Delhi District Court
Sandeep Gandhi vs Union Of India on 6 March, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE (NORTH-WEST)-II: ROHINI: DELHI
Suit No. 90/2008
Sandeep Gandhi
S/o Shri Ram Prakash
R/O 3/5/34, S.S. Street,
Gopi Nath Bazar, Delhi Cant.
Delhi.
......... Petitioner
VERSUS
1. Union of India
Through Secretary to the Govt of India
Ministry of Defence
South Block, New Delhi
2. The President
Delhi Cantonment Board
Through ITS Cantonment Executive Officer
Delhi Cant.,
Delhi
3. Sh. Sanjeev Nayyer
3/4/60, S.S. Street
Gopinath Bazar, Delhi Cant.
Delhi
4. Sh. S.M. Bhardwaj
Returning Officer, Delhi Cant. Board
Delhi Cant.
Delhi
4A Mohd Aslam
175, Captain Colony
Delhi Cant. Delhi
-: 1 :-
5. Preet Bawa
5/10, S.S. Street
Gopinath Bazar, Delhi Cant.
Delhi
6. Dhama Tanvir Singh
1/63, Sadar Bazar
Delhi Cant.
7. Padam Jain
3/4/34, S.S. Street
Gopinath Bazar, Delhi Cant.
Delhi
8. Ramesh Jain
3/4/29, Gopinath Bazar,
Delhi Cant. Delhi
9. Saurabh Jaiswal
3/2/8, 2nd Floor
Gopinath Bazar, Delhi Cant.
Delhi
10. Mohinder Kalra
3/5/53, S.S. Street
Gopinath Bazar, Delhi Cant.
Delhi
11. Deepak Rai
20,Maude Road,
Delhi Cant. Delhi
12. Sahil Sahni
3/127, S.S. Street
Gopinath Bazar, Delhi Cant.
Delhi
-: 2 :-
13. Ajay Sehgal
4/1/65-A,
Gopinath Bazar, Delhi Cant.
Delhi
14. Brig. H.P.S. Dhillon
President,
Delhi Cantonment Board
Delhi Cant., Delhi
................ Respondents
Date of Institution: 27.5.2008
Arguments Heard on: 2.3.2010
Date of Decision: 6.3.2010
-: J U D G M E N T :-
This petition under Rule 55, 56, 57, 58 & 60 of Delhi
Cantonment Electoral Rules, 2006 has been filed by the election
petitioner Sandeep Gandhi seeking a declaration to the effect that the
election of the respondent no.3 is illegal, null and void and seeking
further directions that the petitioner be declared elected. The brief
facts of the case are as under:
BRIEF FACTS:
Petitioner's Case:
According to the petitioner, he is aggrieved by the illegal process adopted in the elections of Ward No.3 of Delhi Cantonment -: 3 :- Board, Delhi, in the elections held on 18.05.2008, wherein the respondent no. 3 was declared elected illegally. It is pleaded that the election to the Delhi Cantonment Board was notified vide Notification dated 22.03.2008; the nominations were to be filed on 19.04.2008; scrutiny was to be held on 21.04.2008; the date of allotment of symbol was fixed 25.04.2008; election was scheduled for 18.05.2008; counting of votes polled was to take place on 19.05.2008 and the result was to be declared on the completion of the counting process. The election to the Ward No. 3 was held on 18.05.2008 wherein the petitioner had contested the election as one of the candidates and the result was declared on 19.05.2008. The total number of votes cast were 3027, out of which total number of votes were declared invalid was 643 and the respondent No.3 was declared elected with 1049 votes and the petitioner had got the next highest votes i.e. 700 as per the Notification of the result of election of ward No.3, Delhi Cantonment Board, Delhi. According to the petitioner, he was allotted election symbol of Sewing Machine in terms of Rule 31 (5) (6) of the Cantonment Electoral Rules, 2007. It is alleged that the respondent no.2 while delineating the constituency of Ward No.3 had wrongly ignored to include in that -: 4 :- ward the area of 285FD Workshop which he included in Ward No.2 which act itself is illegal and is contrary to the law and is beyond the statutory powers of respondent no.2.
As per the allegations, the respondent No.4 committed a deliberate fraud on the electors of the area when he chose to declare some of the votes cast in favour of the petitioner as invalid. According to the petitioner, the number of such invalid votes is very high and from the scrutiny of the votes declared invalid, it can be ascertained that not less than 500 votes, which clearly shows the mandate of the voter in favour of the petitioner without any ambiguity of any nature whatsoever and yet these votes were declared as invalid, without any cogent reason or logic. The said act prejudiced the petitioner as he lost the elections by a margin of 349 votes and therefore, by manipulating the counting, the respondent no.4 has failed to carry out the mandate given to him by the statute in a fair manner, rather defeated the very purpose of election. It is stated that the will of the electors have expressed in the votes polled by them, has been thrown to dustbin because the respondent no.4 wanted a particular candidate i.e. respondent no.3 to be declared as elected. It is further alleged that the -: 5 :- areas where the entry was restricted, the petitioner and his supporters were not allowed to enter or contact the voters or to address election meetings, by the defendant no.14 i.e. Commandant of the area whereas the respondent no.3 and his supporters were allowed free access to such prohibited areas. It is further stated that the Defence Service Officers Institute, Dhaula Kuan is a Club of Officers, working as well as retired, of the Forces of India and the said Club has a large number of employees, nearly 1000, majority of whom stay in the quarter provided by the Club, along with their families. The said area is also part of ward no.3 and a meeting was scheduled by the supporters of the petitioner in the residential area of the said Club, where most of the employees of the Club reside which meeting scheduled to be held on 13.05.2008 was cancelled by the Secretary of the Club at the behest of respondent no.2 whereas the respondent no.3 continued to have free access to visit the area along with his supporters. It is alleged that the respondent no.3 not only visited the club area also but also held contact programmes with the employees while they were at their work place. It is also stated that the respondent no.14, Brig. H.P.S. Dhillon was also seeing visiting the Polling Booths and giving directions to the -: 6 :- Army Personnel to vote for the respondent no.3 pursuant to which in polling booths 17 and 24, where the voters were largely from Army, the respondent no.3 got over whelming of votes.
