Karnataka High Court
Shri.Ravi Shivappa Padasalagi vs Sri.Paravatagouda S/O Bandanagouda ... on 25 February, 2021
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25th DAY OF FEBRUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
ELECTION PETITION NO.100001/2019
BETWEEN:
SHRI. RAVI SHIVAPPA PADASALAGI
S/O SHIVAPPA PADASALAGI
AGED ABOUT 42 YEARS,
OCC: SOFTWARE ENGINEER/SOCIAL WORKER
INDEPENDENT CANDIDATE FOR BAGALKOT
LOKSABHA CONSTITUTENCY
R/O NO.196, 5TH MAIN, 2ND CROSS,
M.S. PLAYA ROAD,
SINGAPURA PARADISE,
VIDYARANYAPURA POST,
BENGALURU 560 097.
.. PETITIONER
(BY SRI. SHIVARAJ C. BELLAKKI, ADVOCATE)
AND:
1. SRI. PARAVATAGOUDA,
S/O CHANDANAGOUDA GADDIGOUDAR
AGED ABOUT 68 YEARS
OCC: ELECTED MEMBER FROM BAGALKOT
LOKSABHA CONSTITUTENCY
R/O ANUGRAHA NIVASA,
LAXMI NAGARA
BADAMI 587 201.
BAGALKOT DISTRICT.
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2. RETURNING OFFICER
CUM DISTRICT COMMISSIONER deleted vide
BAGALKOT DISTRICT, BAGALKOT 587 201 court order
Dated 11.12.2019
3. CHIEF ELECTION COMMISSIONER
ELECTION COMMISSIONER OF INDIA
NIRVACHANA SADAN, ASHOK ROAD,
NEW DELHI 110 001.
.. RESPONDENT
(BY SRI. S.P. KANDAGAL AND SRI. PRAKASH HOSAMANE ADVS. FOR R1.
REPONDENT NOS.2 AND 3 DELETED V/O DATED 11.12.2019)
THIS ELECTION PETITION IS FILED UNDER SECTIONS 80 AND 81
READ WITH SECTION 100 OF THE REPRESENTATION OF PEOPLE ACT
1951 PRAYING TO SET ASIDE THE ELECTION OF RESPONDENT NO.1 AS
RETURNED CANDIDATE OF BAGALKOT CONSTITUENCY IN THE
PARLIAMENTARY ELECTION HELD ON 23.4.2019 AND PAS SUCH OTHER
ORDERS INCLUDING COSTS OF THE PROCEEDINGS IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.02.2021 AND COMING ON FOR PRONOUNCEMENT
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner herein filed this Election Petition under Sections 80 and 81 read with Section 100 of the Representation of People Act, 1951 (hereinafter referred to as the 'RP Act', for short).
2. The case of the petitioner is that, he has contested the parliament election as an independent candidate from Bagalkot constituency and the respondent had contested as BJP candidate. 3 The petitioner further stated the petitioner filed his nomination paper on 28.03.2019 in accordance with law and the respondent also filed nomination papers before the Returning Officer which is defective and not in accordance with Act and Rules despite which the Returning Officer has committed error in accepting the nomination of the respondent. The nomination paper filed by the respondent is incomplete inasmuch as page No.15 is missing and this material aspect has not been considered by the Returning Officer and the said nomination filed by the respondent, even though defective, has been erroneously accepted by the Returning Officer.
3. The petitioner further contended that the notification for conducting the election was issued on 28.03.2019 and the last date for filing nomination was fixed on 04.04.2019. The scrutiny of nomination was scheduled on 5.4.2019 and the last date for withdrawal was on 8.4.2019. The election to the Bagalkot constituency was held on 23.04.2019 and at the time of counting on 23.5.2019, the nominated elected agent of the petitioner was not allowed inside the counting booth. The agent of the petitioner 4 was sent out from the booth from 7.00am to 10.30am on 23.05.2019.
4. The petitioner further contended that the VVPAT slips were not checked properly. The petitioner pointed out that the EVM machines were not working properly and were defective. VVPAT slips does not mention the date, time and machine details and he has submitted representation on 25.5.2019 to the Chief Electoral Officer. The results were announced on 23.05.2019. Further the nomination paper filed by the respondent is incomplete inasmuch as page No.15 is missing and this material aspect has not been considered by the Returning Officer and the said nomination filed by the respondent, even though defective, has been erroneously accepted by the Returning Officer and declared the respondent as returning candidate in respect of Bagalkot constituency.
