned in the Received Register.
e) Many of the postal ballots issued dates were not mentioned in
the Issue Register.
f) There was no videography of the postal balloting process.
The above discrepancies are in directly violation of the Election Commission of India letter No. 52/2014-SDR dated 7th March, 2014 for "Guidelines for issue of Postal Ballot Papers - regarding". In the present case the Election Authorities have specifically violated clause 10(f), (g) and (j) of the said guidelines, which provides as follows:
"(f) Issue of Postal Ballots at the Facilitation Center - Officer-incharge of a Facilitation Center will issue the postal ballot received from the Returning Officer to the voter for whom it is meant after verifying his identity based on EPIC or any other photo identity document, and obtain MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 20 of 81 his signature as a token of having receiving the postal ballot in a register as per the FORMAT given below:-
..........................."
"(g) Time upto which Postal Ballot can be issued: - Provisions regarding intimations by voters on election duty for issue of postal ballot paper, procedure for issue of postal ballot paper and the time for return of postal ballot paper are given in Rules 20, 23 and 27 of the Conduct of the Elections Rules 1961........"
5.2. The DEO/RO also failed to follow the Election Commission of India guidelines No. 52/2014-SDR dated 7th March, 2014 for issue of Postal Ballot Papers. The DEO/RO did not follow the following clauses of the said guidelines: "i) Clause 10 (a) which states "Information to Political Parties - All Recognized Political Parties will be informed in writing the schedule of facilitation of postal balloting at the Facilitation Centers. They shall be allowed to send their representatives to witness the facilitation process at the Facilitation centers."
ii) Clause 10(k) which states that "Videography of the postal balloting process-The entire process of postal balloting will be videographed." MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 21 of 81
iii) Clause 15(b) which states that "Political Parties and Candidates to be present at the time of receipt of postal ballots by post - All recognized political parties and contesting candidates will be informed in writing that they or their representatives may remain present at the time of delivery of postal ballots by the post office. A pass should be issued to the nominated postal department employee to enter the counting center on counting day for this purpose."
5.3. It has been submitted that according to the ECI guidelines/instruction letter 470/INST/2014-EPS dated 30/04/2014 addressed to the Chief Electoral Officers of all States and Union Territories, with the subject: Counting of Votes-Regarding, the Election Commission specifically instructed to observer scrupulously as follows:
"3.15 In case the victory margin is less than the total number of postal ballots received then there should be a mandatory reverification of all postal ballots. In the presence of Observer and the RO all the postal ballots rejected as invalid as well as the postal votes counted in favour of each and every candidate shall once again be verified and tallied. The observer and the RO shall record the findings of re-verification and satisfy themselves MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 22 of 81 before finalizing the result. The entire proceeding should be videographed without compromising the secrecy of ballot and the videocassette/CD should be sealed in a separate envelope for future reference".
[8] Mr. Gunedhor the learned counsel for the petitioner submitted that in the present case, 298 votes were recorded by Postal Ballots and 14 Postal Ballots were rejected. But, the victory margin is only by 19 votes based on the Postal Ballots count, which is less than the total postal ballots recorded. As such, re- verification and recounting of all the postal ballot papers are mandatory as per the above guidelines. However, in the present case, the Returning Officer has failed to follow the mandate of the election commission as there was no re- verification and recounting of the postal ballot papers and there was no videography of the proceeding in respect of the 11-Sagolband Legislative Assembly Constituency, Manipur. Since there was a clear violation and non- compliance of the mandatory re-verification and recounting of the postal ballot papers, no videography of the postal ballot proceeding, failure to inform and give opportunity to the Election Petitioner's counting agents about the rejection of the 14 postal ballot papers as per Rules 56(3) of the Conduct of Election Rules, 1961, the apprehension of improper reception/rejection of postal ballot papers is more significant.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 23 of 81 [9] Mr. Gunedhor the learned counsel for the petitioner submitted that it is well settled that the instructions/guidelines contained in the Handbook for Returning Officers are issued by the Election Commission in exercise of its statutory functions and, are, therefore, binding on the Returning Officers. The Returning Officers are obliged to follow them in letter and spirit. Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another, (2014) 5 SCC 312. In the present case, it is clear from the records such as Form 12 and its corresponding Received and Issue Register, the Returning Officer has not followed the instructions/guidelines of the Election Commission and the Prescribed law in the matter of issuing postal ballot to electors especially to the poll personnel. The statutory authorities are bound to act strictly in consonance with the Act, Rules, and procedure prescribed therein for a particular manner and to act in a fair and transparent manner. Here, the Election authorities has acted in gross violation of the procedures laid down in the statute, instruction/guideline and invented their own procedure.
[10] Mr. Gunedhor the learned counsel for the petitioner submitted that there is a genuine allegation and apprehension of illegal, improper reception, refusal or rejection of postal ballot papers and non-compliance with the provisions the Act, 1951 and the rules and orders made therein including the guidelines/instruction/orders/directions by the Election Commission of India. In MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 24 of 81 other words, 298 postal ballot papers were not in order as per statutory requirement given in the handbook/guidelines/instructions as well as the circulars issued by Election Commission of India from time to time and the statutory requirement given in the handbook/guidelines/instructions issued by the Election Commission of India and the statutory requirement of verification of receiving postal ballot papers in the register has not been followed. Therefore, for the purpose of resolving the controversy involved in the present Election Petition, it is absolutely essential to obtain the following documents:
"The packets of used Postal Ballot papers whether valid, tendered or rejected" are necessary because from the record it also quite clear that Officer Returning Officer has violated the mandate of the election commission as there was no re-verification and recounting of the postal ballot papers and there was no videography of the proceeding even though "the victory margin is less than the total number of postal ballots received".
"The packets of the counterfoils of used Postal Ballot papers" is required to be compared with the requirement of Form 12.
"The packets of the marked copy of the electoral roll" in respect of postal ballot papers is relevant in solving the discrepancies in the procedure by a person/elector who wants to cast his/her vote in Form 12 and those who actually MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 25 of 81 casted their votes through postal ballot papers. In the Received Register and Issue Register maintained by the Election Authorities, there are glaring defects in the signatures of the electors, non-mentioning of received/issue dates and many of the column are blanks which are required to be filled up as per the guidelines. Further, the number of postal ballot papers issued to the electors is not tallied with the number of postal ballot papers received at the time of counting.
