Jharkhand High Court
Roshan Lal Choudhary vs Nirmala Devi & Ors on 26 June, 2018
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
E.P. No. 08 of 2015
Roshan Lal Choudhary ..... Petitioner
Versus
Nirmala Devi & Ors. ..... Respondents
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioner : Mr. V.P. Singh, Sr. Advocate. For the Respondent No. 1 : Mr. Arvind Kr. Lall, Advocate. For the Respondent No. 20 : Mr. Vikas Pandey, Advocate.
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Reserved On : 18/06/2018 Pronounced On : 26/06/2018 I.A. No. 7974 of 2017 I.A. No. 7947 of 2017 filed on 30.10.2017 in E.P. No. 08 of 2015 under the provision of Section 86 (7) of the Representation of People Act, 1951 and also for seeking compliance of the interim order dated 03.02.2017 passed in Election Petition on behalf of the petitioner Roshan Lal Choudhary was pressed.
The matter was heard on 18.06.2018.
In the petition, it has been averred by the petitioner as follows :-
(i) That the present Interlocutory application is being filed on behalf of the petitioner seeking compliance of the interim order dated 03.02.2017 passed by this Hon'ble Court in the connected Election Petition, whereby and whereunder this Hon'ble Court has directed the Returning Officer to hold the inspection of record and submit a report on affidavit giving exact number of persons as may be found to have entered twice in the electoral roll as also the exact number of persons, if any, as may be found to have voted twice.
(ii) That the petitioner has challenged the Election of the Respondent No.1 Nirmala Devi as Member of Jharkhand Legislative Assembly from 22, Barkagaon Assembly Constituency and this Hon'ble Court has been pleased to call for records and frame issued in relation to casting of double votes by thousands of voters and supporters of the returned candidate.
(iii) That though, the Returning Officer was not party originally in the Election Petition but she herself applied to the added as party and inspite of the objection of the election petitioner, she was added as party to the Election petition and thereafter she has filed her written statement.-2-
(iv) That thereafter, on permission from this Hon'ble Court, the election petitioner has inspected the records and has discovered in presence of counsels of Returning Officer and Elected Candidate that there had been large number of voters who had casted their votes twice or thrice within the same booth or at different booth, materially affecting the result where the margin of difference of votes in between the election petitioner and the returned candidate had been only 411. The election petitioner has disclosed and brought on record the list such voters who had voted twice by way of interlocutory application being I.A. No. 1188/2016.
(v) That it is very relevant to state and submit here that the returning officer in her written statement at paragraph-44 and 45 has also admitted of 171 number of voters to have voted twice. Furthermore, the Returning Officer while verifying the assertions and the details of double voters as enumerated in I.A. No. 1188 of 2016 has admitted that a total of 101 numbers of voters have casted their votes twice in the same booth, 36 numbers of voters have casted their votes twice in two different booths and 4 numbers of voters have casted their votes thrice, admitting that some 101x2+36x2+4x3=286 numbers of votes to be void which if added to the admitted position of 171x2=342 makes it 286+342=628 numbers of void votes as per provisions of section 62 of the Representation of People Act, 1951.
(vi) That it is submitted that taking into account the large scale irregularity in the voters list and casting double votes by the supporters of the returned candidate, this Hon'ble Court before accepting the statement of the petitioner and failure of the Returning Officer and the Returned Candidate to answer the specific interrogatories of the petitioner, in the interest of justice directed the respondent Returning Officer vide order dated 03.02.2017 to hold the inspection of record and submit a report on affidavit giving exact number of persons as may be found to have entered twice in the electoral roll as also the exact number of persons, if any, as may be found to have voted twice.
(vii) That in compliance and furtherance to the order dated 03.02.2017, inspection of records was carried out by Returning Officer in presence of the counsels on 14 th, 15th and 16th of February, 2017, however, the total -3- number of casted double votes detailed in I.A. No. 1188/2016 was not verified fully and hence, an interlocutory application being I.A. No. 1961/2017 was filed on behalf of Returning Officer for further inspection, which has been allowed in terms of order dated 10.03.2017 and further inspection directed to be held on 3rd 4th and 6th April and thereafter, the report of the Returning Officer, was filed admitting further of 141 numbers of double votes and 4 numbers of triple votes being casted in the election to 22 Barkagaon Assembly Constituency.
(viii) That it is submitted that the reply of the Returning Officer has not been in accordance with the direction passed by this Hon'ble Court and there has been material suppression and concealment with respect to double votes, the election petition has filed its reply to the supplementary affidavit filed on behalf of the Returning Officer and has brought on record names of as many as 7864 numbers of voters having same electoral roll but their name entered at two different booths and some 5816 numbers of voters having same name, parentage, photograph etc. having their names figuring at two different booths.
