Delhi District Court
Lalendra Upreti vs . Indian Radiological And Imaging ... on 29 January, 2019
CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. 29.01.2019 1.
Vide this order, I shall dispose off the application under Order 39 Rule 1 & 2 CPC moved by the plaintiff for grant of interim relief.
2. Case of the plaintiff in brief is that plaintiff is a member of defendant no.1 Indian Radiological and Imaging Association (IRIA) a registered society and had contested the elections of the association for the post of Chairman, Indian College of Radiology and Imaging (ICRI) for the year 201920. Defendant no.2 is the Election Committee and defendant no.5 to 10 are the members of the Election Committee. The elections for the post of President, Vice President, Secretary General, Editor in Chief of Indian Journal of Radiology and Imaging (IJRI), for office bearers of ICRI for the year 201920 were notified in June 2018 and plaintiff contested for the post of Chairman ICRI, Delhi. Nominations were received till 31.08.2018 and polling took place from 29.10.2018 till 08.11.2018 and counting was done on 10.11.2018 and plaintiff stood elected to the post of Chairman, Delhi ICRI but the defendant no.2 the Election Committee did not pronounce the results of the polling for reasons best known to them. In the meeting held on 10.11.2018, some complaints were received from some losing candidates regarding faulty Evoting system and defendant no.3 who CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 1 /13 is the President declared that revalidation of evoting system will be carried out by a third party. It is stated that M/s New Era Systems Pvt. Ltd. is conducting the evoting process since 2010 and no complaints were ever received and the evoting system is a secure and safe system which cannot be hijacked by anyone. On 11.11.2018, the Central Council passed resolution for revalidation of evoting system by a third party. Plaintiff along with two other contestants served a legal notice dated 15.11.2018 to the defendants calling upon them to declare the election results but to no avail. The defendant no.1 Association engaged Net Access India Ltd. for investigation of evoting done by M/s New Era System Pvt. Ltd. and New Era also wrote an open letter email dated 07.12.2018 to all members informing about the fairness of the election.
3. As per plaint, on 09.12.2018, extraordinary Central Council meeting was held which illegally decided that voting would be done again. It is alleged that the evoting process is safe as all eligible voters have to first themselves get registered in the evoting system and thereafter one time password (OTP) is sent to the registered mobile of the voter using which the voter can login and cast his vote. It is stated that neither the Election Officer nor the Central Council has any power to withhold the election process nor to pass resolution to revalidate the evoting process or revoting of the election as it is against the Constitution and Bye laws of defendant no.1 Association. Plaintiff also called upon the defendants vide email dated 13.12.18 to declare the results vide but to no avail. Therefore, CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 2 /13 plaintiff has filed the present suit wherein he prayed for declaration of the decision of the Central Council meeting held on 11.11.2018 and 09.12.2018 for revalidation and repolling respectively as null and void and prayed for decree of permanent injunction to restrain the defendants from conducting repolling and with a further prayer to direct the defendants to declare the results of the election conducted on 10.11.2018. Plaintiff by way of present interim application prayed for the interim relief to restrain the defendants from conducting repolling and to direct the defendants to declare the results with immediate effect.
4. Written Statement was filed by defendant no.1 and 4 and also separately by defendant no.3. In the written statements, defendants had taken the stand that defendant no.1 Association comprises about 12400 Radiologists from all over India who are members of the Association and Central Council is the Executive Body of the Association. They admitted the conducting of the elections as stated by the plaintiff and defendant no.5 was appointed as a Chairman of the Election Committee/Defendant no.2 with defendant no.6 to 10 as members. It also admitted that M/s New Era System Pvt. Ltd. has been providing the services for casting evotes since 2010. The total number of Evoters was 5644 and total ballot papers received were 621 and total invalid ballot papers were 35 and total E voting was 5104.
