Madras High Court
The vs D.Balachandran). Hence on 30 April, 2010
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2010 CORAM THE HON'BLE MS. JUSTICE R.MALA A.No.6804 of 2009 in C.S.No.1137 of 2009 ORDER
The applicants as plaintiffs filed C.S.No.1137 of 2009 for the following reliefs:
(a) for a declaration that the Elections for the Governing Council of the first defendant-Association of Surgeons of India (first respondent in A.No.6804 of 2009) for the period 2010-2012 for which the counting took place on 17.11.2009 and 18.11.2009, as illegal, void ab-initio and otherwise unsustainable in the eye of law;
(b) consequently to grant a mandatory injunction directing the first defendant/first respondent to conduct fresh Elections for electing its Governing Council members for the period 2010-2012, under the supervision of a Commissioner/Officer/Observer, appointed by this Court and
(c) for permanent injunction restraining the defendants 7 to 49 from taking over/assuming office as members of the Governing Council of the first defendant/Association for the period 2010-2012 and consequently to restrain the defendants 7 to 49 from discharging their duties as members of the Governing Council of the first defendant, on account of the Elections being illegal and non-est in the eye of law.
2. Along with the suit, the applicants/plaintiffs have filed this application for the following reliefs:
(a) to send for forensic examination all the Election Records pertaining to the Governing Council Elections for the period 2010-2012, including the actual ballot papers (both valid and those that have been declared invalid), declaration forms, envelopes, etc;
(b) to check whether the envelopes have been opened and re-sealed prior to their opening during the counting held on 17.11.2009 and 18.11.2009;
(c) to verify postal seal on each envelope and check whether it matches with the place of origin or the postal seal of the area from where the envelope was sent;
(d) to verify the ink on the invalid ballot papers and report whether there is more than one ink used for the same State Chapter;
(e) to verify if the inks on the invalid ballot papers for the States of Bihar, Tamil Nadu, Andhra Pradesh, Rajasthan and the Northern Chapter, match with the ink of the valid votes for the State of West Bengal and
(f) to verify whether there is/are common ink(s) amongst the invalidated ballot papers.
3. The averments in the said application are as follows:
(a) The first respondent/D1-Association is an Association of Surgeons, from all over the country, and it is a Registered Society under the Tamil Nadu Societies Registration Act. The entire Elections for the Governing Council of D1/Association for the period 2010-2012 took place in complete violation of the Memorandum of Association and Manual of Election Bye-Laws of the first respondent/D1-Association. As per Bye-Law 21 of the Election Bye-Laws, the ballot papers and other materials would be destroyed at the end of one month from the date of counting, unless there is an order of a competent Court to the contrary.
(b) Since almost 21% of the available votes have been rejected as invalid, it is unlikely that the entire Election process seems to have been so confusing and complex that almost 21% of the most highly educated surgeons in India have not understood the process of electing their Association's Governing Council. It is therefore obvious that most of the votes have been "made" invalid and rejected. All the applicants/plaintiffs have lost by a margin, which is less than the number of invalidated votes for their respective States. The outcome for the applicants/plaintiffs would have been different, had the votes not been "made" invalid.
(c) The applicants/plaintiffs have a strong prima facie case, as the results for the Elections have been declared only on the basis of about 4500 votes, when in fact, more than 6000 members' votes had been cast and if the valid votes, which have been "made" invalid at the instance of respondents/defendants 2 to 6, are taken into consideration, then the applicants/plaintiffs have a fairly good chance of being the Governing Council Members of the first respondent/ D1-Association. The entire Election is vitiated by numerous illegalities.
(d) There has been a mass rigging of votes and manipulation of the ballots in favour of the respondents/D7 to D49, at the instance of the respondents/D2 to D6 and the storage of records as contemplated by Bye-law 20 of the Election Bye-Laws, has not been adhered to by respondents 2 to 6. The respondents 2 to 6 have their power as the Election Officer, Observer and Tellers to manipulate the votes. During the time of counting, there was a large number of invalid votes being declared, something which has never happened in the past 70 years history of the first respondent/D1-Association and it requires immediate investigation.