According to the election petitioner, on the eve of election i.e. on 17.05.2008 in the most brazen manner a circular was issued providing for a declaration that vide the aforesaid impugned circular the voting on the basis of identification of Rickshaw Licenses, Dependent Cards etc. was to be not allowed, surreptitiously at the instance of the BJP leaders without affording any hearing to any other candidate concerned therein. It is pleaded that while this circular was circulated to the Election Officers, responsible for the conduct of the elections at various booths and the voters booths and voters were prevented from voting, another circular of the same date withdrawing the above said circular was issued, which circular withdrawing the above circular was not circulated, although kept on file due to which reason many eligible voters failed to cast their votes. It is alleged that the circular issued on 17.05.2008 was not brought to the notice of the petitioner and he learnt of this when he received complaints from the Polling Agents to the above effect pursuant to which he contacted the -: 7 :- officials and he was advised that the circular had been issued and the same had been withdrawn. It is stated that after the polling was over the petitioner learnt from his polling agents that they were shown the circular prohibiting the acceptance of identification but the circular withdrawing the same was not shown and consequently some voters were turned back.
It is also pleaded that an illegal process was adopted vide which the Ballot Papers were given without obtaining signatures from the voters appearing to vote at the Polling Booth and there were some voters whose names appearing more than once on the Electoral Rolls could have cast votes more than once by erasing the so called indelible mark put on the left Index finger or the next finger at the time of polling. According to the petitioner, the respondent no.4 chose to use traditional system of polling instead of the electronic (EVS) machines available for polling. It is further stated that two different stamps were kept at the place of stamping of votes, which resulted in two different types of stamps appearing on the votes, which facilitated the declaration of a large number of votes.
-: 8 :-
By way of the present petition, the petitioner seeks a declaration to the effect that the election of respondent No.3 to the Cantonment Board from Ward No.3 held on 18.05.2008 as illegal, null and void and set aside his election and declare the petitioner elected to Cantonment Board from Ward No.3. In an alternative, directions to the Cantonment Board for Ward No.3 and directions to the respondent No.1 not to approve the election result and also to not to issue the gazette notification in favour of respondent no.3. Respondent's Case:
The respondents no. 2,4 and 14 have filed their written statement wherein a preliminary objection has been raised that the petitioner has not complied with the mandatory provisions of Rule 56 of Cantonment Electoral Rules 2007 and therefore, the present petition is liable to be dismissed on this ground. It is stated that the present petition has been filed on vague allegations and as such is liable to be dismissed and the petitioner has made false & fabricated averments against the respondents.
On merits, the respondents have denied all the allegations made against them and it is stated that the delineating of constituency -: 9 :- was done as per the rules which cannot be a ground to challenge the election in view of Rule 59 of the Cantonment Electoral Rules 2007. It is stated that the respondent No.4 has declared the invalid votes as per rules and the allegation against the Respondent No.4 are simply flimsy and figment of imagination of the Petitioners and the same are without any merit of any basis. It is further stated submitted that the respondent No. 14 was President of the Cantonment Board being the Station Commander of the Cantonment Area and being Brigadier of Armed Forces at the time of conducting of elections, was doing his duty for the peaceful and fair conduct of elections. It is pleaded that the letter bearing No. FRO/ DCB/ Election/ 2008 dated 17.5.2008 was immediately withdrawn on the advice of the President of Cantonment Board. As per the Cantonment Electoral Rules, 2007 the Returning Officer shall appoint Polling Officer who shall be in-charge of the voting arrangements and responsible for fair, conduct of elections at his Polling Station. According to the respondents, as per Rule 40 the Polling Officer has been authorized to verify the identity of the elector and has been further authorized to put any questions that may be suggested by a candidate or an election agent. It is contended that in -: 10 :- view of the fact that no complaint was received from any person who has not been allowed to vote on the basis of letter dated 17 May 2008, the ground alleged by the petitioner is liable to be rejected. It is stated that the ballot papers were handed over to elector as per rule 41 of the Cantonment Electoral Rules 2007 and proper care was taken for conducting free and fair elections and since there was no complaint of any nature during the polling it can be very well assumed that these allegations are nothing but after thought to challenge the people's mandate on flimsy and baseless grounds.
