Bombay High Court
Balaji Devidas Kalyankar vs The Returning Officer For General ... on 13 February, 2020
Author: Rohit B. Deo
Bench: Rohit B. Deo
(1)
WP-2770 of 2020.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
909 WRIT PETITION NO.2770 OF 2020
Balaji Devidas Kalyankar
Age : 40 years, occ : agri.,
R/o Taroda (kh), Malegaon Road,
Nanded. Petitioner
Versus
1. The Returning Offcer
For General Election of Nanded-
Waghala Shahar Municipal
Corporation, Nanded.
2. Nanded Waghala Municipal
Corporation, Through its
Commissioner.
3. Dinesh Laxmanrao Mortale (Patil)
Age : 46 years, occ : business
R/o Plot No.4, Bela Nagar,
Taroda (Bk), Nanded.
4. Anil Ashok Gaikwad
Age : major, occ : agri.,
R/o Patil Nagar, Taroda (Bk),
Nanded.
5. Ganesh Durgadas Hatkar
Age : major, occ : agri.,
R/o C/o S.M. Bansode,
Mahsul Nagar, Taroda (Kh),
Nanded.
6. Yadav Bajirao Kalyankar
Age : major, occ : agri.,
R/o Laxmi Compound, Near
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(2)
WP-2770 of 2020.odt
Jain Mandir, Taroda (Bk),
Nanded.
7. Sopan Balaji Neval
Age : major, occ : agri.,
R/o Plot No. 16/17, Shivraj
Nagar, Taroda (Bk), Namded. Respondents
...
Mr. V.S. Kadam, Advocate for the petitioner.
Mr. R.K. Ingole Patil, Advocate for respondent Nos.1 and 2.
Mr.T.M. Venjane, Advocate for respondent No.3.
...
CORAM : Rohit B. Deo, J.
DATE : 13th February 2020.
ORDER :-
. Rule. Rule is made returnable forthwith. Heard fnally with consent of the parties.
2. The petitioner, who is a candidate elected to the Nanded Waghala Municipal Corporation (Corporation) from Ward 1 (D), is questioning the order dated 04.02.2020 rendered by the Civil Judge, Senior Division, Nanded in Election Petition 1 of 2017 preferred by respondent-3, the operative part of which reads thus :
"1. Parties to the Petition are directed to suggest the name of suitable person to be named as Court Commissioner for the ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (3) WP-2770 of 2020.odt purpose of recounting of postal ballot votes by tomorrow.
2. The Court Commissioner is directed to verify from the register of ballot votes, inward and outward register etc. maintained by the returning offcer during the course of election proceedings of Municipal Corporation election of NWCMC in the year 2017 along with other necessary, relevant and connected documents kept and preserved in safe custody of strong room with The District Treasury offcer Nanded in pursuance of order dated 0103- 2018 passed by this court below Exh.21.
3. The Court Commissioner is directed to recount all kinds of postal ballot votes received, classifying them as valid, invalid and total number of votes received by all the candidates in presence of the candidates or their Advocates after fxing specifc date for counting.
4. The Court Commissioner shall serve notices to all the candidates of ward No.1 (D) requiring them to remain present for re-
counting of all kind of postal ballot votes as per rules.
5. The Court Commissioner shall submit his detailed report of recounting of postal ballot votes along with certifed true copies of the record for the perusal of the court within the period of 15 days from receipt of Writ of commission. Needless to state that Court Commissioner shall follow provisions of order XXVI of Civil Procedure Code.
6. Until receipt of report of Court Commissioner fnal decision on issue No. 4 is deferred and reserved.
7. Issue writ of commission to the Court Commissioner.
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WP-2770 of 2020.odt
8. Issue letter to The District Treasury offcer Nanded, who is in custody of entire record of election of ward No.1 (D) in pursuance of order dated 1032018 passed by this court below Exh.21, requiring him to make available and produce all the requisite election material under his supervision and close surveillance for taking copies, perusal, inspection, assessment and scrutiny etc. in the presence of the candidates or their advocates, if asked by the court Commissioner.
9. Superintendent of the court is directed to provide necessary documents to the Commissioner, if asked for.
10. Accordingly case is adjourn for return of report of Court Commissioner till 24-02- 2020.
11. Dictated and pronounced in open court".
3. I have heard learned Counsel for the parties and with their able assistance, the averments in the petition and in the written statement fled in response by the Returning Offcer are perused, and having done so, I am satisfed that the order impugned is unexceptionable.
4. It would not be necessary, for the purpose of deciding the present petition, to narrate in detail each and every challenge to the election process and the result. In the context of the order which is assailed, suffce it to notice, that the election petitioner - respondent 3 specifcally contended ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (5) WP-2770 of 2020.odt that notwithstanding that the Returning Offcer accepted the application seeking recount of the votes, as a fact, the recount was restricted to the EVM votes and postal ballots were excluded from the process.
5. Perusal of the Election Petition would reveal that in paragraph 5 a specifc averment is made that despite directing recount of votes, the postal ballots were excluded from the process. The relevant averments read thus :
"That, on dated 12/10/2017 returning offcer who fnished counting for ward no.01 Taroda (Kh.) frst announced result and thereby declared that Balaji S/o Devidas Kalyankar got votes of 4204 and applicant Dinesh Mortale got votes of 4068 out of total 11568 votes, and thereby declared Balaji Devidas Kalyankar as winning candidate with lead of 136 votes against applicant. That, after request of recounting of votes respondent no.1 counted recounting of votes recorded in the electronic voting machines, but the respondent no.1 failed to conduct the recountion of the vote recorded by the mode of postal ballot. After conducting the recounting of votes of electronic voting machines, the respondent no.5 Balaji Kalyankar declared as the returning candidate by the margine of 136 votes".