(e) The respondents 2 to 6 paid no heed to the concerns and proceeded with the declaration of the results. One of the candidates from Tamil Nadu, Dr.N.T.Srinivasan even gave written complaint dated 18.11.2009 and 20.11.2009 to the second respondent/D2 (President/Election Officer), stating that there had been violation of the procedures as contemplated in the Election Bye-Laws of the first respondent/D1 Association. Dr.N.T.Srinivasan was leading the tally with a large margin, when the counting suddenly stopped and the reason for such stoppage as cited by the second respondent/D2 was an unexplained "computer error" and re-counting was again started from the first, at the instance of the second respondent/D2 and when the same was objected to by Dr.N.T.Srinivasan, the second respondent/D2 paid no heed to the same and he also did not record the objections as contemplated in the Election Bye-Laws. This callous attitude of the second respondent/D2 raised many an eye-brow.
(f) One of the Tellers, Dr.S.K.Shukla, left the premises of the first respondent/D1 amidst the commotion to catch his flight back to Indore. While he was about to board his flight, he was summoned back by the second respondent/D2 as a re-count with the same computer system and software, was being ordered. Dr.S.K.Shukla returned to the chaos after being forced to miss his flight. Inspite of severe opposition, written as well as verbal, the second respondent/D2 announced that the computer problem was "fixed" and went ahead and declared the results after the re-count was completed around 4 am on 18.11.2009.
(g) In addition to the written complaint given by Dr.N.T.Srinivasan, the third applicant/plaintiff also sent an E-mail, dated 18.11.2009 to the second respondent/D2 requesting for clarification regarding the tally of votes. However, the second respondent/D2 replied vaguely to the same after about 12 days of receipt of the E-mail, by merely extracting one of the Election Rules and did not give any clear-cut reply to the third applicant/plaintiff's request. The third applicant/plaintiff expressed his surprise to the manner in which the Elections had been held and vide his E-mail, dated 2.12.2009 requested the second respondent/D2 to send all the details of the Election process including the number of ballot papers issued, number of duplicates issued, total number of votes received, number of invalid votes, votes polled by different candidates and candidates declared successful. However, the said request is yet to be acted upon by the second respondent/D2.
(h) All the valid votes have been "made invalid by tampering with the envelopes have been opened by respondents/D2 to D6 or any person acting through them and have been tampered with/doctored so that the same is considered invalid. It is further apprehended by the applicants that the postal seals on the same have been forged by respondents/D2 to D6 and there has also been large rejection of votes on the ground of invalidity, as declared by the second respondent/D2 and deliberate indifference on the part of the respondents/D2 to D6 to follow the Rules governing the Election as contemplated in the Election Bye-Laws and hence, it is just and necessary to order that all the Election Records including the actual ballot papers (both valid and those than have been declared invalid), declaration forms, envelopes, are sent for forensic examination with the other reliefs prayed for in this application, as indicated above.
(i) Hence, it is contended by the applicants/plaintiffs that prima-facie case is in favour of the applicants/plaintiffs and the balance of convenience is also in their favour and prayed for allowing this application for the reliefs as indicated above.
4. The gist and essence of the counter affidavit filed by the second respondent/D.2, are as follows:
(a) Only the City Civil Court in the City of Madras, is having jurisdiction to entertain the case in respect of matters involving Societies registered under the provisions of the Tamil Nadu Societies Registration Act. The suit is bad for misjoinder of causes of action. Without the leave under Clause 14 of the Letters Patent, the suit is not maintainable.
(b) The allegations that "certain persons have masterminded a coup by ensuring large scale manipulations and rigging of ballots" is very irresponsible and reckless statement and very vague. The other allegation that there was no response to the complaints given by "certain contestants/members during and after the counting was completed" establishes complicity in the matter, is again a sweeping statement made and as there is nothing specific, the second respondent wholly denies such statements as false. None of the applicants herein have made any compliant and the so-called complaints, which fact is not admitted, have not challenged the Elections. The litigation is speculative in nature.
(c) The entire Election process is conducted in a very transparent manner. Incidentally, the counting process by computer has been done only in the last three years in view of large number of votes. During the process of counting, either the candidates or their representatives were present apart from the Election Officers, the President, Secretary and Treasurer.
(d) In the present case, the following is the course of events that took place:
(i) Printing of ballots and covers was done by M/s.TRS Forms and Services Pvt. Ltd., which is an ISO 9001 certified institution and has been doing this job for ASI since 2003.
(ii) Ballots were posted under Certificate of Posting with instructions to voters, as per format produced by the applicants.
(iii) Ballots were received at the Association Headquarters till 5 pm on 16.11.2009. All the ballots were numbered serially and entered in the Register before putting them into already sealed ballot box.
(iv) As the Election Officer, the second respondent closed the Register at 5 pm on the said date.