The respondent no.3 has also filed his written statement wherein he has denied the various allegations made against him by the election petitioner. It is stated that as per Rule 49 all candidates who chose to be present at the counting were allowed to watch the counting and before rejecting any ballot paper, the Returning Officer allowed each candidate, including the petitioner a reasonable opportunity to inspect the ballot paper after which the Returning Officer recorded on every ballot paper which he rejected, the grounds for rejection in abbreviated form and initialed the same but the petitioner did not raise any objection whatsoever upon the rejection of any ballot paper by the -: 11 :- Returning Officers. According to the respondent no.3, after the counting was completed, the result of the counting was recorded in Form XA and the petitioner did not raise any objection even at this stage about the counting or upon the rejection of any ballot paper by the Returning Officer. He has further stated that even after the declaration of result and till the filing of the election petition, the election petitioner has not represented in any manner against the counting or the declaration of result to the Returning Officer or any other authority. It is also stated that the allegations made by the election petitioner are vague and general and the petitioner is seeking a recount which would lead to a fishing inquiry with a view to find out sufficient material to support his case. According to the respondents no.3, recount of votes can only be ordered very rarely and on specific allegation in the pleadings in the election petition that a legality or irregularity was committed by the plaintiff. It is pleaded that election is a technical matter, therefore the authorities have chosen experienced persons to do the counting and to take every possible care to see that the members of staff do not commit any mistake.
-: 12 :-
It is stated that it is not stated as to in which areas the petitioner and his supporters were not permitted to campaign; whether the petitioner had sought any permission to campaign in such areas; when and on what grounds the permission was declined and and in which colonies, on what dates and in which manner the respondent was allowed to campaign. It is further stated that the election staff and the polling officers are under a duty to ascertain and satisfy themselves that a person applying for a ballot paper "is the person who represents himself to be and is entitled to receive a ballot paper" which rule is in the interest of democracy and to prevent impersonation and bogus polling and in appropriate circumstances, a polling officer can ask the person intending to vote, to adduce evidence in proof of his identity. According to him, the same came to the knowledge of Bhartiya Janta Party when the petitioner and his party had obtained bogus rickshaw licenses, dependent cards and had also got made railway passes in the names of bogus voters to rig the election and distort the Will of the people. The said fact was communicated to the Returning Officer and presumably upon verification of the communication Circular No. F.RO/DCB/ELECTION/2008 dated 17th May 2008 was issued by the -: 13 :- Returning Officer for the purposes of Rule 44 (3) (a) of the Rules. It is also stated that Rule 41 of the Cantonment Electoral Rules 2007 deals with the procedure for supply of ballot papers to the electors and the method of voting and the rule does not require the polling officer to obtain the signature or thumb impression of the elector on the counter- foil of the ballot paper. Even in the conduct of Election Rules, 1961 the requirement of obtaining signatures or thumb impression of an elector on counter-foil of the ballot paper was introduced only in the year 1979. According to the respondent no.3, in the absence of any provision to obtain signatures or thumb impression of an elector on the counter-foil of the ballot papers, the Polling Officer could not require the same from any elector.
ISSUES FRAMED:
On the basis of the pleadings of the parties, this court had vide order dated 15.7.2008 framed the following issues:
1. Whether the plaint discloses no cause of action? (OPR-1)
2. Whether there has been a proper compliance of the provisions of Rule 56 of the Cantonment Electoral Rules, 2007? (OP Parties) -: 14 :-
3. Whether the election petition is supported by a proper affidavit?
If no, its effect? (OPR-3)
4. Whether the present petition is barred by principle of estoppel?
(OPR-3)
5. Whether the allegations made against the respondent by election petitioner in para 5,6,7,11 and 12 are correct? If yes then whether it would materially affect the result of the elections? (OPP)
6. Whether the votes have been improperly accepted/ rejected? If yes, whether it would materially affect the result of the elections?
(OPP)
7. Whether there has been non compliance of the provisions of The Cantonment Act, 1924 and Cantonment Electoral Rules, 2007 as alleged in the petition? If yes, whether it materially affects the results of the elections? (OPP)
8. Whether the circular issued on 17.5.2008 was properly conveyed to the election petitioner and the effect of the same on the result of the elections? (OPP)
9. Whether the election of the respondent no.1 is liable to be set aside under the electoral rules and the petitioner is liable to be -: 15 :- declared duly elected in place of respondent no.1 as the member of the Cantonment Board from Ward No.3? (OPP)
10. Relief.
There is a typographical error issue no. 9 where the words respondent no.1 have been wrongly typed whereas it should be respondent no.3. Therefore, the words 'respondent no.1' in issue no.9 shall be read as 'respondent no.3'.
EVIDENCE:
In order to prove his case, the petitioner Sandeep Gandhi has examined as many as three witnesses. The election petitioner in his examination in chief by way of affidavit has corroborated what he has earlier stated in his petition. He has placed on record the Symbol Notification which is Ex.PW1/1; Notification of votes against each candidate which is Ex.PW1/2; List of the prohibited area which is Ex.PW1/3; the details of the votes polled in Booth No.17, 18, 19 and 24 which is Ex.PW1/4 and copy of the circular dated 17.5.2008 which is Ex.PW1/5.