5. The petitioner urged the grounds for setting aside the election of respondent No.1 on the ground that, on the day of counting the votes, the agent of the petitioner was not permitted to enter the counter booth between 7.30am and 10.30am on 23.05.2019 and the Returning Officer failed to verify all the VVPAt 5 slips in the presence of the agent of the petitioner. At least five EVM machines and VVPAt slips of each assembly constituency had to be checked in the presence of the counting agents of the candidates but the Returning Officer has done partial compliance inasmuch as minimum number of EVM machines and VVPAT slips were not checked. Therefore, the said material irregularity in the process of conducting election has materially affected the results. Therefore, the election of respondent as returned candidate, is void under Section 100(1)(d)(i) of RP Act.
6. The petitioner further challenged the election of the returning candidate of the respondent that, the nomination papers of the respondent ought to have been rejected since page No.15 of the affidavit was missing. The page No.15 with regard to the details and disclosure and non-disclosure in the said page would have disqualified the respondent. The absence of the contents of the affidavit at page No.15 goes to the root of the case. The details could have decided whether the nomination of the respondent could have been accepted or not. Hence, non-disclosure of the fact in page No.15 could have materially affected the result of the present 6 election if the nomination filed by the respondent was rejected at the threshold.
7. It is further contended that the cause of action arouse for filing the petition on 5.4.2019 when the nomination paper of the respondent was erroneously accepted and on 23.05.2019 when the election results were announced. The challenge pertains to Bagalkot constituency in Bagalkot district and hence cause of action arose within the jurisdiction of this Court. He has paid the necessary court fee and produced all relevant documents. Hence prayed for setting aside the election of the respondent as returned candidate of Bagalkot constituency in the parliamentary election held on 23.04.2019 and to pass such orders including costs of the proceedings.
8. In pursuance of the notice, the respondent appeared and filed written statement under Section 86 of RP Act read with Rule 12 of the Election Petition Procedure Rules, Karnataka. The respondent taken the first contention that the petition is time barred and the same has been presented beyond statutory period of limitation and therefore the petition is liable to be rejected on the 7 ground of non-compliance of the provisions under Section 81 of the RP Act.
9. The respondent admits the fact that the petitioner has contested the said election as an independent candidate and the respondent contested as a BJP candidate and further stated, the petitioner is put to strict proof of his statement that his nomination papers were filed on 28.03.2019 in accordance with law and specifically denied the averments of the petitioner that nomination papers of this respondent were defective and not in accordance with law and rules. He further denied that the Returning Officer has committed error in accepting the nomination papers of the respondent. Further denied that, the nomination papers filed by this respondent was incomplete and page No.15 of the affidavit was missing and further denied that, the Returning Officer committed error and wrongly accepted the nomination papers of this respondent.
10. The respondent further admits the calendar of events for conduct of election as true but denied the contention of the petitioner that the election agents of the petitioner were not 8 allowed inside the counting booth and were sent out and further denied the VVPAT slips were not checked properly and EVM was not functioning properly and further stated that the respondent is not aware about any representation made by him regarding defective VVPAt slips.
11. The respondent further admits that he was declared as returned candidate since he polled highest number of votes in the election and the result was announced on 23.05.2019 and further contended that the grounds stated by the petitioner for setting aside the election of the respondent as returned candidate are baseless and frivolous. Therefore, the election petition filed by the petitioner is liable to be dismissed with exemplary costs to the respondent.
12. Based upon the rival pleadings, this Court framed the following issues:
i) Does the petitioner prove that the election of the respondent as returned candidate of Bagalkot Constituency in the parliament Election has to be set aside as void, as it was materially affected due to improper acceptance of the nomination paper of the respondent even though the 15th page of the affidavit accompanying the nomination paper of the respondent was missing?9
ii) Does the petitioner prove that the result of the election was materially affected as there was irregularity in the process of conducting the election by not allowing the agent of the petitioner at the time of counting the minimum number of the Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) slips?
iii) Does the petitioner prove that the election result was materially affected for not having checked at least five Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) slips of each Assembly Constituency in the presence of the Counting Agents of the candidates?
iv) Does the respondent prove that the Election Petition is barred by limitation as per Section 81 of the Representation of People Act, 1951?
v) What order?"