Further, "the packets of the declarations by electors and the attestation of their signatures in respect to Postal Ballot (Form 13A)" are also required to be produced and inspected since many of the signatures of the electors in the Issue Register are not matched with the signatures of the applicants in the Form 12 and if the attestations are done in accordance with the law. The apprehension and controversy can only be put to an end if the "declarations by the electors and the attestation of their signatures in respect to postal ballot" are called for from the concerned authority. Declaration in the form of Form 13A is necessary to identify the voter namely, from which he comes from, his number and all other particulars of the voters including voter's signature. As such, the scrutiny of the declarations Form 13A are required to ascertain if their signatures are matched with the "Registers of voters in Form 17 A"and Form 12 or if the reception and rejection of the ballot papers were in accordance with the rules and guidelines.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 26 of 81 [11] Per contra, Mr. H.S. Paonam, learned Senior Counsel for the Respondent No. 1 contended that during the pendency of Election Petition No. 5 of 2017, the Election Petitioner has filed 2 (two) Misc. application cases being M.C. (El. Pet.) No. 15 of 2018 and M.C. (El. Pet.) No. 16 of 2018 before the Court.
a) In M.C. (El. Pet.) No. 15 of 2018, the Applicant prayed for the following reliefs :
"In the premises aforesaid, it is therefore, prayed that your Lordships may be pleased to grant leave to the Election Petitioner to produce the original of the documents mentioned at Paragraph 3 at the time of hearing and/or pass such other/orders or direction as your Lordships may deem fit and proper.
And for this act of kindness, the applicant as in duty bound shall ever pray."
b) In (El. Pet.) No. 16 of 2018, the prayed for the following reliefs:
"In the premises aforesaid it is therefore, prayed that your Lordships may be pleased to call for the documents mentioned in Schedule annexed with this application from the respective MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 27 of 81 authorities indicated in the Schedule and on receipt of the documents allow the petitioner to inspect the documents and take certified copies thereof and/or pass such other/orders or direction as your Lordships may deem fit and proper.
And for this act of kindness, the applicant as in duty bound shall ever pray."
[12] Mr. H.S. Paonam, learned Senior Counsel for the Respondent No. 1 further contended that MC (Elect) No. 16 of 2018 was resisted by the Respondent No. 1 herein contending inter alia that the same is not sustainable as the applicant is seeking to have a roving and fishing enquiry without having pleaded and without specific assertion or allegation in the main election petition inasmuch as granting the relief would amount to amendment of the election petition which is not permissible in view of mandate of Section 86 of the R.P. Act, [13] The Learned senior Counsel for the Respondent No. 1 further contended that by a judgment and order dated 14-1-2019, this Court was pleased to dismiss the MC (Ele.Petn.) No. 16 of 2018 by observing at Para No. 9 as under:-
"(9) Having held as above, the short question is as to whether all the documents will be required to be called for and a decision thereof will MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 28 of 81 depend upon the material facts pleaded in the election petition. There are two kinds of documents-one, mentioned in Schedule-I and the other, mentioned in Schedule-I are concerned, they are either guidelines or instructions issued by the Election Commission of India, from time to time, in relation to the election and are in its possession and moreover, since the existence of these documents is not denied by the respondent No. 1, the same are not required to be called for. In other words, these documents are official documents. If need arises during the course of the trial, a responsible officer working in the Election Commission of India. The Schedule-II consists of many documents, some of which are instructions which will fall i9n the same line as that of the documents in Schedule-I. As regards the remaining documents, the concise statement of material facts which is found in para 31 of the election petition, is required to be gone into. Admittedly, a total of 298 votes are recorded on postal ballot papers, out of which the applicant petitioner received 126 votes while the returned candidate received 155 votes. The concise statement of material facts, in short, is that the said 298 votes are to be polled in accordance with the provisions of the RP Act, 1951 and rules made there under and while complying with the law, the poll officials are required to use various prescribed forms. The grounds on which the election petition has been MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 29 of 81 filed, are that there has been improper receipt, refusal and reflection of votes by means of postal ballot papers and that there has been non-
compliance with the provisions of the RP Act, 1951 and the rules including the guidelines/instructions. However, so far as the first ground as regards the improper receipt, refusal and rejection is concerned, the applicant petitioner has failed to furnish the details of the persons whose votes have been improperly received or refused or rejected, which fact is evident from the averments made by him in para 31 (iv) of the petition that after the result of the election being declared, he moved an application seeking information as regards the total number of requests received from the voters in prescribed form to franchise their rights by way of postal ballot and details thereof, certified copies of Form 12 and 12-C and intimation received from elector under preventive detention. When and where did they happen, is also not stated in the election petition. Moreover, there is no averment made in para 31 of the petition that the applicant petitioner or his agents did raise any objection while counting the postal ballot papers except stating that his election agent discussed the matter with the Returning Officer on 13-03-2017. In this regard, the observations made by the Hon'ble Supreme Court in Ram Sewak Yadav case (supra) ad in particular, para 9 thereof, are relevant and important and are to be kept in MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 30 of 81 view to properly appreciate the case of the applicant/petitioner which is not denied, are also not required to be called for allowing the instant application, at this stage, may amount to granting opportunity to the applicant/petitioner to roving and fishing evidence without making any specific averment in respect thereof in the petition. It may be noted that on the basis of their pleadings, six issues have already been framed to which none of the parties has any objection and therefore, the trial of the election petition can go on the basis of the materials placed on record." [14] Thereafter, against the said judgment and order passed in MC (El.Petn.) No. 16 of 2018, the applicant had preferred SLP(C) No. 10804, which was disposed of vide order dated 5-3-2020, by the Hon'ble Supreme Court of India in the said SLP (C) No. 10804 of 2019 which is reproduced herein below:
"Learned counsel for the Petitioner contends that as regards the document(s) referred to in Schedule-I, the same being public document(s) have been made available to the petitioner which the petitioner may consider of placing on record at the appropriate time, including certified copies thereof, as and when available to the petitioner. MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 31 of 81
Similarly, document(s) in Schedule II, except referred to in serial Nos. 15 to 20 of that Schedule, the petitioner would be in a position to produce the same being public document(s).
In so far as the document(s) at Serial Nos. 15 to 20 in Schedule-II, copy of the same can be obtained by the petitioner only if the Court so orders in terms of the relevant Rules 92 and 93 of the Conduct of Election Rules, 1961, as the case may be.
That request can be considered by the court subject to relevancy of the document(s) in the context of averments made in the election petition and just exceptions as may be available in law to the opposite party.
We accede to the request of the petitioner to approach the High Court in respect of document(s) at serial Nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by the high Court document-wise, about the relevancy and necessity to produce the same subject to just exceptions.
The petitioner is at liberty to apply to the concerned authorities for obtaining public document(s) (other than mentioned in Serial Nos. 15 to 20 of Schedule-II) as per the rules applicable in that regard." MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 32 of 81
[15] Mr. H.S. Paonam, learned Senior Counsel for the Respondent No. 1 submitted that a clear reading of the aforesaid order simply makes it very clear that so far as documents other than Sl. Nos. 15 to 20, this Court has simply given liberty to apply before the concerned authority who has to consider for providing the documents asked for, in terms of the RP Act & Rules only, but, this Court by the said order, has not given either a liberty or direction for relying or incorporating the same in the election petition or otherwise. Further, by the said order, this Court has directed to consider in terms of the averments and just exception in law as available to the parties as regards to documents at Sl. Nos. 15 to 20 of Schedule II.