-: 16 :-
In his cross-examination the witness has stated he was present throughout the counting alongwith his counting agent Sh. Rakesh Alag and other candidates were also present. He has admitted that whenever any ballot paper was sought to be rejected they were given an reasonable opportunity to inspect the same before a decision thereof but according to him, it was not a reasonable opportunity since they had to inspect the ballot papers through a wire mesh and the space on the wire-mesh was congested. He has further admitted that after every round of connecting a result was prepared. According to the witness, he tried to approach the SDM who was the Returning Officer to lodge a complaint but he found Brig. Dhillon in his full uniform alongwith three gunmen of Delhi Police who all prevented him from reaching the SDM. PW1 has further stated that he reached the figure of some 500 votes cast in his favour having been wrongly rejected by watching the counting. The witness has admitted that he did not seek any permission to hold a meeting in the DSOI, Dhaula Kuan arranged by them on 13.5.2008 and had applied for a general permission for campaigning. PW1 further admits that they had not made any written complaint to the Returning Officer or to the then President of the -: 17 :- Board regarding any impediment in visiting area in the ward or in holding any meeting in the area of ward but has stated that they had attended a meeting in the office of Returning Officer where they were assured and were shown a circular that the free campaigning has been recommended with the President of the Board. The witness has further admitted that he had appointed polling agents and all polling agents reached their respective polling stations in time and that if there was no objection on his identity the voter was allowed to vote and if any polling agent wanted to challenge the identity of a voter, he was required to fill up a form for the said purpose and deposit a fee of Rs.100/-.
According to PW1, some rikshaw pullers were turned away as they showed the rikshaw licenses which were not accepted as proof of identity. He does not know the names of any such person and according to him, Sh. Bane Singh, Polling Agent at Polling Booth No. 18 had given him the said information. He has also stated that most of the persons mentioned in the electoral roll which is Ex.PW1/6 have casted their votes.
-: 18 :-
The election petitioner has also examined one Sourabh Jaiswal (who is the respondent no.9 in the present petition) as PW2 who in his examination in chief by way of affidavit supported the case of the petitioner to the extent that Sh. H.P.S. Dhillon was directing the army personnel to consider to vote for BJP candidate in Polling Booth no.24. He has deposed that he had moved applications for permission to visit the restricted areas but the same was not granted to him. According to PW2, a large number of 643 invalid votes had been wrongly declared as invalid.
In his cross-examination the witness has stated that he did not receive even a single vote. The witness has placed on record the application for permission to campaign in the defence area which is Ex.PW2/RA. PW2 has deposed that he had applied to the Station Head Quarters and DOARA Office and got a receipt for the same. He has admitted that he did not apply for permission to campaign in defence areas from the Returning Officer. The witness is not aware as to what criteria was adopted for rejecting the votes in the other ward. He has deposed that polling booth no. 24 was situated in a restricted defence area and he had gone in the area on the day of polling. -: 19 :-
PW3 Sahil Sahni is the respondent no.12 in the present petition and has corroborated the testimony of PW2 in toto. In his cross-examination the witness has deposed that his conversation with Brig. Dhillon has not been mentioned in his affidavit of evidence. According to him, he did not make any notice about the votes being accepted or rejected, however, he had seen the notes scribbled by Kallu, Bunty, Sandeep Gandhi and Sanjeev Nayyar and from those notes he formed an opinion that as many as 500 votes were arbitrarily declared as invalid. He has testified that he did not write any complaint upon the rejection of votes that were stamped from the horizontal side of the voting instrument as he had no writing material with him, however, he has made oral complaints.
In rebuttal the respondent no.3 Sanjeev Nayyer has examined himself as R3W1 and in his examination in chief by way of affidavit has corroborated what has been earlier stated in his written statement.
He, in his cross-examination, is unable to tell as to how many votes were declared invalid due to the marking with the horizontal side of the instrument for stamping ballot paper and it could -: 20 :- be 643 invalid votes. According to him, he won with a margin of 350- 400 votes and there is no area in his ward where the entry is restricted. He has deposed that the counting was in the presence of counting agents of all the parties and no objections were raised. He has admitted that the entry of civil persons is otherwise regulated in these areas and states that the entry of civil persons not residing in these areas is permitted on obtaining a pass from the station headquarter. R3W1 has admitted that all persons whether illiterate or literate generally know the symbol of BJP and that independent candidate are allotted election symbol for a particular election only and there is no prior association of the candidate with the symbol prior to its allotment. He has admitted that their party had sent a letter dated 17.5.2008 to the Returning Officer suggesting that railway passes, rickshaw licenses and dependent cards be not accepted as evidence of identity. The witness has further admitted that a circular Ex.PW1/5 was issued which was later on withdrawn and that he and his supporters were freely allowed to visit the areas mentioned in Ex.PW1/3. He has deposed that he used to show a paper which had a writing that he was a BJP candidate as it is also mentioned that some -: 21 :- persons could accompany him issued by Station HQ. He has deposed that he and his party had not raised any objections on the voters list and has admitted that he had noticed that there were large no. of voters whose names had appeared more than once in the voters list.
The witness has denied the suggestion that the President of Delhi Cantonment Board was seeking votes for BJP but has admitted that the President, DCB visited the polling booths including in the area in Ex.PW1/3 in army dress. He has testified that the persons who contested against him include Ramesh Jain, Aslam Kureshi, Ajay Sehgal, Mahender Kalra, Sandep Gandhi, Saurav Jaiswal and Shail Sahani. He is unable to tell if the petitioner has sought permission for himself and for his supporters for electioneering in the areas but states that he had seen him canvassing in those areas. According to the witness, it is possible that multiple entry of voters could be misused.