13. The petitioner to prove his contentions himself
examined as PW-1 and also examined his agent as PW-2 and got marked nine documents as per Ex.P-1 to P-9. On behalf of the respondent, he himself examined as RW-1 and no documents were marked. The Returning Officer and Deputy Commissioner, Bagalkot-
Sri. R.Ramachandra, examined as court witness as CW-1 and got marked Exs.C-1 to C-4 are the video DVS/CDs (Exs.C3 & C4 marked with consent).
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14. Heard the arguments of Sri. Shivaraj C. Bellakki, learned counsel for the petitioner and Sri. S.P. Kandagal, learned counsel for the respondent and perused the records.
15. Before going to the appreciate the evidence of the witnesses on record it is worth to mention some of the admitted facts as follows:
i) It is an admitted fact the petitioner herein contested the Lok Sabha election for the Bagalkot constituency which was held on 23.04.2019 and the election notification was notified on 28.03.2019 as per Ex.P-1 issued by the Ministry of Law and Justice (Legislative Department).
ii) It is also and admitted fact the petitioner contested as an independent candidate in the said election and who was a defeated candidate and Ex.P-2 is his nomination papers.
iii) it is also not in dispute the respondent has contested as a candidate from the BJP party and returned candidate for the said constituency and he has filed nomination papers as per Ex.P-3 and his affidavit in Form No.26 is marked as Ex.P-4 and he was a sitting 11 Member of Parliament of the same constituency for the fourth time.
iv) It is also not in dispute that, the congress candidate Smt. Veena Kasappannavar also contested the same election and lost and whose agent raised objection, he same was over ruled by the Returning Officer and accepted the nomination papers of the petitioner as per Ex.P-5(b), the respondent and the congress candidate. Ex.P-6 is Form No.7-the list of candidates who have contested the election after accepting their nominations.
v) It is also not in dispute the voting were counted on 23.05.2019 and at the end, the respondent was the returned candidate and declared as 'won' in the said election and elected as Member of Parliament. The Ex.P-7 is Form No.21C, the certified copy of the declaration of the results.
vi) Ex.P-8 is From No.21E, the details of election, number of votes secured by each candidates also not in dispute.
16. On the background of these admitted facts, now let me look into the grounds urged by the petitioner and the evidence led by Pw-1 in support of his case and issues framed by this Court. 12
17. Before discussing Issues Nos.1 to 3 it is necessary to decide the Issue No.4 in respect of maintainability of the petition due to delay in filing the petition as per the objections raised by the respondent in the written statement. The respondent after appearance in pursuance of notice, filed written statement taking contention that the election petition is barred by limitation as per Section 81 of the RP Act.
18. Section 81 of the RP Act provides within 45 days from the date of declaration of results of the election of the returned candidate in respect of questioning the grounds mentioned in Section 100 and 101 of RP Act and the petition is required to file before this Court. Admittedly, the election of the Bagalkot constituency was held on 23.04.2019. The votes were counted and declared the winning of the respondent as returned candidate on 23.05.2019. This petition came to be filed on 8.7.2019. After declaring of the results, the limitation of 45 days starts from 24.05.2019 and the 45th day falls on 07.07.2019 which is a 'Sunday'. Therefore, the petition came to be filed on the next day of opening of the Court i.e. on 08.07.2019. On calculation of the 13 limitation, the petition is filed exactly on the 46th day since the 45th day being Sunday, it was filed by the next day on Monday. As per Section 10 of the General Clause Act, the petition can be filed on the next working day if the period of limitation expires on the holiday. The counsel for the respondent also not seriously disputed the same during the trial and therefore, I hold the respondent failed to prove that the petition was barred by limitation as per Section 81 of the RP Act. Hence, the judgment relied by the petitioner in the case of Tarun Prasad Chatterjee v. Dinanath Sharma reported in AIR 2001 SC 36, in the case of Manohar Joshi v. Nitin Bhaurao Patil and Ors. reported in AIR 1996 SCC 796, in the case of Chandra Kishore Jha v. Mahavir Prasad and Ors. reported in AIR 1999 SCC 3558 is not required to be discussed, as it supports the case of petitioner that the petition is filed within the time and respondent also accepted the same, as there is no delay. I answer issue No.4 in the negative against the respondent.