(v) Counting was started by the Election Officer at 9 am on 17.11.2009 in the presence of the President Dr.R.P.Srivastava, Secretary Dr.Arvind Kumar, Treasurer Dr.Dhore Patil, observer from Chennai Dr.Parimaljagan, the past President, and the Tellers--Dr.S.K.Shukla, Chief Editor of IJS from Madhya Pradesh, Dr.R.Shah, from Gujarat and Dr.Joginder Singh from Jharkhand.
(vi) In the presence of contestants and their representatives who chose to be present, the ballot boxes were checked for seal and then opened. The ballot covers (envelop "C") were taken out on the table and counted. The total matched with the number entered in MCER Ballot Covers (Envelop 'C'), then opened to take out "Declaration Form" and "Envelop A & B".
(vii) Declaration forms checked for name, address, membership number and signature by the member (voter). The ballots (Envelops A & B) received without declaration form or without signature, were rejected. The declaration forms were sealed separately and then counting of ballots started.
(viii) Envelops A & B were separated and opened to take out the ballots. Bundles of 100 ballots made for counting by computer. Ballots then passed through optical reader (OMR) and the number of votes received in every round by each candidate displayed on screen. The ballots relating to the Presidential Election were counted first and result declared.
(ix) During the counting of ballots for the Governing Council members, discrepancy was observed in the ballots relating to the States of Maharashtra and Tamil Nadu, which was not seen in other States. This was brought to the notice of the service provider above named, who noticed a technical snag due to programming, because of which counting was improper in the States where there were more than nine contestants. The counting was stopped to rectify the snag and started again after correction in the computer programming.
(x) After completion of the counting, the result was declared in the presence of Tellers.
(e) It is stated that all the complaints have been looked into and for instance, Dr.Pannalal Shal of Bihar Chapter who had lost, on protest, checked the correctness by cross-checking the votes and found the same to be correct and accepted his defeat. Similarly, one Dr.Vasant Pawar, a presidential candidate, also gave a letter and re-counting which was done and found that he had indeed lost the Election.
(f) It is pertinent to note that it is the same service provider who has been providing such services in the past three years ever since the counting has been computerised. However, all the overseers as well as all concerned, were wholly satisfied after cross-checking the scanner after it was set right. It is a fact that all people, in view of the delay, had to miss their flight. So, the allegation that Dr.Shukla left for the airport and had to be re-called, was denied. The counting was ultimately completed around 4 a.m. and the results declared.
(g) So far as Dr.N.T.Srinivasan is concerned, a protest was lodged by him only at 11.30 p.m. only after he saw that he was losing. The Election Rules 1 and 2 as set out in the instructions for voting, is a complete answer to the protest and the said Dr.N.T.Srinivasan is stopped from challenging the results.
(h) The details sought by the third plaintiff in respect of the details of the Election process, etc., are meant only for the General Council which met on 26.12.2009 where the details were presented and there was no objection from any corner.
(i) As far as the ballots are concerned, the ballots of the Governing Council members and the Presidential candidates have indeed been put into separate covers and sealed. However, both covers have been put into one single box for convenience.
(j) The results were initially placed before the Governing Council and before the General Body also, which took place on December 26th and 30th respectively. Insofar as the protest of Dr.Kamalakanta Panigrahy is concerned, it is wholly baseless, as there were four representatives from the State of Bihar overseeing the Election process and no person raised any objection whatsoever. As far as the State of Orissa is concerned, there was no contest at all, as Dr.B.N.Mohanty and Dr.Pramod Kumar Malick were declared elected unopposed.
(k) One of the applicants from Northern Chapter withdrew his protest. It is further submitted that as days have gone by, as against the past where only letters were sent to the Electors by the contestants, in recent times, there has been extensive use of electronic media in the form of SMS and E-mails for the purpose of canvassing which brings pressure on the voters, who in all probability, make markings through the period the ballot papers are lying with them. The ballot papers lie with the Electors for over a month in terms of the Rules, which gives enough room for the Electors to keep adding to the votes and probably giving room for mistakes also. There is also a possibility of the ballots being sent from a place different from their place of residence as many of the members are known to be constantly travelling. Unless there has been a gross abuse of election procedure, the applicants would not be entitled to any relief. The assumptions of different inks being used in a ballot, etc., can be no ground to hold the ballots invalid. The applicants are not entitled to any relief, much less sending the papers to the Forensic Sciences Department to examine the documents.