[16] In the meanwhile, MC (Elect. Petn.) No. 15 of 2018 was also dismissed by this Court vide order dated 15-4-2019 and no SLP was filed by the applicant against the said order.
[17] It is further contended that the applicant/Election petitioner during the pendency of the above SLP and in pursuance of order of this Court have filed list of documents which he would rely during the Election trial upon finding that documents filed by the applicant are the one which/had already been rejected by this Court in MC (El. Petn.) No. 15 of 2018 and MC (El. Petn.) No. 16 of 2018 respectively, Respondent No. 1 herein filed MC(Elect. Petn.) No. 27 of 2019, objecting to the list of documents being proposed for reliance by the applicant on MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 33 of 81 the ground that the said documents having rejected by this Court cannot be relied upon in much as the portion of his Examination-In-Chief in the form of affidavit which was filed as early as on 16-12-2019 relying on the same documents.
[18] Only after filing the said MC (Elect) No. 27 of 2019 by the Respondent No.1, the applicant having realised about impermissibility of relying on the documents filed by him, have preferred MC(Review Petition) No. 1 of 2019 before this Court with a prayer for condoning the delay of 215 days in filing the said MC (Review) No. 1 of 2019 against the order dated 15-4-219 passed in MC(Elect) No. 15 of 2018.
[19] In pursuance of the order dated 5-3-2020 passed in SLP(C) No. 10804 of 2019 by the Hon'ble Supreme Court, applicant filed the MC(El. Petn.) No. 19 of 2020, Respondent No. 1 herein also filed his objection pointing out that the said MC(El. Petn.) No. 19 of 2020 was not in terms of the order of the Hon'ble Supreme Court of India. Further, it is stated that Para 31 of the Election Petition is merely a narration of condition of the Election Commission's guidelines and irregularities when they are not complied with, however without asserting anywhere how Respondent No. 1 or officials of Election Commission of India have violated any of those condition. Therefore, relief prayed for in the MC (El. Petn.) No. 19 of 2020 if granted would amount to facilitating the election MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 34 of 81 petitioner to have a fishing and roving inquiry and the same being impermissible under the law and hence, the learned senior counsel for Respondent No.1 prayed that the MC (El. Petn.) No. 19 of 2020 may be rejected. [20] On 18-12-2020, this Court was pleased to hear the MC (El. Petn) No. 19 of 2020 for final disposal and therefore, by a judgment and order dated 15-1-2021 was pleased to allow MC (El. Petn) No. 19 of 2020 by observing as under:-
"[22] The document to be called for are packets of unused postal ballot papers whether valid, tendered or rejected; packets of the counterfoils of used postal ballot papers; packets of the marked copy of the electoral roll; packets containing registers of voters in Form 17 and packets of the declarations by the electors and the attestation of their signatures in respect of postal ballot. Since the aforesaid documents are relevant to resolve the dispute involved in the main election petition, those documents are necessarily to be marked as exhibits in this case.
Therefore, this Court is of the firm view that the examination of the documents referred to by the petitioner are relevant and/or necessary to substantiate the allegations levelled by the petitioner in his election petition, and it is not the case of the respondent that these documents are MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 35 of 81 public documents which we readily available. Moreover, no prejudice would be caused of the documents at Serial Nos. 15 to 20 of Schedule II are called for in this case and furnished certified copies of the same to the petitioner in order to produce the same in the main election. On the other hand, this court feels that if those documents were not produced and /or exhibit in the main election petition, irreparable loss and hardship would be caused to the petitioner. That apart, the instant petition has filed by the petitioner in terms of the order of the Hon'ble Apex Court dated 5-3-2020. Therefore, in the interest of justice and proper adjudication of the controversy involved in the election petition, the present petition is liable to be allowed.
[23] Accordingly, the petition is allowed and the documents at Serial Nos. 15 to 20 of Schedule II Annexed with MC (EP) No. 16 of 2018 are directed to be called far from the respective authorities by petitioner, for which the petitioner has to take necessary batta and pay fees/charges. On the production of the documents by the authorities concerned, the petitioner is permitted to inspect the same and apply for certified copies of the documents and then produce the same in the main election petition for marking purpose."
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 36 of 81
[21] The learned Senior Counsel for the Respondent No. 1 submitted that the Respondent No. 1 having been aggrieved by the Judgment and order dated 15-1-2021 allowing the MC (El. Petn) No. 19 of 2020 have preferred SLP(C) No. 2743 of 2021 before the Hon'ble Supreme Court of India contending inter alia that the conclusion arrived by this Hon'ble Court and reason in allowing the MC (El. Petn.) No. 19 of 2020 is against the established principal of law as regards to the issue raised in the MC (El. Petn.) No. 19 of 2020. [22] On 3-3-2021, Hon'ble Supreme Court of India was pleased to grant leave and disposed the Civil Appeal No. 804 of 2021 (arising out of SLP (C) No. 2743 of 2021) relegating to this Court to hear the MC (El. Petn.) No. 19 of 2020 afresh having regard to the observation made in the order. In the said order the Hon'ble was pleased to observe as under-
"This appeal takes exception to the judgment and order dated 15-01-2021 passed by the High Court of Manipur at Imphal in MC (El. Petn) no. 19 of 2020, whereby the High Court has directed production of documents referred to in the chart of documents found in paragraph 14 of the impugned at a serial nos. 15 to 20.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 37 of 81 The matter has reached this court on the earlier occasion at the instance of the respondents which was disposed of being SLP(C) No. 10804 of 2019 which came to be disposed on 05-03-2020.
While dealing with the similar request n respect of documents at serial Nos. 15 to 20, the court noted:
".....Similarly, document(s) in Schedule II, except referred to in serial Nos. 15 to 20 of that Schedule, the petitioner would be in a position to produce the same being public document(s).
In so far as the document(s) at Serial Nos. 15 to 20 in Schedule-II, copy of the same can be obtained by the petitioner only if the Court so orders in terms of the relevant Rules 92 and 93 of the Conduct of Election Rules, 1961, as the case may be.
That request can be considered by the court subject to relevancy of the document(s) in the context of averment made in the election petition and just exceptions as may be available in law to the opposite party.
We accede to the request of the petitioner to approach the High Court in respect of document(s) at Serial nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by the High Court MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 38 of 81 document-wise, about the relevancy and necessity to produce the same subject to just exceptions.
The petition is at liberty to apply to the concerned authorities for obtaining public document(s) (other than mentioned in serial Nos. 15 to 20 of Schedule-II) as per the rules applicable in that regard...."
After this order, the respondents once again requested the High Court for direction to order production of documents at serial nos. 15 to 20. That request has been favourably answered by the High Court vide impugned judgment on the observation that the stated documents and relevant to resolve the disputes involved in the main election petition. No specific analysis as the pleading and the evidence already produced by the parties has been adverted to, which can be the basis for answering the matter in issue. The relevancy of the document must be judged essentially in reference to the election in election petition and oral evidence produced by the parties during the trial.
If the grievance of the election petitioner is confined to procedural irregularities production of valid paper may not be necessary at all.