19. Issue No.1: The petitioner raised a main ground in his petition that nomination papers of the respondent was defective and page No.15 of the affidavit was missing but the same was not 14 considered by the Returning Officer in spite of objection raised by the agent of the Congress candidate which was materially affected due to improper acceptance of the nomination papers of the respondent. In this regard the petitioner himself examined as PW-1 and he has reiterated in his evidence about the contention stated in the petition. In support of this contentions, he has got marked Exs.P-3 which is the nomination papers of the respondent and the Ex.P-4 is the affidavit filed by the respondent under Form No.26 accompanying with the nomination papers. Ex.P-5(a) is the objection raised by the agent of the Congress candidate and Ex.P- 5(b) the decision taken by the returning Officer by overruling the objection and acceptance of the nomination of the respondent.
20. In the cross examination PW-1 has admitted he has not verified the original nomination papers and the affidavit filed by the respondent and also not obtained any certified copy of the nomination papers as well as affidavit under Form No.26 before this Court while filing the petition. But he has stated, he has obtained internet copy of the affidavit of the respondent filed under Form No.26 along with the nomination papers. He also admitted in the 15 evidence and the contention of the respondent is that Form No.26 filed by the respondent and page No.15 in the affidavit in Ex.P-4 is very much available. On perusal of Ex.P-4 marked by the petitioner in his evidence is the affidavit of the respondent and page No.15 is very much available which is shown as Part-B (in Kannada) and Exs.P-3 and 4 were in accordance with the Rules and the Act.
21. The Court also examined the Returning Officer- Ramachandara, who is Deputy Commissioner examined as CW-1. He has identified Ex.P-4 and he has stated, the affidavit filed under Form No.26 is in order and there is no defective in the affidavit. The evidence of the CW-1 and the Ex.P-4 affidavit of the respondent clearly go to show that the affidavit is in accordance with Rule 4A of the RP Act. That apart, the petitioner failed to obtain certified copy of Ex.P-4 from the office of the Returning Officer to confirm whether page No.15 is very much available or not, though it is admitted by the parties as well as CW-1 that after the scrutiny of the nomination papers and after acceptance of the nomination papers, the same were web hosted on the INTERNET for viewing the same by public. Though the petitioner has contended 16 that Page No.15 was missing but the missing document of the Internet copy of affidavit has not been marked by the petitioner and also not confronted to CW-1. Therefore, the contention of the petitioner cannot be acceptable that the Returning Officer wrongly accepted the nomination papers as it was defective cannot be acceptable and he has failed to prove that page No.15 of the affidavit in Ex.P-4 is missing.
22. Now coming to objection raised by the agent of the Congress candidate-Veena Kashappanavar in respect of the affidavit of the respondent during the scrutiny, the scrutiny proceedings is marked by the petitioner as per Ex.P-5 and objection raised by one of the candidates agent is marked at Ex.P-5(a) the same was admitted by the respondent in his cross-examination and also the Court witness-CW-1 Returning Officer in his cross-examination made by the petitioner.
23. On perusal of the Ex.P-5 it shows as under:
Parvatagouda C. Gaddigoudar and objection by (1) Veena Kashappanavar.17
Nomination No.11(PC Gaddigoudar) dated 01.04.2019 objections by No.1(Veena Kashappanavar)
(a) Objection that the columns as per the ECI format for affidavit(Form No.26) is not mentioned at all.
(b) The said portion is marked as Ex.P5(a).
During the scrutiny the Returning Officer
considered all the objection as minor/technical in nature not substantial in nature and the objection filed against the candidate was considered as simple/minor and rejected. The same is marked as Ex.5(b).
24. On perusal of the Ex.P5(a) & (b) shows the congress candidate raised objection in respect of the affidavit of the respondent where Form No.26 not mentioned at all. It is also admitted by PW1 and Returning Officer that one candidate is permissible to file maximum four separate nomination papers and the objection raised by the congress candidate in respect of nomination papers filed by the respondent on 01.04.2019 and it is also admitted by CW-1 that if any one of the nomination papers is in the proper form that can be accepted irrespective of rejection of the defective nomination papers. In this regard the learned counsel 18 for the respondent has brought to the notice of this Court that Ex.P- 3 nomination paper filed by the respondent is dated 4.4.2019 which was accepted by the Returning Officer. Ex.P-3 shows the nomination paper filed on 4.4.2019 at 11.35am. Ex.P-4 affidavit in Form No.26 was accompanied with the nomination paper Ex.P-3 which also reveals the stamp papers was purchased on 3.4.2019 and affidavit was sworn on 4.4.2019 later it was filed. Whereas the objection raised on the Form No.26 accompanying the nomination papers was filed on 1.4.2019 in Ex.P-5 though it may be defective whether the rejection of the said nomination paper or acceptance of the nomination papers is not relevant as the respondent filed one more nomination paper on 4.4.2019 and the same was accepted by the Returning Officer which is Ex.P-3 and affidavit is Ex.P-4.