(ix) That it is submitted that after the order dated 03.02.2017 passed by this Hon'ble Court has been acted upon and partly complied with by the Returning Officer, the returned candidate had moved before the Hon'ble Supreme Court of India vide S.L.P (Civil) No. 14417/2017 challenging the interim order dated 03.02.2017 alongwith prayer for interim relief in the nature of stay of the Election Petition No. 8 of 2015.
(x) That it is submitted that the matter of Special Leave to Appeal was listed before the Hon'ble Supreme Court of India on 08.05.2017 and upon hearing the counsel it was directed to be listed after summer vacation, whereupon it was again listed before the Hon'ble Supreme Court on 17.08.2017 and leave was granted.
(xi) That it is submitted that although there had been a prayer for stay on the instant election proceeding before the Hon'ble Supreme Court of India, but no interim order in the nature of stay been granted by the Hon'ble Supreme Court of India.
-4-(xii) That it is submitted that Section 86(7) of the Representation of the People Act, 1950 provides for expeditious trial of the election petition and in view of there being no stay of the proceeding in appeal by the Hon'ble Supreme Court of India, and also because order dated 03.02.2017 has been partly complied, this Hon'ble Court may direct the respondent Returning Officer to submit its complete report in terms of order dated 03.02.2017.
Reply on behalf of the respondent no. 1 Nirmala Devi to the I.A. No. 7974 of 2017 was filed, in which it is stated as follows:-
(i) That it is stated that the petitioner has filed the instant Election Petition under Sections 80, 80A and 81 of the Representation of People Act. Under Section 81 of the Act, the election petition could have been filed within 45 days from the date of election of returned candidate.
(ii) That in the main Election Petition, the petitioner has confined his prayer to an allegation of double voting with respect to 1024 persons. Subsequently, the Election Commission had falsified the said claim by stating that out of the alleged 1024 persons, names of only 765 persons have been recorded and out of which, only 171 persons have been found to have voted twice.
(iii) That the petitioner was aware that the final electoral rolls were published by the authorities concerned before the election was held, prior to which the draft roll was published for information of the voters concerned, and that he did not lodge any complaint before the authorities concerned about the double enrollment in the two constituencies.
(iv) That it is stated that as far as impersonation or double voting is concerned, such actions would amount to improper reception of votes which is a separate ground for declaring an election to be void under Section 100 (1)
(d) (iii) of the Representation of People Act,1951.
(v) That, through different applications and affidavits the petitioner prayed for amplification of particulars and cases of double voting which he claims to have been discovered in course of inspection, which is against the provisions prescribed under Section 81 of the Representation of People Act. The petitioner had tried to include fresh complaint within the instant election -5- petition which is otherwise not permissible in the eyes of law.
(vi) That the pleading in regard to matters where there is scope for ascribing an alleged corrupt practice to a returned candidate in the context of a meeting of which dates and particulars are not given would tantamount to failure to incorporate the essential particulars. And inasmuch as there was a possibility that witnesses could be procured in the context of a meeting at a place or date convenient for adducing evidence. No amount of evidence could cure the basic defect in the pleading and the pleading as it stood must be construed as one disclosing no cause of action. The petitioner's statement made in para 42 of the main petition does not disclose the name of the respondent No. 1's relatives, friends and supporters at different places in the same Constituency, whose name are inserted in the Electoral Roll making allegations of double voting as said in Form-25. The petitioner's statement made in para 28 to 30, 43 and 44 of the main petition also does not support the allegations as said in Form-25. Only giving the list of voters does not makes allegation clear that how and in which manner they are concerned with the Respondent No. 1, thus, these are vague allegation, so far the Respondent No. 1 is concerned and thus, has no meaning in the eyes of law.
(vii) That an election petition is to be adjudicated giving strict adherence to the statutory provisions without being influenced by any other concepts. A permission cannot be granted to a party to lead evidence unless an issue has been framed on the controversy and an issue cannot be framed unless there are actual pleadings in respect thereof. Outside of statue, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
-6-(viii) That it is stated that the petitioner has half- heartedly filed the election petition and thereafter is trying to include new facts by making roving and fishing enquiry on each date. Such act is not permissible in the eyes of law. It is not permissible for the petitioner to play mischief by half-heartedly filing an election petition and thereafter start making roving enquiry and seek to change the scope of the petition by filing Interlocutory Applications.