Be that as it may, taking overall view of the matter, we relegate the parties before the High Court for reconsideration of the request made by MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 39 of 81 the respondents of production of documents at Serial nos. 15 to 20 referred to in paragraph 14 of the impugned judgment. That question be answered appropriately after analysing relevant pleadings and the evident already brought the court, including in the form of affidavit of evidence.
All contentions available to both the sides are left open, to be considered on its own merits and in accordance with law.
The applications for production of documents moved by the respondents before the High Court is restored to the file of the High Court on its original number being considered afresh.
Ordered accordingly.
The appeal is disposed of in the above terms. Pleading applications, if any, stand disposed of ....."
[23] It is also contended that, the applicant/Election petitioner instead of the proceeding with the hearing of the MC (El. Petn.) No. 19 of 2020 which is restored in the file, have filed another Examination-In-Chief in the form of affidavit without disclosing either about the filing of Examination-In-Chief earlier or without seeking leave of this Court for withdrawal of his earlier Examination-In-Chief already filed, however, without providing due exception as available under the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 40 of 81 law to the present Respondent No. 1 for the purpose of hearing of MC (El. Petn.) No.19 of 2020. Prompted by such impermissible way of imposition for introducing new materials for reliance, present Respondent No. 1 has filed an objection on 9- 4-2021. In the said objection, in no unambiguous terms, it has been contended that in the absence of clear pleading and materials as to how the condition of ECI guidelines has been violated by the Respondent No. 1 or ECI official, relief prayed for dismissal of the same. Further, it was submitted that Para No. 31 of the Election Petition No. 5 of 2017 are merely conditions provided for in the ECI guidelines without any assertions as to how any of them has been violated by the respondent and the same being merely statement, are at the most, merely procedural irregularities which are not sufficient for consideration for granting the relief asked for under the law. Further, written argument submitted by the applicant, if peruse between the line, are not on the basis pleading made in the MC (El. Petn) No. 19 of 2020 but wholly outside the said MC (El. Petn) No. 19 of 2020 and thus, this being a case outside the pleading in an Election Petition, is liable to be rejected.
[24] The learned Senior counsel further contended that a clear reading of Para No. 31 of the Election Petition would amply demonstrate that it is only vague, fictitious and baseless allegation without any clear assertion as regards violation of any of the condition/provision of the ECI guidelines and election rule MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 41 of 81 by the respondent No. 1 or ECI authority and in which manner for establishing the allegation of improper reception, refusal and rejection of the votes by means of postal ballots and particulars as required under the law is lacking. Since, consideration of the relief prayed for in the MC (El. Petn) No. 19 of 2020 has to be just on the basis of relevancy of documents in the context of the averments and statements made in the Election petition as well as in the MC (El. Petn) No. 19 of 2020 as per the order of the Hon'ble Supreme Court of India. No material facts and specific pleadings as required under the law having not been stated, Misc. Application is liable to be dismissed. Relief prayed for in the Misc. case having regard to the submission made herein above, if allowed would have the effect of allowing the applicant to have a roving and fishing enquiry which is against the mandate of law. Respondent No. 1 may also highlight herein that the Hon'ble Supreme Court in all the aforesaid SLPs and Civil Appeals never have allowed introduction of new facts and new documents after expiry of the limitation which is specifically barred by Section 81 of the Representation of Peoples Act, 1951 and therefore, submission made on behalf of the applicant/petitioner by referring to new facts and documents brought on the basis unacceptable second Examination-in-Chief on oath without seeking leave of this Court is liable to be rejected.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 42 of 81 [25] In support, Mr. H.S. Paonam, learned senior counsel replied on the decisions of the Hon'ble Apex Court in the following cases:
(i) Ram Sevak Yadav Vs Hussain Kamal Kidwai &Ors reported in AIR 1964 SC1249 "10. Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali and others in support of the plea that mere absence of particulars will nor furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In Bhim Sen's case a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency. The principal ground in support of the petition was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of s. 63(1) of the Representation of the Peoples Act, and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in contravention of S. 63 the petitioner believed that the successful candidate "could receive many void MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 43 of 81 votes." The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and' nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do not think that Bhim Sen's case(1) lays down any general principle that a party is entitled without making allegations of material facts in support of his MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 44 of 81 plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise, allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend' upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sen's case(1) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of S. 63 (1 ) of the Act by the Returning Officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 45 of 81 were 37 votes which were void. Thereafter the applicant applied to substitute the words " alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made: the propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made.
..............................."
(ii) Basanagauda Vs Dr. S.B. Amarkhed reported in (1992) 2SCC 612 MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 46 of 81 "7. The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the court shall think right that the production of the documents are necessary to decide the matter in question. The court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition. At the same time the election petition - proceedings being of quasi-criminal nature the allegations in the petition must be pleaded clearly and with full particulars, especially the grounds of corrupt practices cannot be permitted to be tried on the basis of deficient pleadings or by filing applications for production of record to fish out grounds as material which is not part of the pleadings. In any case secrecy of the ballot boxes cannot be tinkered unless an iron-cast case is made out in the election MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 47 of 81 petition. Section 135A which was brought on statute with effect from March 15, 1989 under Amendment Act 1 of 1989 prescribes booth capturing to be an offence and the person committing it shall be punishable with imprisonment for a term which shall not be less than six months and which may be extended to a maximum of two years and fine. Where such offence was committed by a person in the service of the Govt., he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and fine. Booth capturing has been explained in its explanation thus :
"For the purpose of this section "booth capturing" includes, among other things, all or any or the following activities, namely:-
(a) Seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of election;
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 48 of 81 supporters to exercise their right to vote and prevent others from voting;
(c) threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
(d) seizure of a place for counting of votes by any person or persons making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities of aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate."
8. This is an inclusive explanation and seizure of polling station, taking possession thereof and making polling authorities to surrender the ballot papers or voting machines and doing of any other act which affects the orderly conducting of election etc. have been enumerated. They are only explanatory and inclusive but not exhaustive. The Parliament used words of width with generality to MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 49 of 81 lug in or encompass diverse acts or omissions innovated with ingenuity to escape from clutches of law. It is common knowledge that in the recent past there have been various complaints regarding booth-capturing. The tendency to over- awe the weaker section of the society and to physically take over the polling booths meant for them is on the increase. Booth-capturing wholly negates the election process and subverts the democratic set up which is the basic features of our constitution. During the post independent era ten parliamentary elections have entrenched democratic polity in this country which cannot be permitted to be eroded by showing laxity in the matter of booth-capturing which has now been made an offence under S.135 A of the Act. The allegation of booth capturing and rigging, if proved, is a corrupt practice under s.100(1)(b) and materially affects the result of the election under cl.(1)(d) and also is a disqualification. Therefore, the allegation must be specifically pleaded giving material particulars. The nature and various acts of capturing booths were enumerated in the explanation to s.135A. As stated, they are only illustrative but not exhaustive. Diverse ways would be innovated to capture booths and rigging. The court while exercising its power under Order XI Rule 14 and Order XVI Rule 6 MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 50 of 81 C.P.C. would also have to keep in view the rigour of sub-Rule (1) of Rule 93 of the Conduct of the Election Rules 1961 for short 'the Rules' which provides production and inspection of election papers thus:
"93(1). Production and Inspection of Election Papers while in the custody of the district election officer or, as the case may be, the returning officer
(a) the packets of the unused ballot papers with counterfoil attached thereto;
(b) the packets of used ballot papers whether valid, tendered on rejected;
(c) the packets of the counterfoils of used ballot papers;
(d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or sub-
section (2) of s.152; and
(e) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 51 of 81 be inspected by, or produced before, any person or authority except under the order of a competent court. (2) Subject to such conditions and to the payment of such fee as the Election Commission may direct,
(a) all other papers relating to the election shall be open to public inspection; and
(b) copies thereof shall on application be furnished. (3) copies of the returns by the returning officer forwarded under rule 64, or as the case may be under clause (b) or sub-rule (1) of rule 84 shall be furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment, of a fee of two rupees for each copy."