5. Defendants further stated that out of the total 19 Contesting Candidates for different posts, 11 Candidates complained expressing CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 3 /13 irregularities in Evoting including four winning candidates as mentioned in para 6 of the written statement of defendants no.1 and 4. It is stated that Election Officer had collected the logs of Evoting from M/s New Era System Pvt. Ltd and kept the same in safe custody and because of uncertainities found in Evoting, the Central Council approved the re validation /scrutiny of Evoting but Ms. Priyanka Tomar of M/s Era System Pvt. Ltd. did not provide data /back end logs, source code and scripts of the Evoting to M/s Net Access India Ltd. or to the defendants. As per the earlier data provided by New Era Pvt. Ltd., the agency could ascertain unique IP addresses of the voters which were 5035 in number whereas Ms. Priyanka Tomar had earlier revealed to the Election Officer at the conclusion of Evote casting that total number of vote casted were 5102 and therefore, there was a discrepancy of 67 Evotes which had to be ascertained but no assistance was provided by the New Era System. Therefore, complaint was lodged with the police regarding data diddling /hacking and manipulation of electronic Evoting. New Era System also failed to provide full data base/ dump of Evoting module along with necessary details on the ground of privacy infringement. Defendants justified the decision of the extraordinary Central Council Meeting held on 09.12.2018 and stated that M/s DIL Detective International Ltd. had conducted the investigation and reported that two IRIA members Sh.O. P. Bansal and Sh.Jignesh Thakkar had been in connect with Ms.Priyanka Tomar during the election, preelection and revalidation process.
CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 4 /136. Defendants further took the stand that suit is bad for non joinder of necessary parties as all the members of the Central Council of defendant no.1(190 in number) are not made party to the suit. Further, there was no option of NOTA and total number of Evotes on all the posts are bound to be the same which did not happen in the present case and suit is also not maintainable in view of the provisions of Representation of Peoples Act. The reelection process can be done again within a period of 10 days under the supervision of a retired Judge to dispel any apprehension of hacking. It is further stated that as per Rule 44 (A) of The Constitution of the Association, it is the Election Tribunal who can adjudicate such dispute.
7. Plaintiff also filed the replication and reiterated his case as made out in the plaint.
8. I have heard Ld. Counsel for the parties at length and have gone through the record carefully.
9. Though no arguments were led by the defendants on the application under Section 8 of the Arbitration and Conciliation Act but since it goes to the root of the matter, it is imperative to address this issue. Rule 22 Part 1 of the Constitution which refers to Arbitration begins as under:
Rule 22 Part 1: "Any disputes or differences, solutions for which is not otherwise provided......".
10. It being the case, prima facie the present case is not hit by CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 5 /13 Section 8 of the Arbitration and Conciliation Act as Rule 44 (A) (vi) of Part 3 of the Constitution provides that election disputes, if any, will fall under the jurisdiction of the court in place of action (Delhi). This being the case, and considering the fact that matter pertains to the non declaration of the election results, prima facie, it cannot be said that the suit is hit by Section of the Arbitration and Conciliation Act 1996.
11. Perusal of Rule 17 of The Constitution of IRIA reflects that there shall be a central council having exofficio and elected members. Rule 19 provides that the Central Council shall administer day to day affairs of the association in accordance with its constitution, rules and bylaws. The conduct of the elections for the various posts of office bearers as well as for the post of Chairman, Indian College of Radiology and Imaging (ICRI) for the year 201920 and plaintiff contesting for the post of Chairman of ICRI is not disputed.
12. The conduct of polls in two modes (i) by paper ballot and (ii) by electronic voting is also not in dispute. Admittedly, New Era System Pvt. Ltd. has been providing the services for electronic voting since the year 2010 and without any objection or complaint. The election officer Dr.Pushpraj Bhatele duly informed the procedure for the evoting vide email dated 30.10.2018 and the various steps for evoting were made known to the voters like accessing the website www.iria.in, clicking evoting option, filling the requisite data, password generation on the registered mobile number of voter by which to cast the vote. Also, answer to a secret CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 6 /13 question is another mechanism to ensure secrecy.