25. That apart PW-1 and PW-2 have admitted they have not raised any objection against the defective affidavit of the respondent in Form No.26 though the congress candidate objected in respect of non-mentioning the affidavit in Form No.26 but the contention of the petitioner is all together different that page No.15 in the affidavit was missing. This was not an objection raised 19 before the Returning Officer. On perusal of Exs.P3, P4 and P5, the evidence of CW-1 and RW-1, it is clear that the affidavit filed by the respondent was in order and the same is rightly accepted by the Returning Officer. In view of the findings and Exs.P-3 and 4 are in accordance with the Rules. Hence, Ex.C1-the DVD produced by CW-1 the video graph taken by the Returning Officer during the scrutiny of the nomination papers and viewing the said DVD does not required. Therefore, the contention raised by the petitioner that accepting the nomination papers by the Returning Officer was materially affected as per Section 100(d)(i)of the RP Act not sustainable and the petitioner utterly failed to prove issue No.1 that the acceptance of nomination papers is improper which was materially affected the result of the petition. Hence, I answer issue No.1 in the negative against the petitioner.
26. Issue No.2: The another ground raised by the petitioner is that his agent the PW-2 was not allowed into the Counting Center who is an authorized agent of the petitioner and at the time of counting the minimum number of Electronic Voting Machine and Voter Verifiable Paper Audit Trail (VVPAT )slips. In support of his 20 contention, he has examined PW-2 who is the gent of the petitioner-namely Tukaram Shirabur. The petitioner has stated in his evidence that he has nominated PW-2 as his agent in the election though he was allowed by the Returning Officer during the scrutiny but not allowed him at the time of counting when it was started at 7.00am and they insisted for production of the fresh Identity card. Even though an Identity Card-Ex.P-9 has been issued by the Returning Officer for having appointed him as an agent but they refused to allow PW-2 into the Counting Center when the strong room was opened where the EVMs were kept in the sealed condition. Thereby, the Returning Officer committed irregularity in the process of conduct of election which was materially affected. In support of his contention, PW-2-Tukaram also deposed that he has been appointed as an agent for the petitioner. The election Identity Card issued as per Ex.P-9. He also speaks about the objection raised by the Congress candidate against the nomination papers of the respondent which was already discussed in issue No.1 and he further stated on the date of counting at 7.00am, he went to the Counting Center and requested the police to allow him inside the Center but they have not allowed 21 him to go inside. They demanded to show the Election Counting Agent Card and he has not obtained any such card. Thereafter, at 10.30 am the candidate who is the petitioner came near the Counting Center, then he went along with the petitioner. Thereafter, the petitioner was checking the electronic machines. In the cross examination, the counsel for the respondent has denied that he was not allowed into the counting center as he has not shown the ID card Ex.P-9 to the police in order to allow him to go inside the Counting Center. But he has denied. In this regard, CW- 1-the Court Witness, who is the Deputy Commissioner and Returning Officer, has stated in his evidence that he has conducted the election as per the Rules and Regulations. All the duties performed by him was transparent, free and fair and he has strictly adhered to the regulation of the Election Commission of India. In the cross examination the counsel for the petitioner got admission that PW-2 was appointed as agent of the petitioner and issuance of Ex.P-9-Indentity Card for election agent and CW-1 also admits, Ex.P-9 is enough for admitting the agent at the time of scrutiny as well as allowing him to the Counting Center. There is no need for 22 separate Identity Card for the agent for allowing to be present while counting.