9. This Court while considering the effect of Rule 93 held in Hari Singh v. Hira Singh &Ors. (supra), that perusal of this Rule clearly shows that the Legislature intended to make clear distinction between one set of documents and another. So far as counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 52 of 81 court was fully satisfied that a cast iron case was made out for the same; whereas documents mentioned in clauses (a) and (d) of sub- rule (2) of Rule 93 could be liberally allowed to be inspected. This was also the view in Ram Sewak Yadav v. Hussain Kamil Kidwal&Ors, [1964] 6 SCR 238. Thus to maintain the secrecy of ballot papers unless adequate material facts are on record which alone would afford adequate basis to exercise the discretion by the court; the packets or the used ballot papers with counterfoils attached there to or the packets of used ballot papers whether valid, tendered or rejected cannot be opened. Equally the packets of declarations by electors and the authorisation of their signatures shall not be opened unless ordered by the court in that behalf. The court shall not permit a roving enquiry to enable the defeated candidate/election petitioner to have access thereto to fish out the grounds. The High Court, would therefore, be circumspect to order summoning that records covered under rule 93(1). To effectuate the objects of S.135A of the Act it may be open to the rule making authority to have fresh look into the mandatory language of Rule 93(1), so as to bring it in conformity with s.135A of the Act. MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 53 of 81
10. The High Court in the impugned order has held that though no factual foundation has been laid in the election petition, but since there are allegations of booth-capturing and rigging in various paragraphs of the petition it is necessary to summon and examine the documents asked for by the respondent. We do not agree with the High Court. The examination of marked ballot papers and other used ballot papers can in no way substantiate the allegations of booth- capturing. Mr. Madhva Reddy, learned counsel for the respondent, contended that the marked ballot papers are required to prove that votes of dead persons and those who had left the constituency were polled. Neither the names of persons nor any other details are given in the election petition. Only bare allegations are made that votes of dead persons and those who had left the constituency had been cast. We are, therefore, of the view that the High Court grossly erred in permitting the summoning of items (a) to
(c) and (e) of para I of the application. We set aside the High Court order to that extent. As regards items (d), (f) and (g) of para I and paras II and III of the application are concerned, we are not inclined to interfere with the order to the High Court. The appeal is partly allowed in the above terms with no order as to costs.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 54 of 81
(iii) Dharlipakar vs Rajiv Gandhi reported in AIR 1987 SC 1577 (para 14) "14. Before we consider various paragraphs of the election petition to determine the correctness of the High Court order we think it necessary to bear in mind the nature of the right to elect, the right to be elected and the right to dispute election and the trial of the election petition. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951. There is no fundamental or common law right in these mat- ters. This is well-settled by catena of decisions of this Court in N.P. Ponnuswami v. Returning Officer, [1952] 1 SCR 2 18; Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 and JoytiBasu v. Debi Ghosal, [1982] 3 SCR 318. These decisions have settled the legal position that outside the statutory provisions there is no right to dispute an election. The Representation of the People Act is a complete and self contained code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the extent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 55 of 81 would show that an election can be questioned under the statute as provided by Section80 on the grounds as contained in Section 100 of the Act. Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under Section 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the re- turned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner." (emphasis supplied) MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 56 of 81
(iv) Jitu Patnaik vs SanaqtonMohakud reported in (2012) 4 SCC 194 (para 45 and 46)
45. A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others8 shall suffice.
46. In Virender Nath Gautam (2007) 3 SCC 617, the Court referred to the leading case of Philipps v. Philipps and Others (1878) 4 QBD 127 (CA) and the subsequent decision in Bruce v. Odhams Press Limited (1936) 1 KB 697 that referred to Philipps (1878) 4 MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 57 of 81 QBD 127 (CA) and observed in paragraphs 34 and 35 (Pg. 629) of the Report as follows: (Virender Nath case (2007) 3 SCC 617, SCC p. 629) "34. A distinction between "material facts" and "particulars", however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise.
"35. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 58 of 81 case which is in the nature of evidence a party would be leading at the time of trial."
(v) Jeet Mohinder Singh Vs Harminder reported in (1999) 9 SCC 386.
"40. Before we may proceed to deal, in exercise of our appellate jurisdiction, with the pleas raised on behalf of the petitioner- appellant canvassing commission of corrupt practices by the respondent which in the opinion of the High Court the election petitioner has failed in proving, we would like to state a few well- settled legal principles in the field of election jurisprudence and relevant to our purpose. They are:
(i) ... ...................... ................................
(ii) ................................................................
(iii) ...............................................................
(iv) Section 83 of the Act requires every election petition to contain a concise statement of the material facts on which the appellant relies. If the election petition alleges commission of corrupt practice at the election, the election petition shall set forth full particulars of any corrupt practice including as full a statement as possible of the names of the parties alleged to have committed such MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 59 of 81 corrupt practice and the date and place of the commission of each such practice. Every election petition must be signed and verified by the appellant in the manner laid down for the verification of pleadings in the CPC. An election petition alleging corrupt practice is required to be accompanied by an affidavit in Form 25 read with Rule 94A of the Conduct of Election Rules, 1961. Form 25 contemplates the various particulars as to the corrupt practices mentioned in the election petition being verified by the appellant separately under two headings: (i) which of such statements including particulars are true to appellant's own knowledge, and (ii) which of the statements including the particulars are true to information of the appellant. It has been held in Gajanan Krishnaji Bapat's case (supra) that the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice so as to bind him to the charge levelled by him and to prevent any fishing or roving enquiry, also be prevent the returned candidate from being taken by surprise. (emphasis supplied) 4.2. an impermissibility of introduction/relying on other materials which were not originally in the Election Petitioner as it would MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 60 of 81 amount to amendment of the petitioner and thus, against the mandate of Section 86 of the R.P. Act.
a) the case of the Harmohinder Singh Pradhan -Vs- Ranjeet Singh Talwandi and others reported in 2005 (5) SCC 46 (para 14), has settled the principle of law that, if material facts and documents, are missing in the election petition, they cannot be supplied later on, after the expiry of the period of limitation for filing the election petition i.e. 45 (forty-five) days from the date of declaration the election under Section 81 (1) of the Representative of the People Act, 1951.