13. It is not in dispute that if the result is declared as such, plaintiff would stand duly elected to the post of Chairman, Indian College of Radiology and Imaging (ICRI) Delhi having secured 2077 votes (including 1993 evotes) and his nearest rival Dr. Pragati Sinha secured 1967 votes (including 1529 evotes) with third contender Dr. M. D. Rahalkar getting 1622 votes (including 1571 evotes). The Election Committee did not declare the election results citing certain complaints received from candidates complaining faulty evoting system. Four candidates Dr. Amel Antony, Dr. Asutosh Dave, Dr. Mahesha B. M. and Dr. Ramesh Chander who would otherwise stand to win have also lodged complaints. Perusal of the copies of the complaints nowhere shows any firm basis on which the complaints were made.
14. Ld. counsel for plaintiff argued that no complaint was received by the defendant no.1 Association during 10 days of evoting by even a single member or that someone else has casted his vote or that a voter was unable to vote. The defendant no.1 engaged Net Access India Ltd. for investigation who filed its interim report on the ground of insufficient data being provided by M/s New Era Systems citing non cooperation on their part. Ld. Counsel for plaintiff has further argued that as per Rule 41 Part 3 of the Constitution, the elections would be conducted through evoting system which was done and only those persons who could not participate in evoting could participate by paper ballot. She argued that same Agency CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 7 /13 has been conducting the evoting process since the year 2010 without any complaint and there was not any infirmity in the evoting process and the Central Council does not have any power to withhold the declaration of the election results and revoting can only be done under authorization from General Body. She argued that plaintiff has prima facie case in his favour and balance of convenience lies in his favour and shall suffer irreparable loss if the defendants do not declare the results of the election and go for revoting. Therefore, Ld. Counsel for plaintiff prayed for grant of interim relief.
15. On the other hand, Ld. Counsels for the defendants argued that grant of interim relief shall tantamout to grant of final relief which cannot be done at this stage and there is sufficient material on record which suggest hacking of evoting process. They relied upon P. Subbarao; R Damodar Vs. Andhra Association, 2008 LawSuit (Del) 742 in this regard. Perused the same. They argued that already complaints with the police has been lodged. Ld. Counsel for defendants further relied upon Supreme Court Bar Associations & Ors Vs. B. D. Kaushik (2011) 13 SCC 774; Mahender Singh Gill Vs. The Chief Election Commissioner & Ors. AIR 1978 SC 851. Perused the said judgments. However, Ld. Counsel for defendants has failed to point out as to how the present case falls within the purview of the Representation of People Act 1951 and which provision thereof is under challenge.
16. During arguments, the demo of Evoting process was shown to CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 8 /13 the court and its soft copy was also filed. Ld. Counsel for defendants argued that while casting Evote, system demanded compulsorily casting of vote for the President elect and only after an option is exercised, the next page opens to enable casting vote for Vice President (two candidates), only thereafter, one can cast vote for Secretary General, only thereafter for Editor in Chief and then Chairman and then five members of Governing Body. Ld. Counsel for defendants argued that the system did not provide any mechanism to skip the vote and there was no option of NOTA and it was a faulty mechanism which led to the discrepancies in the number of votes. They further argued that Ms.Priyanka Tomar of the service provider New Era Systems Ltd had earlier revealed to the Election Officer that total number of votes casted were 5102 whereas the said Agency provided the data through which unique IP address of 5035 voters could be ascertained. It is argued that the back end logs of evoting had not been provided by the New Era System Pvt. Ltd. despite repeated requests and further argued that this court is not competent to adjudicate on the matter as the appropriate forum is the Election Tribunal as provided in the Constitution. Therefore, they prayed for dismissal of the interim application.
17. First of all, the question of competence of this court to adjudicate the dispute is taken up. Rule 44 (A) (iii) in Part 3 of The Constitution of the Association provides that no election shall be called in question except by an election petition presented to be National President within 15 days of the declaration of the results. Rule 44 (A) (iii) mentions CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 9 /13 the time period "within 15 days of the declaration of the results".
18. In the present case, the results have not been declared and in fact, the declaration of the election results is the subject matter of the dispute and therefore, prima facie, this court has the jurisdiction to entertain the present suit.
19. Elections are already over and the number of votes secured by each candidate are already in public domain. The copy of minutes of the Central Council Meeting dated 11.11.2018 clearly reflects that the plaintiff had secured maximum number of votes i.e. 2077 for the post of Chairman ICRI for the year 201920.