The witness Sanjeev Nayyar has been recalled on 19.11.2009 when he has placed on record the original letter dated 8.5.2008 issued on behalf of the Station Commander, Delhi Cant. permitting a group of 5 person for canvassing in defence area which is Ex.DW3/PA. In his further cross-examination has deposed that -: 22 :- somebody from the Station Head Quarter had signed the said letter. According to him, he did not personally receive the said document nor he personally delivered the application for permission to the Cantonment Board.
The respondent no.4 S.M. Bhardwaj who was the Returning Officer has examined himself as D4W1 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the written statement. He has placed on record the polling stations list bearing the signatures of Brig. H.P.S. Dhillon which is Ex.D4W1/1; the change in polling stations notified on 6.5.2008 and 14.5.2008 which are Ex.D4W1/2 & Ex.D4W1/3 and copy of the circular dated 17.5.2008 cancelling the earlier circular of even date which is Ex.D4W1/4.
In his cross-examination, the witness has stated that he is not aware if in the voters list many of the name of the voters are appearing more than once and he did not go through the voters list. According to him, he conducted the elections on the basis of the electoral roll as provided by the Cantonment Board. He has deposed that no bogus voting has taken place since no such incidents were -: 23 :- brought to his notice. The witness has further stated that the circular dated 17.5.2008 which is Ex.D4W1/4 cancelling his earlier circular was issued around 17.5.2008 and the intimation of the same was made to the parties concerned through CEO of the Cantonment Board who conveyed to him in the morning of 18.5.2008 that the circular has been conveyed to all the candidates. He is not aware if the said circular was conveyed to the general public/ voters by the CEO. According to the witness Brig. H.P.S. Dhillon had no role to play in the entire elections held on 18.5.2008 and he is not aware if Brig. H.P.S. Dhillon was seen among the voters in full uniform on the day of polling. He is unable to tell the date when certain persons were permitted to campaign in the restricted area though such permission was granted by the President, Delhi Cantonment Board on his directions since he had asked him to facilitate and assist him during the election.
The witness has testified that did not receive any applications seeking permission to campaign in the restricted area. He has admitted that he had made communications to the President/ Station Commander as late as 5.5.2008 asking him to grant permission to all persons concerned for campaigning. He is unable to produce any -: 24 :- record to show that the permission was granted by the Station Commander. He has admitted that it is his presumption that the election petitioner had been granted permission but stated that he presumed since he had not received any complaint from the candidates and also since he had received a telephone call from the Commanding Officer that he had granted permission. He has admitted that he has not mentioned this fact regarding the said call either in the pleadings in the written statement or in the examination in chief by way of affidavit. According to the witness, apart from granting the permission the Commanding Officer was also empowered to fix the locations of the polling booths, to appoint Returning Officer. R4W1 has admitted that he had given instructions that only those ballot papers which bear the swastic mark should be accepted as valid and the rest to be rejected. He is unable to tell without examining the ballot papers whether none of the markings had any confusion with regard to the intent of the electors.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and I have gone through the records of the -: 25 :- case. My findings on the various issues are as under:
Issue no. 1 Whether the plaint discloses no cause of action?
Onus of proving this issue was upon the respondent no.1. The case of the respondent no.1 is that there is no cause of action for the election petitioner to file the present petition. The term 'cause of action' would mean every fact which may be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment. In so far as the present petition is concerned, it is an admitted case of the parties that the election petitioner and the respondent no.1 were the contesting candidates belonging to different political parties. The respondent no.1 is the returned candidate of the elections held to the Cantonment Board in the year 2008. She has challenged the result of the elections of the respondent no.1 on the various grounds as mentioned in the petition. Whether or not she may succeed is a different issue but it cannot be said that there does not exist any cause of action as alleged by the respondent no.1. I find no merit in the objection raised. Issue is hereby decided in favour of the election petitioner and against the respondent no.1.
-: 26 :- Issue no.2 Whether there has been a proper compliance of the provisions of Rule 56 of the Cantonment Electoral Rules, 2007?
Onus of proving this issue was upon the parties. The case of the respondent is that the petitioner has not complied with the provisions of Rule 56 of the Cantonment Electoral Rules, 2007 which provides deposit of security of Rs.3,000/- alongwith election petition and since the word "shall" has been used in the Rule, therefore, it is a mandatory rule and non compliance would call for the rejection of the election petition.
I have considered the submissions made. It is an admitted case that the petitioner has not deposited the security of Rs.3,000/- as provided under Rule 56 in cash but at the same time it is also an admitted fact that a draft for a sum of Rs.3,000/- has been attached alongwith the election petition and this court had vide order dated 15.7.2008 directed the election petitioner to deposited the same in the treasury without prejudice to the rights and contentions of the respondents on merits. This being so, I hereby hold that there is a sufficient compliance of Rule 56 by the election petitioner. Issue is decided in favour of the election petitioner and against the -: 27 :- respondents.
Issue no.3 Whether the election petition is supported by a proper affidavit?
Issue no.4 Whether the present petition is barred by principle of estoppel?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the respondent no.3 who has in his written statement raised a preliminary objection that the election petition is not supported by a proper affidavit and the election petitioner having watched the counting without raising any objection is estopped from raising any objection in the present petition.