27. The counsel for the petitioner contended that, at 7.00am PW-2 went to the venue of the Counting Center and he was not allowed. But it is an admitted fact that both PW-1 and PW- 2 went inside the Counting Center at 10.30am. The contention of the petitioner that since his gent was not allowed till 10.30am thereby prevented the petitioner during opening of the strong room and removing the EVM machines for the purposes of counting. In this regard CW-1-the Returning Officer has stated, the strong rooms were opened in the presence of the counting observers specially nominated by the Election Commission of India and the Returning Officer also stated it is not mandatory that the candidate or their agent must be present while opening of the strong room and says it is only an advisory. The petitioner has not produced any Regulations or Rules to show the presence of the contesting candidate and their agent must be present while opening the strong room or the strong room must be opened only in the presence of the agent or the candidates. On the other hand CW-1 has stated, it 23 is mandatory to open the strong room in the presence of the counting observers specially nominated by the Election Commission of India and it is only an advisory to open the strong room in the presence of the candidate or their agent if they present. If the agent or the candidate were not present, there is no bar or condition precedent that the strong room shall not be opened without the presence of the agent/candidate. The Rules or Act also not provides compulsory presence of the candidate/agent while opening of the strong room. That apart, CW-1 produced CDs and DVDs-Exs.C1 to 4 and other unmarked CDs before the Court and stated, the entire election process were recorded by video graph. The counsel for the petitioner as well as the respondent were allowed to view the CDs and DVDs in the presence of the Assistant Registrar of the High Court and there is no complaint that there were no observers present while opening the strong room.
28. On viewing Exs.C2/C3-DVD/CD it reveals though PWs-2 and 3 were seen together at 10.14 am, the petitioner arguing with the returning officer and the Returning Officer allowed the petitioner and his agent inside the counting center. However, it is not able to 24 view in the CDs-Exs.C-2 to 4 that PW-2 was not allowed inside the counting booth at 7.00 am but no scenes available in the CD/DVD. However, the presence of the agent or the candidate may not be necessary while opening of the strong room. The strong room was opened by the Deputy Commissioner in the presence of the observer and it is tightly sealed and had video graphed while opening of the strong room. Such being the case, question of doubting the conduct of election with regard to the opening of the strong room is not correct. On the other hand, CW-1 taken all the measures for opening of the strong room in the presence of the observers.
29. The learned counsel for the petitioner also brought to the notice that as per Section 40 of the RP Act regarding appointing the election agent and the appointment shall be given in prescribed manner to the Returning Officer and Section 50(2) of the RP Act where the Returning Officer has power to appoint the political party can nominate any person as their agent of their candidate and Rule 53 of Conduct of Election Rules, the Returning Officer has power to allow any agent shall watch the counting at any particular counting 25 table or group of counting tables. The appointment of PW-2 by CW- 1 on the nomination made by PW-1 and issuance of Ex.P-9 is not in dispute and from the evidence it is reveals PWs.1 and 2 were present till evening while declaring the result of the election and it is not mandatory to open the strong room without the presence of the either the candidate or his agent. Even otherwise, if PW-2 was not allowed inside while opening of the strong room, that cannot be said it was an irregularity in the process of conducting the election and to set aside the returned candidate as void. On the other hand CW-1 has stated that he has examined the five Electronic Voting Machines at the end of the counting, which will be discussed in the next Issue No.3 and I hold the petitioner has failed to prove the ground that non-allowing his agent at 7.00am or 8.00am and 10.30am which has materially affected the conduct of elections. Hence, I answer issue No.2 in the negative against the petitioner.
30. Issue No.3: The petitioner has also taken a contention that it is mandatory to check at least 5 Electronic Voting Machines and VVPAT slips of each assembly constituency in the presence of 26 counting agents. The non-compliance of provision of the Constitution or of the RP Act or Rules as per Section 100(d)(iv) of RP Act.
31. Section 100 of RP Act provides the grounds for election to be void. Section 100(1)(d)(iv) prescribes non-compliance of the provisions of this Act or Rules, the High Court has power to declare the election of the returned candidate to be void. It is also required to be proved by the petitioner that as per the Rules, the VVPAT slips shall be checked and compared with the votes available in EVMs. CW-1 has stated that it is not mandatory to compare VVPAT slips with the votes available with all EVMs and says after completion of counting of votes, it is mandatory to check only 5 VVPAT slips boxes in every assembly segment in the presence of counting observes and 5 VVPAT were checked by the counting staff in the presence of observers. Accordingly, he has complied the procedure and he did not find any differences in votes and also contended that the petitioner has not raised any objection while counting that there were differences in the VVPAT slips boxes and Control Unit of the EVM and also denied there were several 27 irregularities committed. And suggestion made by the counsel for the petitioner to help the BJP candidate he has conducted the process of election in unfair manner, the same was denied by the CW-1. Even on perusal of the cross-examination made by the respondent, he has stated, it is not mandatory for comparison of VVPAT slips boxes and Control Unit only in the presence of candidate or his agents.