(ix) That, so far as instant Interlocutory Application (I.A. NO. 7974 of 2017) is concerned, same has also been filed with an oblique motive. It is apparent from the Annexure-1A 1 to the I.A No. 7974 of 2017 that the prayer made before the Hon'ble Supreme Court of India in S.L.P. (Civil) No. 14417/2017 was mainly against the order dated 03.02.2017 passed by this Hon'ble Court in the Election Petition No. 8 of 2015.
(x) That the issue of counting of votes is itself an issue under the consideration and sub-judice before the Hon'ble Supreme Court of India and hence it would not be proper to proceed further in the present case on the basis of any counting earlier held before this Hon'ble Court.
(xi) That the substantial questions of law for adjudication before the Hon'ble Supreme Court of India are:
a. Whether the Learned Judge should pass an order in an election petition on the basis of mere allegations in the petition, without satisfying himself in a preliminary enquiry on the basis of sufficient material about the need for scrutiny and recount on the basis of proof produced by the parties ? b. Whether the Learned Judge should pass an order allowing an interlocutory application in an election petition which is also a prayer in that election petition?
c. Whether the learned Judge erred in allowing the application for inspection of prohibited/restricted records filed by the first respondent for the simple reason that he was making a roving and fishing inquiry?
d. Whether an allegation of double entries of the voters in the voter lists can be accepted directly in election petition, if the Election Petitioner had not -7- challenged, those double enrollments when the draft rolls were published?
e. Whether error in voter list can be made a basis of election petition under Section 100?
f. Whether an allegation of double voting can be accepted directly in election petition, if the polling agents had not made any objection, when such double voting took place?
g. Whether-amendments in pleadings or addition of even particulars are permissible, after limitation period, where corrupt practice is not an issue? h. Whether non submission of any fact pertaining to objection upon the double entry of certain voters in the voter list and not giving the name of the election agent, who made objection on double voting by the same persons', booth' numbers, etc, were lack of material facts and if petition suffers from lack of material facts, it is liable to be summarily rejected for want of cause of action?
i. Whether any evidence can be laid on a plea which is not raised in the pleadings?
j. Whether any evidence can be laid on a plea which is not raised in the pleadings?
k. Whether any amount of evidence can cure the defect in the pleadings?
l. Whether, after completion of election process, the Register 17A and 17C and other prohibited documents can be opened / inspected without a specific order of the concerned designated court? m. Whether, the Register 17A and 17C and other prohibited documents are documents of secret and sacrosanct in nature, and its preservation should be paramount consideration for any authority in a democratic system?
n. Whether secrecy and sacrosanct nature of the Register 17A and 17C and other prohibited documents could be permitted to be violated in a democratic system?
o. Whether the learned Judge should have accepted any report adversely affecting the secrecy and sacrosanct nature of electoral process on the basis of inspection of the Register 17A and 17C and other prohibited documents, in view of the fact that the learned Judge of the High Court had passed an -8- interlocutory order directing the Returning Officer to produce the Register 17A and 17C and other prohibited documents, but, had not passed any order for inspection of those records ?
p. Whether the Learned Judge should have exercised his discretion conferred upon him so as to enable the Election petitioner to indulge in a roving inquiry with a view to fish materials for declaring the election to be void?
q. Whether the Learned Judge should have accepted any report, which is without authority, from any person and on that basis alone without giving any opportunity to the affected party to bring his defence and reduced the margin of the winning candidate?
r. Whether the Learned Judge should have presumed all the double votes in favour of the winning candidate and declare it as a void votes and thereby, reduced the margin of the winning candidate? s. Whether the scrutiny of ballot papers and voters turnout register can be directed to be opened on the basis of pleadings alone and without framing of issues and evidences brought on record by both parties and by prima facie satisfaction thereon? t. Whether casting of double votes by the same persons can be assumed on presumption and report of a third party without affording any opportunity to the winning candidate to rebut and without examining or testing such votes?
u. Whether the Learned Judge could bypass the legal responsibility to act judicially?
(xii). That in view of the above stated facts and circumstances, it is stated that this Interlocutory Application is without any basis and is not permissible in the eyes of law and as such, liable to be rejected.
Rejoinder was filed on behalf of the election petitioner in the aforesaid election petition, wherein it is stated as follows :-
(i) That it is submitted that the petitioner has brought on record a list of voters and supporters of the returned candidate who had managed to get their name inserted at two/three different booths in the said constituency for the purposes of casting more than one vote, which is illegal.-9-
(ii) That it is submitted that the Returning Officer of 22, Barkagaon Assembly Constituency in her written statement has admitted of double and triple votes being casted in the election of 22, Barkagaon Constituency.