"14. Necessary averments of facts constituting an appeal on the ground of 'his religion' to vote or to refrain from voting would be material facts within the meaning of Clause (a) of sub-Section (1) of Section 83 of the Act. If such material facts are missing, they cannot be supplied later on, after the expiry of period of limitation for filing the election petition and the plea being deficient, can be directed to be struck down under Order VI Rule 16 of the Code of Civil Procedure, 1908 and if such plea be the sole ground of filing an election petition, the petition itself can be rejected as not MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 61 of 81 disclosing a cause of action under Clause (a) of Rule 11 of Order VII of the Code."
b) Dharlipakar vs Rajiv Gandhi reported in AIR 1987 SC 1577 (para 14)
c) Jitu Patnaik vs SanatonMohakud reported in (2012) 4 SCC 194 (para 45 and 46)
d) Jeet Mohinder Singh Vs Harminder reported in (1999) 9 SCC
386. (para 40).
4.3. Travelling beyond the pleading is impermissible.
a) Azhar Hussain vs Rajiv Gandhi reported in 1986 (Supp) SCC 315 (para 18)
b) Ananga Uday Singh Deo Vs Naresh KushaliShigaonakar reported in (2009) 9 SCC 310. (para 57, 61 and 51)
d) Ram Sukh Vs Dinesh Aggarwal reported in (2009) 10 SCC 541 (para 15 and 16)
e) Union of India Vs Ibrahim Uddin reported in (2012) 8 SCC 148 (para 77 and 85.6) MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 62 of 81 "77. This Court while dealing with an issue in Kalyan Singh Chouhan v. C.P. Joshi , AIR 2011 SC 1127, after placing reliance on a very large number of its earlier judgments including Messrs. Trojan & Co. V. RM.N.N. NagappaChettiar, AIR1953 SC 235; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector &Anr., AIR 2005 SC 3165; and State of Maharashtra v. M/s Hindustan Construction Company Ltd., AIR 2010 SC 1299, held that relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon."
85.6 The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 63 of 81 ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it."
[26] I have perused the case laws cited by the learned senior counsel for the Respondent No. 1 which are not applicable in the present application. As stated supra Honorable Apex Court in its Order dated 5/3/2020 observed that in so far as the documents at serial Nos. 15 to 20 in Schedule II, copy of the same can be obtained by the Petitioner only if the Court so order in terms of the relevant Rules 92 and 93 of the conduct of election Rules, 1961, as the case may be. The Honorable Apex Court also further observed that the petitioner to approach the High Court in respect of documents at Serial Nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by the High court Document-wise, about the relevancy and necessity to produce the same subject to just exceptions. Thus, this Court is now concerned with the Documents at Serial Nos. 15 to 20 of Schedule II.
[27] Moreover, again by the Order dated 03/03/2021 of the Hon'ble Apex Court was pleased to direct to reconsider of the request made by the Petitioner regarding production of documents at Serial Nos. 15 to 20 of Schedule-II. That MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 64 of 81 question be answered appropriately after analyzing relevant pleadings including the evidence already brought before the Court, in the form of affidavit of evidence.
[28] This Court considered the submissions made by the learned Counsel for the parties and also perused the materials available on records. [29] Election Petition No. 5 of 2017 has been filed by the petitioner challenging the result of 11-Sagolband Legislative Assembly Constituency election held on 04.3.2017 and the declaration that the first respondent has been elected to the Manipur Legislative Assembly Constituency. [30] According to the petitioner, the total number of votes polled was 19581, out of which 19283 votes were polled through Electronic voting Machine and 298 votes were recorded by postal ballots. The petitioner received 9066 votes through EVM and the respondent No.1 received 9056 votes. The respondent No.1 polled 155 votes by postal ballot whereas the petitioner polled 126 votes by postal ballot and due to receipt of 29 more postal votes by the respondent, he won the election by a margin of 19 votes from the petitioner. [31] It is seen that pending election petition, the petitioner has filed two petitions being MC (EP) Nos. 15 and 16 of 2018.MC (EP) No. 15 of 2018 has been filed seeking leave to produce the original documents in possession and MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 65 of 81 power of the petitioner and MC (EP) No. 16 of 2018 has been filed to call for the documents in Schedule I and Schedule II annexed in the said petition. The details of documents listed out in both the petitions are as under:
Documents listed in MC (EP) NO. 15 Documents listed in Schedule I and of 2018 Schedule II of MC (EP) NO. 16 of 2018 Documents in Serial NOS. 1 to 15 All the documents in Schedule I Documents in Serial Nos. 16 to 19 Documents in Serial Nos. 1 to 4 of Schedule II Documents in Serial Nos. 23 to 32 Documents in Serial Nos. 5 to 14 of Schedule II Documents in Serial Nos. 39 to 68 Documents in Serial Nos. 21 to 50 of Schedule II [32] By an order dated 14.1.2019, this Court dismissed MC (EP) No.16 of 2018. Aggrieved by the said order, the Petitioner has filed SLP No.10804 of 2019 before the honorable Apex Court. Pending SLP, by an order dated 15.4. 2019, MC (EP) No.15 of 2018 was dismissed by this Court. Aggrieved by the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 66 of 81 dismissal of MC(EP)No. 15 of 2018, the petitioner has filed a review petition being MC (Review Petition) No. 1 of 2019. The respondent has also filed MC (EP) No.27 of 2019 to dismiss the review petition. Pending both the petitions, the Honorable Apex Court disposed of the SLP by an order dated 5/3/2020. The order of the Honorable Apex Court dated 5/3/2020 is extracted herein under:
"Learned counsel for the petitioner contends that as regards the document(s) referred to in Schedule-I, the same being public document(s) have been made available to the petitioner which the petitioner may consider of placing on record at the appropriate time, including certified copies, thereof, as and when available to the petitioner. Similarly, document(s) in Schedule II, except referred to in serial Nos. 15 to 20 of that Schedule, the petitioner would be in a position to produce the same being public document(s).
In so far as the document(s) at serial Nos. 15 to 20 in Schedule-II copy of the same can be obtain by the petitioner only if the Court so order in terms of the relevant Rules 92 and 93 of the Conduct of Election Rules, 1961, as the case may be.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 67 of 81 That request can be considered by the court subject to relevancy of the document(s) in the context of averment made in the election petition and just exceptions as may be available in law to the opposite party. We accede to the request of the petitioner to approach the High Court in respect of document(s) at serial Nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by the High Court document-wise, about the relevancy and necessity to produce the same subject to just exceptions.