I have gone through the election petition and the supporting affidavit wherein the election petitioner had specifically stated that he affirms the statement of facts made in the petition are true and correct to his knowledge and the contents of the said petition may kindly be read as part of the affidavit. No doubt in the affidavit, the election petitioner omitted to mentioned the specific paragraph numbers of the petition contents of which are based upon his personal -: 28 :- knowledge and the paragraphs contents of which are based upon the legal advise received by him yet it is evident that a detail affidavit with regard to the allegations made in the petition has been filed by the election petitioner and with regard to the contents of the various grounds stated therein. The election petitioner having given the details of in the affidavit of evidence, this court is not required to reject the election petition by taking a hyper-technical view.
In so far as the issue regarding estoppel is concerned, once the Act provide for the grounds on the basis of which the election of an elected candidate can be challenged, merely because the petitioner has not raised any objection at the time of election and counting, it will not bar the election petitioner from raising the grounds subsequently in the court. The challenge on the aforesaid ground being statutorily permitted, I find no merit in the objection raised by the respondent no. 3.
Issues are decided in favour of the election petitioner and against the respondent no.3.
Issue no.5 Whether the allegations made against the respondent by election petitioner in para 5,6,7,11 and 12 are -: 29 :- correct? If yes then whether it would materially affect the result of the elections?
Issue no.6 Whether the votes have been improperly accepted/ rejected? If yes, whether it would materially affect the result of the elections?
Issue no.7 Whether there has been non compliance of the provisions of The Cantonment Act, 1924 and Cantonment Electoral Rules, 2007 as alleged in the petition? If yes, whether it materially affects the results of the elections?
Issue no.8 Whether the circular issued on 17.5.2008 was properly conveyed to the election petitioner and the effect of the same on the result of the elections?
All the aforesaid issues are clubbed together for the sake of convenience involving common discussion. Onus of proving all the issues was upon the election petitioner. The case of the election petitioner is that the respondent no.2 while delineating the constituency of Ward no.3 had ignored to include the area of 285 FD Workshop in that ward which he included in Ward no.2 which was subjected to as yet no modification was announced which act is illegal and contrary to law and beyond the statutory powers of the respondent no.2. It is also stated that the respondent no.4 committed a deliberate fraud on the electors of the area when he chose to declare some votes cast in favour -: 30 :- of the petitioner as invalid and the number of such invalid votes are very high which were not less than 500 votes clearly showing the mandate of the voter in favour of the petitioner, which prejudiced the petitioner as he lost the election by a margin of 349 votes. The election petitioner has further made allegations against the partisan attitude of the respondent no.4 in the process of counting and also alleges that the Commandant of the area i.e. the respondent no. 14 was helping the respondent no.3 in his campaigning whereas the petitioner was not allowed enter or contact the voters or to address election meetings in the prohibited areas to which areas the respondent no.3 had a free access. It is particularly alleged that the said the Defence Service Officers Institute, Dhaula Kuan had 1,000 employees majority of whom are staying in the quarter provided by the Club alongwith their families and a meeting was scheduled by the supporters of the petitioner in the residential area of the said club on 13.5.2008 which was cancelled by the orders of the Secretary of the Club at the behest of the respondent no. 14 while the respondent no.3 continued to have free access to visit the area alongwith his supporters. Further, allegations are made against the respondent no. 14 Brig. H.P.S. -: 31 :- Dhillon and according to the election petitioner, he was visiting the polling booths and giving directions to the Army personnels to vote for the respondent no.3 as a result of which the respondent no. 3 got over- whelming majority of votes from polling booth no. 17 and 24 where a large number of voters are from Army. It is also alleged that on 17.5.2008 a circular was issued providing for a declaration that voting on the basis of identification of Rickshaw Licenses, Dependent Cards Etc. were not to be allowed which was done at the instance of the BJP leaders without affording any hearing to any other candidate and a large number of voters were prevented from casting their votes and later on another circular of the same date withdrawing the above said circular was issued though the same was not circulated but kept on file due to which reason a large number of voters supporting the election petitioner were deprived from casting their votes. According to the petitioner, he came to know about the said fact when he received complaints from the polling agents in this regard and on contacting the officials, he was told that the circular had been withdrawn. It is also alleged that an illegal process was adopted vide which the ballot papers were given without obtaining signatures from the voters -: 32 :- appearing to vote at the polling booth and names of some voters were appearing more than once in the electoral rolls due to which reason such persons could have cast votes more than once by erasing the so called indelible mark put on the left index finger or the next finger at the time of polling. It is further stated that the respondent no. 4 chose to use traditional system of polling instead of the electronic voting machines available for polling which facilitated the abuse of process. It is also pleaded that two different stamps were kept at the place of stamping of votes which resulted in two different types of stamps appearing on the votes resulting into rejection of large number of votes.