5. The pith and substance of the additional counter affidavit filed by the second respondent/D2, are as follows:
(a) All the ballots were received either by post or by courier and these are noted in a register maintained by the Association. Before opening the ballot boxes, the same were inspected by the people present, viz., candidates or their representatives and who have confirmed the same to be in order. Similarly, such persons who were present have also confirmed that the counting process was satisfactory.
(b) The invalid votes are only in three chapters, viz., Andhra Pradesh, Bihar and Tamil Nadu and that the invalid votes may have some relevance and that too if all of them were to be for the benefit of the losing candidate, which position could only be very very remote. In Tamil Nadu, the first losing candidate has not challenged the election and the second plaintiff, who is from Tamil Nadu, could not benefit from the relief even if all the invalid votes were assumed in his favour. Even that is only on the assumption that almost all the votes are presumed in favour of the first and third plaintiffs, which, as already mentioned would be a very remote possibility.
(c) After apparently invalid votes are segregated, the other ballots are taken in lots of 100 and passed through the Optical Mark Reader (OMR), which after scanning all the ballots indicates all valid votes and the invalid votes. The valid votes are then indicated against the respective names. However, the OMR does not physically separate the invalid votes, but only keeps a count of them.
(d) After the counting, the ballots have been kept in bundles of 100 and kept in the sealed box. Therefore, it would not be possible to locate all the invalid votes, unless all the ballots are examined. Such an exercise would not be in the interest of the Association and the candidates themselves as a secrecy of the ballot, would be wholly lost, resulting in several complications and would prejudice the interest of the wining candidates.
(e) If the invalid votes are identified, it would be impossible to find out which is the offending mark and there would be marks more than the ones prescribed and it would naturally have affected all the candidates marked therein. Such examination even if done, would not help in reaching any conclusion with regard to the person in whose favour the votes wound enure. So, the exercise would therefore be wholly futile.
(f) While it would be important to check on the functioning of the system in future, it would be futile to go through the process of comparing the inks in the alleged invalid votes, as it would in no way further the cause of any person, much less the applicants. However, in view of the cross-checks that had been provided even earlier, the relief sought for by the applicants cannot be granted, because, no conclusion could be arrived at by such process and the same is also not contemplated in law/rules.
(g) So far as the Bihar chapter is concerned, there was even a re-counting done at the behest of one of the candidates and found to be correct. The Rules made it absolutely clear that objection could not be entertained retrospectively, as all the candidates were given the liberty to be present either in person or through a representative. Not having chosen to do so earlier, it is now not open to the applicants to challenge any part of the election. The elections have been totally fair and the applicants could not really have any genuine complaint.
(h) Out of 2-3 Governing Council meetings normally held, one has already been held on 26th to 28th March and the question of the elected members stopping to function does not arise, as the activities of the Association have to go on.
(i) The applicants having sought a declaration that the election itself was illegal, no relief could be granted at the interim stage, as all the reliefs would be consequential upon the validity or otherwise of the election. It having been demonstrated that under no circumstances could the entire election be challenged, the question of any other relief does not arise.
Hence, the second respondent prayed for dismissal of the application.
6. Learned Senior Counsel appearing for the applicants/plaintiffs would submit that the plaintiffs are contesting for the Governing Council Elections, that the Elections had been held for 2010-2012 and during the process of Elections, there had been some mal-practice. While comparing the previous Elections held for 2007-2009, the invalid votes polled in the present Elections, are very high. Learned Senior Counsel appearing for the applicants/plaintiffs culled out relevant portion of the typed set of papers filed by the applicants/plaintiffs. The invalid votes during the present Elections are more than 1/3 of the votes cast to the persons who succeeded in the Elections. He further submitted that since the voters are the Surgeons/Doctors, they are all well educated people and so, there is a suspicion for declaring the votes as invalid. So, there is suspicion that the valid votes are made as invalid, to help the other persons being selected. So, he prayed for sending the invalid votes to the Forensic Department to find out and to verify the inks used in the ballot papers and with regard to the postal seals in the covers/envelopes, whether the covers/envelopes have been opened before it was opened on 17.11.2009 and 18.11.2009, i.e. on the dates of counting. Learned Senior Counsel further submitted that Bye-laws 19(g) and 21 of the Election Bye-laws have been violated during the process of Elections. He prayed for allowing the application.