6. The averment that the postal ballots were excluded from the process of recounting is not denied in the written statement fled on behalf of the Returning Offcer. In response to a specifc query, the learned Counsel appearing ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (6) WP-2770 of 2020.odt on behalf of the Returning Offcer fairly states that the postal ballots were not counted.
7. Recounting is not an empty or a ritualistic formality. The Returning Offcer having found that a case for recount is established, the Returning Offcer was obligated to count the entire votes and it was clearly impermissible to exclude the postal ballots from the process. The failure of the Returning Offcer to count the postal ballots is all the more serious and indeed fatal since one of the major planks of the challenge to the election result is that the counting of postal ballots is vitiated by serious irregularities and malpractices. Illustratively, the averments in paragraph 8 (e) to (h), which are reproduced below, read thus :
"8 (e) That, for Ward No. 01 (A), (B), (C),(D) total voting are same in number, even though returning offcer counted and declared different calculations when the actual casting and recording of votes are not different in numbers as voters are same for this four category A,B,C,D vote will be accepted by EVM only if voter cast his vote to all category of ward no. 1 A,B,C,D as per the voting method adopted by the respondent no.1 in entire wards in this election. In present case the total recorded votes for ward no. 1 (A) is 11906 votes, for Ward no.1 (B) is 11604 votes, for Ward no.1 (C) is 11627 votes, for ward no.1 (D) is 11568 votes (12011 in certifed copies). This fgures were gathered by the applicant through offcial website of respondent no.2. ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (7)
WP-2770 of 2020.odt That prima facie it is clear that, the counting process and system adopted by respondent no.1 is totally illegal and effects the result of election of applicant / petitioner.
(f) There is irregularities and mal practice in counting postal votes at the time of counting of ballot votes, the respondent no.1 has rejected one vote stating that the said ballot paper is in the torn condition. In fact the said postal ballot paper was not in the torn condition and was traceable, readable and recordable. The vote casted by the elector on the said postal ballot paper was casted in favour of the petitioner. The rejection of the said vote on ballot paper concluded to the defeat of the applicant petitioner in said election".
(g) That, the respondent no.1 at the time of counting of postal votes has rejected one vote on the ground if improper mark. The mark which was given by the voter on the said postal ballot paper was shown marked as "X". The respondent no.1 rejected the said vote stating that the mark given by the voter on the said ballot paper was incorrect and thus cannot be considered in counting. Infact the said vote was casted in favour of the petitioner. The respondent no.1 has not mentioned the rejection of said vote in the fnal sheet published by the respondent No.1, the rejection of the said vote has concluded only to the defeat of the applicant petitioner in the said election.
(h) So also there were more than 104 votes recorded through postal ballot in ward no.1 (D) but in counting process only 104 votes were counted and shown 103 votes in the certifed copy of result. That, after demand of copy of register of postal voters and sleep, copy of inward and outward register of postal ballot not issued and not provided to the applicant till now. Hence prima facie there are lot of irregularities ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (8) WP-2770 of 2020.odt and illegalities in process of counting of votes which will materially affect the result of the election process".
8. Learned Counsel for the elected candidate would submit that as a fact the postal ballots were recounted. Learned Counsel for the elected candidate would invite my attention to the averment in paragraph 6 of the written statement fled on behalf of the elected candidate. In view of the non-traverse of the relevant averment in the written statement fled on behalf of the Returning Offcer and the fair statement made by the learned Counsel who appears on behalf of the Returning Offcer, the submission which is canvassed on behalf of the elected candidate, is considered only for rejection.
9. In all fairness, the learned Counsel for the elected candidate has invited my attention to the fndings recorded by the Election Tribunal in paragraph 24 of the order impugned, which read thus :
"24] It is imperative to note that none of the respondents have challenged the copies of the said register of postal ballots. Even there is no single suggestion on behalf of the respondents that copies issued to the petitioner in respect of register of postal ballot votes under RTI Act are false or fabricated. There appears no challenge to the copy of register of postal ballot produced by the petitioner. Therefore, in my ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (9) WP-2770 of 2020.odt opinion, said copy of register of postal ballot is admissible in evidence and it can be read and also relied upon for the purpose of verifcation and assessment of postal ballot votes received in the election. Said register is now marked as Exh.114 for the purpose of identifcation. On perusal of page No.15 of the said register of ballot votes, it is evident that after Sr.No. 243, directly Sr.No.249 has been noted by skipping 5 numbers while writing he register . It is signifcant to note that total number of postal ballot votes shown therein in the register are 328 . In ward No.1 total number of postal ballot votes received are shown in the register as 119 votes . Similarly in ward No.2,3 and 4 total number of postal votes received are shown as 88, 35 and 105 respectively. If these total number of postal votes are counted, its total comes to 347 votes, whereas in the register of postal ballot only 328 total number of postal ballot votes are shown as received, which are written from Sr.No.1 to 328. Thus it demonstrates that there is difference of 19 votes which are unaccounted".
10. The fndings, which are recorded, make it all the more imperative that there should be recount of the postal ballots. The fndings would suggest that the entire process of counting of votes is not free from suspicion.
11. I do not see any error in the order impugned much less an error as would impel me to exercise writ jurisdiction.
12. The petition is dismissed.
13. Learned Counsel for the elected candidate would submit that the interim stay to the counting be continued for ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 ::: (10) WP-2770 of 2020.odt two weeks. The request is rejected since the Election Tribunal would be passing further orders pursuant to the result of the recount and elected candidate has no reason to assume that the result of the election is likely to be materially affected due to recounting of the postal ballots.
14. Rule is discharged.
(ROHIT B. DEO, J.) VD_Dhirde ::: Uploaded on - 14/02/2020 ::: Downloaded on - 23/03/2020 00:21:24 :::