The petitioner is at liberty to apply to the concerned authorities for obtaining public document(s) (other than mentioned in serial Nos. 15 to 20 of Schedule-II) as per the rules applicable in that regard. The Special Leave petition is disposed of accordingly. Pending applications, if any, stand disposed of."
[33] The Honorable Apex Court considered the request of the petitioner and directed him to approach this Court in respect of documents at Serial Nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by this Court document vice about the relevancy and necessity to produce the same subject to just exceptions.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 68 of 81 [34] The instant petition has been filed by the petitioner to call for the documents at Serial Nos. 15 to 20 of Schedule II annexed with MC (EP) No. 16 of 2018 from the respective authorities and on receipt of the same, allow the petitioner to inspect the said documents and take certified copies of the same. [35] The documents at serial Nos. 15 to 20 of Schedule II and from whom they are to be called for are as follows:
SL. NO. Particulars of documents From whom to be called 15 Packets of unused postal ballot The District Election papers with counterfoils attached Officer/Returning Officer of No. 11-
thereto Sagolband Legislative Assembly
Constituency, Manipur.
16 Packets of used postal ballot The District Election
papers whether valid, tendered or Officer/Returning Officer of NO. 11-
rejected Sagolband Legislative Assembly
Constituency, Manipur.
17 Packets of the counterfoils of used The District Election
MC(EP) No.19 of 2020
Ref:- El. Petn.No.5 of 2017
Page 69 of 81
postal ballot papers Officer/Returning Officer of NO.11-
Sagolband Legislative Assembly
Constituency, Manipur.
18 Packets of the marked copy of the The District Election
electoral roll Officer/Returning Officer of NO. 11-
Sagolband Legislative Assembly
Constituency, Manipur.
19 Packets containing registers of The District Election
voters in Form 17 Officer/Returning Officer of NO. 11-
Sagolband Legislative Assembly
Constituency, Manipur
20 Packets of the declarations by the The District Election
electors and the attestation of Officer/Returning Officer of NO. 11-
their signatures in respect of Sagolband Legislative Assembly
postal ballot Constituency, Manipur.
[36] Against the Order dated 15/01/2021 of this Court, the Respondent
No. 1 preferred SLP being SLP (C) No. 2743 of 2021 before the Hon'ble Apex MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 70 of 81 Court. On 03/03/2021, the said SLP was disposed of by the Hon'ble Apex Court by restoring the MC (El. Petn.) 19 of 2020 to the file on its original number for fresh reconsideration of the request made by the Election Petitioner. The Hon'ble Apex Court, while restoring the MC (El. Petn.) 19 of 2020 to the file of this Court, was pleased to observe, inter-alia, as follows:
"... the respondents once again requested the High Court for direction to order production of documents at serial Nos. 15 to 20. That request has been favourably answered by the High Court vide impugned judgment on the observation that the stated documents are relevant to resolve the disputes involved in the main election petition. No specific analysis of the pleading and the evidence already produced by the parties has been adverted to, which can be the basis for answering the matter in issue. The relevancy of the document must be judged essentially in reference to the election in election petition and the oral evidence produced by the parties during the trial. ... Be that as it may, taking overall view of the matter, we relegate the parties before the High Court for reconsideration of the request made by the respondents of production of documents at Serial Nos. 15 to 20 referred to in paragraph 14 of the impugned judgment. That question be MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 71 of 81 answered appropriately after analyzing relevant pleadings and the evident already brought before the court including in the form of affidavit of evidence. All contentions available to both the sides are left open, to be considered on its own merits and in accordance with law. ...."
[37] The document at Sl. No. 15 of Schedule-II i.e. "Packets of unused postal ballot papers with counterfoils attached thereto"are required on the following grounds:
(i) Election Petition No.5 of 2017 was filed by the Petitioner challenging the result of 11-Sagolband Legislative Assembly Constituency election held on 04.03.2017 and the declaration that Respondent No. 1 (the "Returned Candidate") has been elected to the Manipur Legislative Assembly from the said Constituency on 11.03.2017. In the said election the total number of votes polled was 19,581, out of which 19,283 votes were polled through Electronic Voting Machine (EVM) and 298 votes were recorded by Postal Ballots. The Election Petitioner received total 9,066 votes recorded through EVM whereas the Respondent No. 1 received total 9,056 votes recorded through EVM and accordingly, the Election Petitioner was leading to MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 72 of 81 the Respondent No. 1 by 10 votes. However, the Respondent No. 1 polled 155 votes by Postal Ballot whereas, the Election Petitioner polled 126 votes by Postal Ballot and accordingly, due to receipt of 29 more Postal Ballots by the Respondent No.1, he won the election by a margin of 19 votes from the Election Petitioner.
(ii) The Election Petitioner filed the Election Petition No. 5 of 2017 challenging the election result as void on the ground of illegal and improper reception of 298 Postal Ballot papers and for violation of the provisions of the Constitution of India or of the Representation of the People Act, 1951, the Rules, 1961 and the guidelines issued by the Election Commission of India in respect of the Postal Ballot.
(iii) The Petitioner made written request seeking separately the number of Postal Ballot papers issued to each category of electors entitled to vote by Postal Ballot and also the mode and manner in which the Postal Ballot papers were sent. Further information was sought to provide the number of persons to whom Postal Ballot papers were provided by post as well as personally. The information was also sought as to whether the electoral roll number of the voters MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 73 of 81 concerned were entered in the counterfoil of Postal ballot papers and as to whether the name of the concerned voter were marked in the marked copy of the electoral roll. The information was also sought as to whether the counterfoils as well as the marked copy of such electoral roll were sealed in the mode and manner as prescribed in the Rules, 1961. However, the said information were not provided to the Petitioner by the Returning Officer and/or District Election Officer.
(iv) There would be a total number of postal ballots issued by the Returning Officer/District Election Officer, Imphal West in respect of 11-Sagolband A/C and this Court could verify the number of Postal ballots used and unused postal ballot papers with counterfoils attached thereto as alleged by the Petitioner in his pleading in Para No. 31. After calling the documents at Sl. No. 15 of Schedule-II, this Court could able to ascertain the allegations and objection of the parties.
MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 74 of 81 [38] The document at Sl. No. 16 of Schedule-II i.e. "Packets of used postal ballot papers whether valid, tendered or rejected" is necessary to be called on the following grounds:
(i) As alleged by the Petitioner Form 20 show that a total of 298 votes were recorded on Postal Ballot papers and out of which 14 were rejected, the Election Petitioner received 126 votes, the returned candidate, Respondent No. 1 received 155 votes and Respondent Nos. 2 and 3 received 2 and 1 votes respectively.