7. Repudiating the said contentions, learned Senior Counsel appearing for respondents 1 and 2/D1 and D2, would submit that it is true that there are invalid votes for the Elections held for 2010-2012, which are considerably high compared to the previous Elections, but it is not the sole ground for sending the ballot papers for examination by Forensic Department. Further, he submitted that Section 45 of the Indian Evidence Act deals with the expert's opinion and it is only a weak piece of evidence. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that no one has sworn to any affidavit stating that with the knowledge, the ballot papers have been tampered and no one has filed any single document to show that the envelopes containing the ballot papers were tampered with and it was made as invalid ballot papers and the same could be decided only by letting in oral evidence during the course of trial, and if necessary, the ink used can be verified even during the course of trial by the Court itself, and hence, no purpose will be served if the application as prayed for is allowed.
8. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that at the time of counting for the past three Elections, same procedure had been adopted and the Optical Mark Reader (OMR) had been used.
9. Hence, learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 submitted that both valid and invalid votes were segregated and the other ballots are taken in lots and hundreds of papers pass through the OMR, which after scanning all the ballot papers, indicates all the valid votes and the invalid votes and the votes are then indicated against the respective names. However, the OMR does not physically separate the invalid votes, but only keeps a count of them. Learned Senior Counsel for the respondents 1 and 2/D1 and D2 further submitted that after counting, the ballot papers have been kept in hundreds of bundles, which are further kept in a sealed box, which has been deposited before Court. He further submitted that the bundles contain both valid and invalid votes and they are mingled and if they have to be sent to Forensic Department, they have to be first segregated as invalid and valid votes and the secrecy of the ballot papers will be lost.
10. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that the difference in the ink could be seen even by the Court and the parties to the proceedings and also the Advocates concerned and there is no need to send the same to the Forensic Department to find out whether different ink had been used. He further submitted that the ballot papers have been received by each voters and the ballot papers are with them for nearly a month. In such circumstances, as soon as any candidate canvassed before a voter, they might have used different pens while making the "tick" mark in the ballot papers and merely because the ballot papers contain different ink mark, it will not invalidate the ballot papers. In support of his contentions, learned Senior Counsel for the respondents 1 and 2/D1 and D2 relied on a decision of this Court, reported in 2008 (1) CTC 491 (Gopal.S. Vs. D.Balachandran). Hence, all the aspects have to be decided only on the basis of the oral and documentary evidence and it is now premature to decide and send the ballot papers and other connected Election records to the Forensic Department for their opinion.
11. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 further submitted that in Andhra Pradesh and Bihar only, the invalid votes are to be taken as valid votes, and the fourth man, i.e. who was defeated, has to be declared elected. There is no evidence to show that all the invalid votes were polled in favour of the person who was defeated marginally. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 prayed for dismissal of the application.
12. While considering the arguments of both sides, it is seen that, admittedly, the first respondent/D1 is an Association of Surgeons of India and it is a registered Association and the members are all well educated Surgeons. There was no dispute in respect of the Elections of President and only dispute is in respect of the Elections of the members of the Governing Council. The respondents 3 to 49 were elected as the members of the Governing Council and they have already assumed office as members of the governing body, which is an admitted fact.
13. In pages 56 to 59 of the typed set of papers filed by the applicants/plaintiffs, they deal with the regarding the places of Andhra Pradesh, Bihar, Delhi, etc., and the candidates contested in the Elections to the concerned Chapters and the details of how many persons elected and the votes secured invalid and votes polled, etc., are also mentioned.
14. At this juncture, it is appropriate to consider the Election results, which is at pages 35 to 37 of the typed set of papers filed by the applicants/plaintiffs, regarding the Governing Council Election 2007-2009, and for Assam, only two votes were invalid, for Delhi, one vote was invalid, Gujarat--11 votes invalid, Jharkhand--8 votes invalid, Kerala--7 votes invalid, Andhra Pradesh--4 votes were invalid, Northern Chapter--7 votes invalid, Orissa--15 Votes invalid, Rajasthan--3 votes invalid, Tamil Nadu and Pondicherry--8 votes invalid, Uttar Pradesh--39 votes invalid and West Bengal--5 votes invalid. But, in the present Elections held in 2009, for Andhra Pradesh--494 votes invalid, for Bihar--1269 votes invalid, for Delhi--367 votes invalid, for Karnataka--112 votes invalid, for Kerala--76 votes invalid, for Madhya Pradesh--259 votes invalid, for Rajasthan--463 votes invalid, for Tamil Nadu and Pondicherry--835 votes invalid, for Uttar Pradesh--30 votes invalid, for West Bengal--7 votes invalid and for the Northern Chapter--378 votes invalid.