(iii) That it is submitted that the petitioner upon inspection of records, called upon by this Hon'ble Court, has brought on record a list of such voters who had casted their votes at two and three booths rendering all such votes as void and illegal in view of provision contained in Section 62 of the Representation of People Act, 1951.
(iv) That it is submitted that this Hon'ble Court vide order dated 03.02.2017 and while considering the large number of persons having their names registered at two/three different booths has directed the Respondent-
Returning Officer to hold the inspection of record and submit a report on affidavit giving exact number of person as may be found to have entered twice in the Electoral Roll as also the exact number of person, if any, as may be found to have voted twice.
(v) The said order dated 03.02.2017 was passed when the Respondents, including the Respondent No. 20 failed to give reply to I.A. No. 4243 of 2017 inspite of giving several adjournment to them.
(vi) That it is submitted that the Returning Officer has already partly complied the order dated 03.02.2017 by verifying the list submitted by the petitioner, however, she has not submitted the entire list of verification of such voters whose name figure at two or more booths and they have casted their votes.
(vii) That it is submitted that the petitioner has brought on record the list containing names of 5816 number of voters with details of the Electoral Roll in relation to their names figuring at two different booths for purity of election and election trial.
(viii) That it is submitted that in the meanwhile the returned candidate had moved in appeal against order dated 03.02.2017 before the Hon'ble Supreme Court of India vide S.L.P. (Civil) No. 14417/2017 without placing complete facts about part compliance by the Respondent No. 20 of the order dated 03.02.2017.
(ix) That it is submitted that the Hon'ble Supreme Court of India has been pleased to grant leave in the said S.L.P but not interim order in the nature of stay was -10- granted by the Hon'ble Apex Court.
(x) That it is submitted that thereafter the petitioner has filed an interlocutory application being I.A. No. 7974/2017 under Section 86(7) of the Representation of People Act, 1951 and for complete compliance of the order dated 03.02.2017 passed by this Hon'ble Court.
(xi) That in response to the Interlocutory Application the Returning Officer has filed its affidavit taking the plea that records of the election are voluminous and it would consume six to eight months for verification of double/triple votes as directed by this Hon'ble Court which is fissiparous and dilly-delaying tactics.
(xii) That in reply to the statement made in paragraph No.-5 of the counter affidavit, under reply, it is submitted that it is the admission of the respondent-returning Officer that 101+36=137 number of voters have casted double votes and 4 number of person casted triple votes rendering (137x2+4x3) 286 number of votes to be void.
(xiii) It is very relevant to state and submit here that the Returning Officer in her written Statement had already admitted of 171 number of double votes rendering 342 votes as void and hence, atleast the total number of void votes are 342+286=628 votes which has materially affected the result of the 22, Barkagaon Assembly Constituency where the margin of victory of the Returned Candidate had been only 411.
(xiv) That in reply to the statement made in paragraph 6 and 7 of the counter affidavit, under reply, it is most respectfully submitted that for purity of election and people mandate it is expedient and in the interest of Rule of Law that the name of such voters who have got their name inserted at two different place be identified and the double and triple votes casted by them be declared null and void in terms of the section 62 of the Representation of People Act, 1951.
(xv) It is further submitted that it is the onerous duty of the Election commission to comply with the direction passed by the Hon'ble Court in Election Trial and such fissiparous and dilly delaying tactics should not be entertained. The Election Commission is well equipped with qualified men to discover and verify the number of such voters whose list the petitioner has submitted.
-11-Learned counsel for the petitioner while relying on the rulings of the Hon'ble Supreme Court i.e. (2005) 1 SCC 705 and (2009) 9 SCC 79: (2009) 3 SCC (Civ) 620 submitted that there is no stay in the matter and only leave has been granted.
Learned counsel for the respondent no. 1 submitted that none of the rulings relied upon by the petitioner i.e. (2005) 1 SCC 705 and (2009) 9 SCC 79: (2009) 3 SCC (Civ) 620 are related to election matter, rather they are related to property dispute or consumer dispute, so in view of the order of Hon'ble Supreme Court dated 17.08.2017 passed in Special Leave to Appeal (C) No. 14417 / 2017, the prayer for early conclusion of the trial of the election petition is fit to be rejected.
After hearing the parties and after going through the records, I find that leave has been granted in Special Leave to Appeal (C) No. 14417 / 2017 by the Hon'ble Supreme Court of India against the order dated 03.02.2017 passed in the instant case by this Court. So, I am of the considered view that no case is made out for early hearing of the election petition.
Accordingly, I.A. 7974 of 2017 is hereby rejected.
(Anant Bijay Singh, J.) Sunil/