The election petitioner in support of his case examined himself as PW1 and in his examination in chief by way of affidavit has corroborated what has been earlier stated in the petition in toto. He has also examined one Saurabh Jaiswal as PW2 and Shail Sahni as PW3. In rebuttal the respondent no. 3 Sanjeev Nayyar has examined himself as his witness wherein he has denied the various allegations made by the election petitioner. The returning Officer Sh. S.M. Bhardwaj has been examined as D4W1 who in his examination in chief by way of -: 33 :- affidavit testified that the elections have been held strictly as per the Cantonment Electoral Rules. According to him, the list of polling station for the purposes of election to be held on 18.5.2008 was issued on 2.5.2008 by Brig. H.P.S. Dhillon which bear the signatures of Brig. H.P.S. Dhillon and is Ex.D4W1/1. He has deposed that no complaint had been received against Brig. H.P.S. Dhillon to the effect that he was canvassing for BJP and has clarified that during the start of counting, he instructed all concerned that the ballot paper without the stamp of Swastik Mark shall be treated as rejected and the same should be produced before him for counter signatures. According to him, all the ballot papers were as per the prescribed format provided in the Cantonment Electoral Rules, 2007 and he did not receive any complaint from any person for not allowing casting their vote for the reason of issuance and cancellation of his circulars dated 17.5.2008 nor has he received any complaint from any person that he was not allowed to cast vote in army restricted area. He has stated that he did not receive any complaint of bogus voting or booth capturing from any person or party and the entire election process of conducted peacefully. -: 34 :-
In his cross-examination the witness has reaffirmed that no bogus voting had taken place. In connection with the later circular dated 17.5.2008 he has deposed that the circular cancelling the earlier circular was issued on 17.5.2008 at about 7 pm. Further, in respect of the allegation as to why the petitioner was not allowed to campaign in the restricted areas, he has deposed that the written permission of the Station Commander was required and any person who moved an application seeking campaigning in the area was required to be put up before the Station Commander who can accept or reject such a request. He has denied the suggestion that a large no. of voters were not able to cast their votes on account of the circular dated 17.5.2008.
I have gone through the testimonies of the various witnesses which include the testimonies of the election petitioner and his witnesses Saurabh Jaiswal and Shail Sahni. Firstly it is evident that the election petitioner has made number of allegations regarding double voting and votes being improperly rejected but he has failed to specify the number of the improperly rejected votes and number of double cast votes. The name of a single person who had cast the votes twice has not been mentioned and the entire allegations in this regard -: 35 :- are vague.
Secondly the ground that while delineating the constituency of ward no. 3 the respondent no. 2 had ignored to include the area of 285 Fd Workshop which was included in Ward no.2 of which no modification was announced, the petitioner has not lead any evidence except for his oral testimony. Even otherwise any objection regarding delineating of the constituency is required to be taken up before the competent authority within the stipulated period and it is not open for the election petitioner to challenge the same before the court in the election petition, as it would be beyond the purview of the Election Tribunal to go into it.
Thirdly it has been alleged that a large no. of votes which had been cast in favour of the petitioner had been wrongly rejected. It is argued that a no. of ballots which had been marked from the horizontal side of the instrument provided by the Returning Officer, had been rejected by the Returning Officer in the present ward. During the course of arguments it was pointed out that such types of ballots had been validly accepted in the constituency of ward no. 5, showing the inconsistency and arbitrariness of the returning Officer. -: 36 :- As per the provisions of Rule 34 (2) of the Delhi Cantonment Electoral Rules framed under the Delhi Cantonment Act, the Returning Officer is required to provide to the polling officers many other things and instruments for stamping the distinguishing mark on the ballot papers. It is the duty of the Returning Officer to provide instruments for stamping, distinguishing mark of the ballot papers and the articles necessary for the electors. These articles have already been provided by the Returning Officer which were required to be provided to the electors. It is stated by the election petitioner that the instrument of stamping which were provided to the polling officers by the Returning Officer were of poor quality and on many of the instruments the Swastic mark was not present and it was for this reason that the voters have marked the ballot papers from the horizontal side and therefore, under these circumstances, the said ballots should have been accepted and not rejected. This court had directed the production of the entire election record before it and had duly examined the said instruments of stamping and it had been observed that none of the instruments were either damages or not bearing the Swastic mark but it appears that the voters have chosen to put the stamp from the horizontal side and not -: 37 :- put the Swastic mark. Rule 34 (2) of the Cantonment Electoral Rules are very clear and the ballot papers are required to be marked with the instrument of marking providing by the Returning Officer which instrument of marking is the one which bears the Swastic mark and therefore, the intention of the voters have to be gathered from the marking made by them by which instrument of marking containing the Swastic mark. Therefore, the Returning officer in the present case has rightly rejected the ballots not containing the Swastic mark. It would be a different issue whether the said marking has been made from the horizontal side or by any other instrument. Once the instrument of marking bear the Swastic mark as provided, the intention of the voters cannot be gathered from any other marking. The allegation that the Returning Officer has adopted dual approach by accepting such ballot papers in Ward no.5, is an issue which is required to be dealt with while considering the challenge to the election in respect of ward no.5 where such ballots have been accepted. However, in so far as the present ward is concerned the said ballots have rightly been rejected by the Returning officer. Even otherwise, this court has duly examined the rejected ballots of the entire ward, record of which had been -: 38 :- produced before it. Rule 49 of the Electoral Rules framed under the Cantonment Act do not provide for marking the ballot in a particular manner but read with Rule 34 it provides for a distinguishing mark on the ballot papers which has to be put by the instrument of marking and therefore, any ballot paper which does not bear the distinguishing mark (Swastic Mark) and were bearing any other mark than the Swastic mark, had been rightly rejected by the Returning Officer. However, in so fas as acceptance of same in ward no. 5 is concerned, the same shall be considered by the Court as and when the petition in respect of challenge to election of ward no.5 is taken up for consideration.
Fourthly it is evident from the cross-examination of the witness of the petitioner that opportunities had been granted to them to inspect the ballot papers only after which it was rejected and neither the petitioner nor his election agent at any point of time gave any complaint in writing to the authorities in accordance with the Cantonment Rules nor have they requested for recounting.