15. Admittedly, the invalid votes are merely 1/10 (approximately) of the votes polled. With regard to Bihar, invalid votes are 1269 and one of the candidates of Bihar, namely Dr.H.N.Bharadwaj, he secured 1941 votes and he was ultimately defeated in the Elections. Admittedly, the invalid votes in general are high compared to last Elections. Merely because the invalid votes are high, it may not be reason for sending the invalid votes and other Election records for verification by the Forensic Department.
16. It is appropriate to extract Section 45 of the Indian Evidence Act, as follows:
"Section 45: Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts."
17. Expert opinion is not a substantive piece of evidence. It is only a weak piece of evidence. The opinion of the expert can be corroborated by its author. Before sending the Election materials, the ballot papers, and other relevant documents to Forensic Department, it is the duty of the Court to decide as to whether, prima-facie, the applicants/plaintiffs have proved that there was mal-practice. In the present case, there is no evidence to show that there was any mal-practice and no scrap of paper has been filed by the applicants/plaintiffs to support their plea with regard to the same.
18. While considering the affidavit/counter affidavit, it is seen that the procedures for counting has been given in Bye-law 19(g) of the Election Bye-laws, which finds place in page 23 of the typed set of papers filed by the applicants/plaintiffs and it reads as follows:
"19. Scrutiny and counting of votes:
.. ...
(g) The Chief Electoral Officer will send a copy of the results (including record of objections and decisions) to each Member of the Governing Council, Results should include the number of Ballot Papers issued (duplicate separately), total number of votes received, invalid votes, votes polled by different candidates and candidates declared elected. Simultaneous the results are also sent to all contestants."
19. Further, as seen from page 37 of the typed set of papers filed by the respondents 1 and 2/D1 and D2, admittedly, the counting took place on 17.11.2009 and in the said page 37, the President (Dr.R.P.Srivastava) and the Election Officer (Dr.N.K.Pandey) of the Association of Surgeons of India stated that, "We have inspected the Ballot Boxes and it is in order and the same may be opened with the instruction of the Election Officer in front of the candidates and members present." The members present also have signed, as seen from pages 37 and 38 of the said typed of papers filed by respondents 1 and 2/D1 and D2 and in pages 39 and 40 of the same typed set of papers, the Members present, have singed and stated to the Election Officer of the Association of Surgeons of India that, "I have attended the counting process to day at ASI Hqrs. I am satisfied with the electoral procedure till now and I had examined the Ballot Boxes which were found in order."
20. It is accepted by the respondents 1 and 2/D1 and D2 that there was discrepancy with regard to the State of Maharashtra and Tamil Nadu during counting and as seen from page 42 of the typed set of papers, filed by the respondents 1 and 2/D1 and D2, which is the letter dated 17.11.2009 addressed by the TRS Forms and Services Private Limited to the Election Officer, Election 2009, Association of Surgeons of India, Chennai, they have stated that, "The recount was commenced and completed the same night." Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 would rely upon pages 43 and 44 of the same typed set of papers and the genuineness of the documents found in the said pages 43 and 44, is questionable, because it does not contain any signature of any official and there was also no indication as to the authority who issued those documents and it is not known as to whether those pages 43 and 44 were issued by T.R.S. Forms and Services Private Ltd. and hence the same cannot be taken into consideration.
21. Page 45 of the typed set of papers filed by the respondents 1 and 2/D1 and D2 is a letter written by one Dr.Rajesh Kumar of Mazaffarpur (Bihar), to the President of the Association of Surgeons of India, and he was not the contesting candidate and in the said letter, he has complained about the mal-practice and the irregularity in the Elections of the Association of Surgeons of India and he further stated about the invalid votes from Bihar and that more than 1200 votes were declared invalid against 6000 votes polled, which was roughly 20% of the total votes polled. He has further stated therein that we cannot expect casting of 20% invalid votes from highly literate and well qualified group of society. He also stated that it seems that 20% votes were made invalid to favour same candidates which ultimately affected the election result and it had grossly affected the moral of ASI members and hence, he requested the President of ASI to enquire in the matter and take appropriate measures to prevent such type of rigging and mal-practice of ASI Election. Admittedly, the respondents 1 and 2/D1 and D2 have not filed any document to show as to what reply the ASI has given to the said letter of Dr.Rajesh Kumar.
22. Learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 relied on pages 1 to 36 of the typed set of papers filed by the respondents 1 and 2/D1 and D2, to show that from the day one, i.e. on 10.10.2009 till 16.11.2009 at 5 p.m., so many register of ballot covers have been received.