32. On perusal of the evidence, it is a procedure to compare with five VVPAT slips boxes of every assembly segment in the presence of the counting observes and it need not be in the presence of the agent or candidate. That apart, the petitioner and his agent-PW-2 were present after allowing them at 10.30am. There were no such allegations or complaints raised by the petitioner before CW-1 while counting of votes at the Centre. I have also viewed the Ex.C1 and Ex.C4 and episode at 7.15pm reveals the RETURNING OFFICER instructing the officials to repack the VVPAT machines by putting the slips inside and he is further instructing the officials it should be repacked and sealed, which clearly reveals the VVPAT were checked for comparison of the votes 28 found in the EVM and VVPAT slips in the boxes. Therefore, it cannot be said the Returning Officer committed any irregularity in not checking the VVPAT slips and EVM machines of 5 segments in each MLA constituency.
33. That apart, the counting of the VVPAT slips and voting found in the EVMs to be compared whenever the margin of wining votes of winning candidate is narrow. Here in this case on perusal of the Ex.P-8 is number of votes polled of each candidate. The respondent secured 6,64,638 the 3rd candidate congress candidate secured 4,96,451 and the petitioner who is an independent candidate secured 5,489 votes. The petitioner also lost the deposit. The returned candidate secured more than 6,59,000 votes as against the petitioner and almost 1,65,000 votes more than the next rival Congress candidate. Therefore, the contention of the petitioner cannot be acceptable that VVPAT machines opened and rechecked the petitioner will not secure any more votes.
34. Though the petitioner has stated regarding non checking of VVPAT slips by the counting officials and he has made complaint to the counting official but they have not responded and 29 hence after declaring the results, he has made complaint to the Election Commission of India in the Public Grievance Portal but he has admitted in the cross examination he has not produced any document to show he has lodged any complaint on 25.5.2019. CW-1-Returning Officer also stated he has not received any such complaint either from the petitioner or forwarded any such complaint by the Election Commission of India. Therefore, the contention of the petitioner cannot be acceptable that the VVPAT slips not verified by the Returning Officer at the end of the counting of the votes and as already held, it is viewed from the CD, the Returning Office directing his officials to close the VVPAT machines by putting the vote slips and seal it. Therefore, question of drawing any inference that the Returning Officer committed any irregularity in conduct of election which was materially affected to set aside the election of the returned candidate, as void does not arise.
35. The learned counsel for the respondent has relied upon the judgment of the Hon'ble Supreme Court in the case of Tek Chand v. Dile Ram reported AIR 2001 SC 905, the Hon'ble Supreme Court held at para 21 as under:
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" 21. This Court in Shiv Charan Singh v. Chandra Bhan Singh, after referring to Vashist Narain case and Chhedi Ram v. Jhilmit Ram, dealing with an election petition filed on the ground under Section 100(1)(d)(i) itself, has clearly stated that the burden of strict proof is on election petitioner; it is not permissible to act on conjectures and surmises; mere fact that number of votes polled by a candidate, whose nomination was improperly accepted, was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes not by itself was conclusive proof of the material effect on the election of the returned candidate. Paras 10 and 11 of the judgment read thus :-
"10. In the instant case Shiv Charan Singh the appellant had polled 21,443 votes and Roshan Lal had polled 16,946 the next highest number of votes. There was thus a difference of 4497 votes between the votes polled by the appellant and Roshan Lal. Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17,841 votes which were wasted. The election petitioners did not produce any evidence to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate. On the other hand the appellant who was the returned candidate produced 21 candidates representing cross-section of the voters of the constituency. All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant. The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court's decision in Vashist Narain Sharma case (AIR 1954 SC 513). The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected. The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose nomination was improperly accepted had secured 17,841 votes therefore it could reasonably be concluded that the election was materially affected. In our opinion the High Court committed error declaring the appellant's election void on speculations and conjectures.31
11. Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal. In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected. The High Court's findings relating to the material affect on the result of the election are based on conjectures and surmises and not on any evidence. The legislature has, as noted earlier, placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma (AIR 1954 SC 513) and in Paokai Haokip (1969) 1 SCR 637 : (AIR 1969 SC 663) case. It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge. But in spite of the fact that this Court had highlighted this question on more than one occasion, Parliament has not amended the relevant provisions although the Act has been subjected to several amendments. It is manifest that law laid down by this Court in Vashist Narain Sharma case and Paokai Haokip case holds the field and it is not permissible to set aside the election of a returned candidate under Section 100(1)(d) on mere surmises and conjectures. If the improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonable certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes. The Courts are ill-equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate. Any speculation made by the Court in this respect would be arbitrary and contrary to the democratic principles. It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations. Many times electors cast their vote on consideration of friendship, party affiliation, local affiliation, caste, religion, personal relationship and many other imponderable considerations. Casting of votes by electors 32 depends upon several factors and it is not possible to forecast or quess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate. No inference on the basis of circumstances can successfully be drawn. While in a suit or proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings, it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters, who may have voted for the improperly nominated candidate. In the instant case there were 11 contesting candidates. If Kanhaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates. There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanhaiya Lal may not have gone to exercise their vote in favour of the remaining candidates. It is probable that in the absence of Kanhaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate. It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanhaiya Lal would have voted for the next candidate Roshan Lal. It is not possible to forecast how many and in what proportion the votes would have gone to one of the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates. In this view, the result of the returned candidate could not be declared void on the basis of surmises and conjectures."
(Emphasis supplied) Further in our country as the things stand, all voters do not belong to or are affiliated to one or the other political party. Large majority of them may be neutral or independent or not committed. In this case, Nikka Ram contested the election as an independent candidate, obviously, on a symbol other than those allotted to recognized political parties. Hence it cannot be said that all 2287 votes secured by Nikka Ram were from common vote bank of BJP. May be, many out of those voters did not belong to any political party".
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36. In view of the judgment of the Hon'ble Supreme Court, the votes secured by the respondent is highest margin on the candidate who secured the next highest votes not by itself was conclusive proof or material affect on the election of the returned candidate and here the petitioner secured only 5489 votes and lost the deposit. Therefore, the question of taking a contention that the conduct of the election materially affected the petitioner and the evidence not acceptable to declare the election of the returned candidate, as void. The petitioner utterly failed to prove the issues of non-checking the VVPAT slips and EVM has materially affected the conduct of election. Hence, I answer Issue No.3 in the negative against the petitioner.
37. Though during the cross-examination of the petitioner it was elicited by the respondent counsel that again he has filed nomination to contest the graduate constituency for MLC election on 5.10.2020 and his nomination papers was rejected and a criminal case was registered against him by the Dharwad Sub- Urban police for forging the signature of 10 proposers in the nomination paper and again he has contested the bye-election of 34 Athani MLA constituency held in the year 2020 and he was defeated and filed Election Petition before this Court, which is pending, are all subsequent events and this Court not required to discuss or give any opinion on those allegations against the petitioner and the petitioner also filed another Election Petition against the winning candidate and it has to be considered in the said case and the petitioner being a contesting candidate, he has right to challenge the election of returned candidate if he is having any grievance and materially affected the conduct of election. Therefore, the question of giving any opinion on filing of the petitions by the petitioner against the winning candidate and Athani MLA constituency, will have no consequence in this case.
38. In view of my findings on Issue Nos.1 to 3 as negative against the petitioner holding that the petitioner failed to prove that the conduct of election by the Returning Officer and accepting the improper nomination of the respondent which materially affected. Therefore, the election of respondent as returned candidate does not required to be set side as per Section 100(1)(d) of RP Act.
Accordingly, I proceed to pass the following order. 35 The Election Petition filed by the petitioner under Sections 80 and 81 read with Section 100 of the Representation of People Act, 1951, is hereby dismissed.
By looking to the facts and circumstances of the case, the parties are directed to bear their own costs.
The Exs.C1 to C4 and the unmarked DVD/CDs are to be returned to the Deputy Commissioner's Office, Bagalkot, after the expiry of the appeal period.
Sd/-
JUDGE kmv