(ii) Since the record shows that the 298 votes were polled through Postal Ballot, the same has to be polled in accordance with the provisions of Section 60 of the Act, 1951 read with Section 20 of the Act, 1950 and in compliance with Rules 17 to 27 and Rules 27A to 27K of the Rules, 1961 and it has to be counted in accordance with Rule 54-A of the Rules, 1961. While complying with the aforesaid provisions of law, the poll officials are also required to use the following prescribed Forms:
(a) Form 12 - Letter of intimation to Returning Officer,
(b) Form 12A - Application for Election Duty Certificate, MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 75 of 81
(c) Form 12B - Election Duty Certificate,
(d) Form 12C - Letter of intimation to Assistant Returning Officer for notified class of electors,
(e) Form 13A - Declaration by Elector,
(f) Form 13B - Cover A,
(g) Form 13C - Cover B (To be used at an election to the House of the People or the Legislative Assembly of a State),
(h) Form 13C - Cover B (To be used at an election to the Council of States or to the Legislative Council of a State),
(i) Form 13D - Instructions for the guidance of electors (To be used at an election to the House of the People or the Legislative Assembly of a State),
(j) Form 13D - Instructions for the guidance of electors (To be used at an election to the Council of States or to the Legislative Council of a State), MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 76 of 81
(k) Form 13E - Instructions for guidance of notified class of electors (To be used at an election to the House of the People /Legislative Assembly).
[39] During the course of trial of the Election Petition, this Court has to ascertain used postal ballot papers whether valid, tendered or rejected so that this Court could verify the allegation whether the Election Officers had counted the postal ballots in accordance with laws or not? [40] Moreover, "The packets of used Postal Ballot papers whether valid, tendered or rejected" are necessary because from the record, this Court has to ascertain that whether the Returning Officer has violated the mandate of the election commission as the Petitioner has pleaded in his pleading that there was no re-verification and recounting of the postal ballot papers and there was no videography of the proceeding even though "the victory margin is less than the total number of postal ballots received".
[41] The document at Sl. No. 17 of Schedule-II i.e. "Packets of the counterfoils of used postal ballot papers" is necessary to be called because it will be required to be compared with the requirement of Form 12. [42] The document at Sl. No. 18 of Schedule-II i.e. "The packets of the marked copy of the electoral roll" in respect of postal ballot papers is relevant MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 77 of 81 in solving the discrepancies in the procedure by a person/elector who wants to cast his/her vote in Form 12 and those who actually casted their votes through postal ballot papers. In the Received Register and Issue Register maintained by the Election Authorities, there are glaring defects in the signatures of the electors, non-mentioning of received/issue dates and many of the column are blanks which are required to be filled up as per the guidelines. Further, the number of postal ballot papers issued to the electors is not tallied with the number of postal ballot papers received at the time of counting. [43] The document at Sl. No. 19 of Schedule-II i.e. "The packets containing registers of voters in Form 17 is necessary to be produced and inspectedsince the Returning Officer rejected 14 (fourteen) postal ballot papers on the ground that the electors/voters through EVM as well as postal ballots. As such, by the document at Sl. No. 19 of Schedule-II, this Court could ascertain the said 14 (fourteen) postal ballot paper rejected by the Returning Officer was properly checked as per procedure laid down by the Instructions of ECI or its relevant laws.
[44] The document at Sl. No. 20 of Schedule-II i.e. "the packets of the declarations by electors and the attestation of their signatures in respect to Postal Ballot (Form 13A)" are also required to be produced and inspected since the allegations of the Election Petitioner is that many of the signatures of the MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 78 of 81 electors in the Issue Register are not matched with the signatures of the applicants/voters in the Form 12 and the attestations are not done in accordance with the law.
[45] As such, the apprehension and controversy can only be put to an end if the "declarations by the electors and the attestation of their signatures in respect to postal ballot" are called for from the concerned authority and this Court has to verify the said documents at Sl. No. 20 of Schedule-II so as to decide the allegation of the Petitioner.
[46] This Court also found that Declaration in the form of Form 13A is necessary to identify the voter, from which he comes from, his number and all other particulars of the voters including voter's signature. As such, the scrutiny of the declarations Form 13A are required to ascertain as to whether their signatures are matched with the "Registers of voters in Form 17 A" and Form 12 or if the reception and rejection of the ballot papers were in accordance with the rules and guidelines.
[47] As observed from the records of the case, this Court does not find any points which can cause suffer and loss to the Respondent No. 1 if the documents at Sl. Nos. 15 to 20 of Schedule-II are allowed to produce and moreover which are required for just decision of the present Election Petition. MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 79 of 81 This Court also cannot accept the submission of the Learned senior counsel for the Respondent No. 1 that the petitioner has not taken any plea and specific assertion or allegation regarding the documents at Sl. Nos. 15 to 20 of Schedule- II in the main election petition.
[48] The documents to be called for are packets of unused postal ballot papers with counterfoils attached thereto; packets of used postal ballot papers whether valid, tendered or rejected; packets of the counterfoils of used postal ballot papers; packets of the marked copy of the electoral roll; packets containing registers of voters in Form 17 and packets of the declarations by the electors and the attestation of their signatures in respect of postal ballot. Since the aforesaid documents are relevant to resolve the dispute involved in the main Election Petition, those documents are necessarily to be marked as exhibits in this case. Therefore, this Court is of the firm view that the examination of the documents referred to by the Petitioner are relevant and/or necessary to substantiate the allegations leveled by the Petitioner in his election petition and it is not the case of the Respondent No. 1 that these documents are public documents which are readily available. Moreover, no prejudice would be caused if the documents at Serial Nos. 15 to 20 of Schedule II are called for in this case and furnished certified copies of the same to the petitioner in order to produce the same in the main election petition. On the other hand, this Court feels that if those documents MC(EP) No.19 of 2020 Ref:- El. Petn.No.5 of 2017 Page 80 of 81 were not produced and/or exhibited in the main election petition, irreparable loss and hardship would be caused to the Petitioner. That apart, the instant petition has been filed by the Petitioner in terms of the order of the Honorable Apex Court dated 5/3/2020 and again on 03/03/2021, the Hon'ble Apex Court directed to analyses the relevancy of the documents at Sl. Nos. 15 to 20 of Schedule-II. Therefore, in the interest of justice and proper adjudication of the controversy involved in the election petition, the present petition is liable to be allowed. [49] Accordingly, a) MC(Elec.Petn.) No.19 of 2020 is allowed.
b) The documents at Serial Nos. 15 to 20 of Schedule II Annexed with MC (EP) No. 16 of 2018 are directed to be called for from the respective authorities by petitioner for which the petitioner has to pay necessary batta and pay fees/charges.
c) The authorities concerned/District Election
Officer, Imphal West/RO shall permit the
Petitioner to inspect the documents within 3
(three) days from the date of receipt of this Order
in presence of the Respondent No. 1 or his
MC(EP) No.19 of 2020
Ref:- El. Petn.No.5 of 2017
Page 81 of 81
agent/nominee and furnish the certified copies of
the documents within 3 (three) days from the date
of receipt of the application of the petitioner for
which the Petitioner applied for and then file the
same in the main election petition for marking
purpose.
[50] Registry is directed to issue copy of this order to both the parties
through their whatsapp/e-mail.
JUDGE
FR/NFR
-Larson
MC(EP) No.19 of 2020
Ref:- El. Petn.No.5 of 2017