23. Page 41 of the typed set of papers filed by the respondents 1 and 2/D1 and D2, would reveal that one Dr.Vasant Pawar has written a letter to the Election Officer of the ASI, stating that he had a doubt with regard to OMR-scanning machine of counting ballot papers of the President-elect post, and requested for re-counting the votes of the President Elections and he authorised one Mr.Sanjay Kadam, on behalf of him, to submit his objections.
24. So, during the Election counting, there was objection by the Presidential candidate and the Governing Council member Dr.Rajesh Kumar from Bihar Chapter has also given objection. Merely because objections have been received from the candidates, it will not be sufficient to send the ballot papers and other Election records to Forensic Department for examination.
25. Learned Senior Counsel appearing for the applicants/plaintiffs would contend that there has been violation of Bye-laws 19(g) and 20 of the Election Bye-laws. But that can be decided only at the time of trial and it is premature to decide as to whether the Election Rules/Bye-laws have been flouted.
26. The applicants/plaintiffs ought to have proved prima-facie that there was mal-practice in the process of Elections and since as per pages 37 to 40 of the typed set of the defendants, some of the candidates and their agents were present during counting, none has filed any affidavit showing that the valid votes were made invalid for facilitating the candidates to be elected of their choice. In the above circumstances, I am of the view that it is premature to send the ballot papers and other election records to the Forensic Department for examination.
27. At the time of sending the ballot papers, the Declaration Form, as could be seen from page 38 of the typed set of papers filed by the applicants/plaintiffs, the instructions of the Associations of Surgeons of India, as could be seen from the same typed set at page 39, the ballot papers as could be seen from pages 41 to 47, etc., were sent to each voters/candidates. Admittedly, the candidates/voters can exercise their franchise to the number of candidates mentioned as against each Chapter. The counting was held on 17.11.2009 and on 20.11.2009, one Dr.N.T.Srinivasan, who was one of the candidates, secured 2079 votes and there are 835 invalid votes in respect of Tamil Nadu and Pondicherry, from which Chapter the said Dr.N.T.Srinivasan belongs to and nearly 50% of the votes were cast in his favour and he should have been declared elected and he gave a complaint dated 20.11.2009 to the Election Officer of the ASI, which is evident from page 48 of the typed set of papers filed by the applicants/plaintiffs.
28. The genuineness of the process of elections has to be decided only after segregating the valid and invalid votes and after perusing the invalid votes to find out as to whether they were made as invalid, and whether different ink had been used and whether the invalid votes were tampered with or not, all have to decided only at the time of letting in oral and documentary evidence during the course of trial.
29. It is seen that one Dr.N.K.Pandey, the Election Officer (D1) has sent a reply regarding the results of the Elections of the President and also the Governing Council members, and he sent E-mail on 24.11.2009 to various persons, as could be seen from page 53 of the typed set of papers filed by the applicants/plaintiffs, and the elected candidate's name alone had been mentioned therein in respect of various Chapters/places.
30. One Dr.T.Narayana Rao, who was one of the candidates who was defeated in a margin of 185 votes (2866-2681), by E-mail dated 18.11.2009 to ASI, which is evident from page 60 of the typed set of papers filed by the plaintiffs, and he sought for some particulars regarding difference of votes between 3rd and 4th candidate of Andhra GC Ballot, and from page 56 of the same typed set of papers, regarding the election results, it is seen that in respect of Andhra Pradesh, the invalid votes are 494 and in respect of Dr.T.Narayana Rao, the votes secured was 2681 and the immediate preceding candidate Dr.G.Suresh Chandra Hari secured 2866 votes and that the said T.Narayana Rao may be declared elected.
31. In the above circumstances, it is necessary to peruse the invalid and valid votes, which shall be done during the course of trial. The respondents 1 and 2/defendants 1 and 2 have not so far filed any written statement in the suit.
32. It is also seen that one Dr.Kamalakanta Panigrahy from Orissa Chapter, sent E-mail on 1.12.2009 to ASI, Chennai, stating that huge number of vote has been declared invalid from Bihar, Orissa, WB and some other States, which was not expected from Surgeons and he felt that there was some conspiracy behind it and hence, to keep up the democracy, he requested to recount manually/re-verification may be ordered for the benefit of the Association. This E-mail dated 1.12.2009 is before the date of filing of the suit, i.e. the suit was filed on 16.12.2009.