20. The election process is almost complete. The Constitution of the IRIA provides for adequate mechanism to redress the grievance of anyone aggrieved by the election by moving an Election petition to the National President within 15 days of the declaration of the results as per Rule 44 A(iii) of Part 3 of the Constitution of IRIA. However, first of all, the election result has to be declared. Any discrepancy on any count can always be addressed by moving appropriate petition before the Election Tribunal, more so, when the nature of dispute pertains to allegations regarding the credibility of the electronic systems which has served the Association for the past about 8 years, it is not open to the defendants to take U turn and start the process afresh when the results are almost out and open secret.
21. Further, the Central Council usurping the powers to nullify the CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 10 /13 whole election process and proceeding for revalidation/ repolling raises questions about its competence in view of the scope of its powers/ functions as mentioned in Rule 10 and 11 of the Part 3 of the Constitution. Further, Rule 19 of part 2 of the Constitution elaborates about the powers of the Central Council and stipulates the Central Council will administer the affairs of the Association in accordance with the constitution of the Association and shall take all necessary decision for day to day running of the Association. Its competence to frustrate the ongoing election process are under serious challenge.
22. As far as the submissions of Ld. Counsel for defendants regarding faulty mechanism to compulsorily cast votes on the first page in order to enable casting votes for the subsequent posts is concerned, I am in disagreement with the said submissions. Any software works as per its algorithm. If the IRIA itself created such a mechanism and allowed it to work for about 8 years, it cannot find fault with such system in such a manner and at such a critical juncture of the election process. Besides, from the demonstration shown in the court, it cannot be said that the voting mechanism demanded compulsorily casting a vote on the first page and not providing any option for skipping the same. Ordinarily, electronic process are akin to their physical equivalents, in fact, better than that. Further, as far as non matching of the logs viz a viz number of votes is concerned, in my considered opinion, it per se does not in any way raises any doubt about the credibility of the software. It is quite possible that the developer while CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 11 /13 writing the source code might not have logged every vote and any discrepancy in the log may or may not result in the malfunctioning of a software. Nevertheless, it is open to the defendants to challenge the election process but only after the declaration of the results and it is not open to the defendants to scuttle the election process at the final stage.
23. Therefore, in my considered opinion, prima facie case is made out in favour of the plaintiff and against the defendants. Merely, because certain candidates have opted to challenge the evoting process prima facie cannot be the ground to take the process back to square one, more so, when the writing on the wall is clear and everyone knows the outcome of the election process.
24. In my considered opinion, balance of convenience also lies in favour of the plaintiff and against the defendants. Plaintiff who has secured maximum number of votes for the post of Chairman shall suffer irreparable loss and injury in case the election results are not declared. In fact, allowing the defendants to scuttle the election process at this stage shall bring credibility crisis to the whole process. Besides, the defendants are not remediless and can always take recourse to the provisions of Rule 44 of Part 3 of the Constitution and file an election petition to the National President within 15 days of the declaration of the results. Further, in Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Sanstha and Anr. Vs. State of Maharashtra & Ors; (2001) 8 SCC 509 it has been held that there shall be no stay of the election process CS no.1145/18 Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 12 /13 even though there may be some illegality or breach of rules while preparing the electoral roll and once the results of election gets declared, appellants have option to challenge election of returned candidate by means of election petition before Election Tribunal.
25. Therefore, once the election process starts, there should not be any interference in the process.
26. Therefore, in my considered opinion, plaintiff is entitled to grant of interim relief. Consequently, the defendants are restrained from conducting the repolling during the pendency of the suit and directed to declare the results.
27. Nothing stated herein shall tantamount to expression of any opinion on the final merits of the case which shall be decided after full fledged trial.
28. Both the parties to file affidavits of admission and Denial with copies exchanged. Put up for admission denial of documents and framing of issues on 13.03.2019.
Digitally
(Munish Markan)
signed by ADJ01 (South), New Delhi.
MUNISH
MUNISH MARKAN 29.01.2019
MARKAN Date:
2019.01.29
17:47:35
+0530
CS no.1145/18
Lalendra Upreti Vs. Indian Radiological and Imaging Association and Ors. Page 13 /13