Fifthly in so far as the allegations that the petitioner was not allowed to campaign in particular areas whereas the respondent had been granted such permission to the prejudice to the petitioner, it -: 39 :- is evident that such permission to campaign in the prohibited areas is subject to the permission granted by the Commanding Officer and there is nothing to record to show that any application has been filed by the petitioner seeking permission to campaign in the prohibited areas. It was necessary for the petitioner to have placed on record the specific request made by him in this regard or to have called the witness i.e. the Commanding Officer of the area or to prove that the same had not been considered by him which has not been done. Simply stating that he had been prejudiced would not be sufficient and the petitioner was required to prove the same which he has not proved.
Sixthly allegations have been made that respondent no. 14 Brig. H.P.S. Dhillon who is the President of the Delhi Cantonment Board was visiting around the polling booth and was canvassing for BJP. The only evidence on record is the oral testimony of the petitioner and his election agents who are all interested witnesses. No complaint in writing has been made against Brig. H.P.S. Dhillon and the Returning officer has very categorically deposed that he did not receive any such complaint and there is no reason to disbelieve the same.
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Seventhly the election petitioner has alleged that the circular dated 17.5.2008 had been issued at the instance of respondent no.3 providing that certain documents i.e. rickshaw license, dependent card and railway passes shall not be considered as documents of identity which circular was subsequently withdrawn but not widely publicized. It is not disputed that the said circular had been issued and later on withdrawn but it was necessary for the election petitioner to have brought before this court the persons who have been deprived from casting their votes on account of the aforesaid. It is not sufficient to simply plead that rights of certain persons had been defeated on this account but the names of the said persons which had been so prevented by issuance of said circular to cast their votes should have been provided and the said persons should have also been brought before this court, which has not been done. Neither the names nor the particulars of the said persons who have been prevented from casting their votes on account of the said circular, have been provided and therefore, I hold that the election petitioner has not been able to prove and substantiate the aforesaid ground. Further, it is evident from the cross-examination of the petitioner and his polling agents that no -: 41 :- objection had been raised by them at the time of election with the polling officer to the extent that some persons had been wrongly denied the entry to the polling station or their right to cast votes. The cause to demand any documentary evidence of identity arose upon the challenge of identity of a voter and upon depositing a sum of Rs.100/- as provided under the rules. It has been denied by the witnesses of the election petitioner that such procedure was being followed but identity of any voter was never challenged in the elections. This being so, I hereby hold that the issuance of this circular dated 17.5.2008 do not affect the result of the elections in any manner.
Lastly allegations have been made that traditional system of polling had been adopted instead of electronic voting machines. The allegations are vague since there is nothing on record to show that any prejudice has been caused to any of the candidate on account of the traditional use of voting. Traditional system of voting has been adopted on account of administrative exigencies and it is not open to this court to make any observations in this regard, no prejudice having being proved.
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Therefore, under these circumstances, I hereby hold that the election petitioner has not been able to prove and substantiate the allegations made against the respondents in para 5,6,7,11 and 12 of the petition and also that the votes have been improperly rejected and if accepted could have materially affect the result of the election. He is is also unable to prove that there has been non compliance of The Cantonment Act and Cantonment Electoral Rules, 2007 as alleged in the petition or that the circular issued on 17.5.2008 was not properly conveyed to the election petitioner which affect the result of the elections.
Issues are decided in favour of the respondent no.3 and against the election petitioner.
Issue no.9 Whether the election of the respondent no.3 is liable to be set aside under the electoral rules and the petitioner is liable to be declared duly elected in place of respondent no.1 as the member of the Cantonment Board from Ward No.3?
Onus of proving this issue was upon the election petitioner. In view of my findings with regard to the issues no. 5 to 8 which are not being repeated for the sake of brevity, I hereby hold that the election of the respondent no.3 as Member of the Cantonment Board -: 43 :- from Ward No.3 is not liable to be set aside nor is the petitioner is liable to be duly elected. Issue is decided in favour of the respondent and against the petitioner.
Relief:
In view of my findings with regard to the various issues, I hereby hold that the petitioner has not been able to prove and substantiate the allegations made against the respondents in para 5,6,7,11 and 12 of the petition and also that the votes have been improperly rejected and if accepted could have materially affected the result of the election. He is is also unable to prove that there has been non compliance of The Cantonment Act and Cantonment Electoral Rules, 2007 as alleged in the petition or that the circular issued on 17.5.2008 was not properly conveyed to the election petitioner which affects the results of the elections.
The election petition is hereby dismissed. Parties to bear their own costs. The original record of the election, if any, is directed to be returned. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 6.3.2010 ASJ (NW)-II: ROHINI -: 44 :- -: 45 :- 6.3.2010 Present: Election petitioner in person. None for the respondents. Arguments have been heard by the undersigned and
therefore, in view of the directions of the Delhi High Court bearing No. 24/DHC/Gaz./G-1/VI.E.2 (a)/2010 dated 8.2.2010, orders were to be pronounced by this court.
Today, vide my separate detailed order dictated and announced in the open court, but not yet typed, the election petition is hereby dismissed. Parties to bear their own costs. The original record of the election, if any, is directed to be returned. File be consigned to Record Room.
(Dr. Kamini Lau) ASJ(NW)-II: Rohini 6.3.2010 -: 46 :-