33. It is also to be noted that Dr.T.Narayana Rao, who lost his election only by a margin of 185 votes as noted earlier, has sent a reply on 2.12.2009 by way of E-mail to the ASI, stating that even though he sought for information on 18.11.2009, he received E-mail reply only after 12 days and he sought for further information. A reply has also been sent by the ASI to Dr.T.Narayana Rao, by the Election Officer-D2. These facts could be seen from page 62 of the typed set of papers filed by the applicants/plaintiffs.
34. While perusing the documents filed in the typed set of papers, both by the applicants/plaintiffs and by the respondents 1 and 2/D1 and D2, regarding the Elections between 2007-2009 and 2010-2012, the invalid votes declared in 2010 are very high, that too, educated Surgeons have not been able to exercise their franchise properly and since there were invalid votes, they gave objections from all corners.
35. The applicants/plaintiffs filed the suit for declaration that the election for the Governing Council of the first defendant for the period 2010-2012, as null and void and sought for re-election and other reliefs. Pending suit, this application is filed seeking for the relief of sending the Election records to Forensic Department and other consequential reliefs.
36. To find out whether there was any mal-practice in the process of Elections, the applicants/plaintiffs seek for forensic examination of all the election records pertaining to the Governing Council election for the period 2010-2012 including all ballot papers (both valid and those that had been declared invalid), declaration forms, envelopes and to check whether the envelopes have been opened and re-sealed prior to their opening during the counting held on 17.11.2009 and 18.11.2009. After this Court went through each and every papers filed by the parties, no blanket order could be passed for sending all the election records to Forensic Department to find out as to whether they have been previously opened before 17.11.2009 and 18.11.2009. That cannot be decided by the Forensic Department.
37. With regard to verification of postal seal on each envelope and to check whether it matches with the place of origin or the postal seal of the area from where the envelope was sent, it is to be observed that the Doctors/Surgeons have been travelling throughout the World and the envelopes could have been posted from any area. Merely because a Doctor at West Bengal Chapter has posted the ballot papers, in Chennai, it will not invalidate the same. In the above circumstances, that will not in any way help the applicants/plaintiffs.
38. As already discussed above, the ballot papers have been sent to each voter/candidate and when they have atleast 30 days, they ought to have cast vote for each and every Chapter and as soon as any candidate approaches the voter, he can cast his vote to make a "tick" mark and it is not mandatory on the part of the voter to use the same pen while casting the votes in favour of the candidates. Merely because different pens were used, it will not invalidate the ballot papers. Hence, the prayer in the application regarding the verification of the ink on the invalid ballot papers and for reporting whether there is more than one ink used for the same State Chapter, to verify if the inks on the invalid ballot papers for the States of Bihar, Tamil Nadu, Andhra Pradesh, Rajasthan and the Northern Chapter, match with the ink of the valid votes for the State of West Bengal, is liable to be rejected.
39. In this regard, learned Senior Counsel appearing for the respondents 1 and 2/D1 and D2 relied on the decision of this Court reported in 2008 (1) CTC 491 (Gopal.S. Vs. D.Balachandran), in which, it was held as follows:
"Age of ink cannot be determined by expert with scientific accuracy. Even then, if there is use of old ink on purpose, it would result in only further confusion and create a dent in the opinion of the expert. No necessity, therefore, for sending disputed cheque admittedly signed by the drawer, to an expert for opinion."
40. From the said decision, it could be seen that the expert is not competent to analyse the age of the ink used. In the present case, the applicants/plaintiffs have not come forward with the application to ascertain the age of the ink used in the ballot papers. So, the above citation is not applicable to the facts of the present case.
41. To verify whether there is common ink amongst the invalidated ballot papers, the same could be easily found out by any normal prudent man and no expert opinion is necessary.
42. Considering all the above aspects, without any documentary evidence or supporting evidence and as the agents of the applicants/plaintiffs or the respondents/defendants have not filed any document by way of separate affidavit, alleging mal-practice, I am of the view it will be premature to send the Election records and other related documents to Forensic Department for examination to find out the necessary query/issues raised by the applicants/plaintiffs.
43. Moreover, the Election is a secret process. Before filing of the written statement of the defendants in the suit and without raising any defence, it is premature to send the election papers for Forensic Examination. If necessary at the time of letting in oral and documentary evidence, during the course of trial, the applicants/plaintiffs are at liberty to approach this Court for the same relief.
44. With the above observations, the application is dismissed.
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