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Judgment
209 paragraphs · 3,691 words,,
[1] This petition has been filed by the petitioner to call for the documents viz., Serial NOS. 15 to 20 of Schedule II (annexed with M.C. (EP) NO. 16",,
of 2018), from the respective authorities and on receipt of the same, allow the petitioner to inspect the documents and take certified copies thereof.",,
[2] Heard Mr.Gunedhor the learned counsel for the petitioner and Mr. H.S. Paonam senior counsel for the respondent.,,
[3] Mr. Gunedhor the learned counsel for the petitioner submitted that pursuant to the order of the Honorable Apex Court dated 5.3.2020 in,,
S.L.P.NO.10804 of 2019, the petitioner has filed the instant petition to call for the documents listed out in the petition. He would submit that only the",,
documents that are required to be considered and decided by his court are the documents mentioned at serial NOS. 15 to 20 of schedule. Since these,,
documents are not public documents and copy of the same can only be obtained by the authority of this Court, the petitioner has filed the present",,
petition.,,
[4] The learned counsel further submitted that there has been improper reception, refusal and rejection of votes by means of postal ballot and there",,
has been non-compliance with the provisions of the Representation of people Act, 1951, the Rules, 1961 and the guidelines issued by the Election",,
Commission of India from time to time. In the present case, 298 votes were recorded by the postal ballots and 14 postal ballots were rejected. But the",,
margin is only by 19 votes based on the postal ballots count, which is less than the total postal ballots recorded. As such, re-verification and re-",,
counting of all the postal ballot papers are mandatory as per the guidelines issued by the Election Commission of India. In the above background, if the",,
documents mentioned in Serial NOS. 15 to 20 of schedule II are not called for inspection and permitted the petitioner to take certified copies of the,,
same, the petitioner would be put to irreparable loss and hardship.",,
[5] Per contra, the learned counsel for the first respondent contended that as per the order of the Honorable Apex Court, the petitioner is required to",,
place all the documents at Schedule I and Schedule II of M.C. (EP) NO.16 of 2018 along with the present application for appropriate decision by this,,
Court. He would submit that if the documents listed out at Serial NOS. 15 to 20 of schedule II are allowed to call for by this Court, it would be",,
virtually facilitating the petitioner in having a roving and fishing enquiry as there is no clear and specific pleading about the relevancy and necessity of,,
the said documents and thus, prayed for dismissal of the petition.",,
 [6] Mr. H. S Paonam, learned senior counsel for the 1st respondent has produced the following citations for supporting his case which is as follows:",,
(i) Ram Sevak Yadav Vs Hussain Kamil Kidwai & others, AIR 1964 SC 1249",,
“5. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material,,
facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under,,
the Code of Civil Procedure when trying a suit. But the power which the civil Court may exercise in the trial of suits is confined to the narrow limits of,,
Order 11 of the Code of Civil Procedure. Inspection of documents under Order 11 of the Code of Civil Procedure may be ordered under Rule 15, of",,
documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18(2) of",,
other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of,,
the ballot papers cannot be made under Order 11 of the Code of Civil Procedure. But the Election Tribunal is not on that account without authority in,,
respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the",,
ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in sections 100(1)(d)(iii), 101, 102 and",,
Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order 11 of the Code of Civil",,
Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1).",,
An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the court",,
would be justified in granting an order for inspection provided two conditions are fulfilled:,,
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his,,
case; and,,
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers,,
is necessary.,,
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out,,
evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case,,
so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or",,
believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.",,
Reliance was placed both before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali1 in support of the plea that,,
mere absence of particulars will not furnish a ground for declining to grant inspection and that a defeated candidate is entitled to establish his case that,,
void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In,,
Bhim Sen case1 a petition was filed for setting aside an election of a candidate in a reserved seat in a double-member constituency. The principal,,
ground in support of the petition was that it was incumbent upon the returning officer to go into each case of double voting in order to reject one of the,,
two votes cast in contravention of Section 63(1) of the Representation of the People Act, and that the returning officer having failed to discharge his",,
duty to reject ballot papers cast in contravention of Section 63 the petitioner believed that the successful candidate “could receive many void,,
votesâ€. The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the,,
disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void,,
votes had in fact been counted in favour of the successful candidate and that the words “alleges†and “did†be substituted respectively for the,,
words “believes†and “couldâ€. Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This,,
application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the,,
amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and nature of the void",,
votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore",,
be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the",,
pleadings. We do not think that Bhim Sen case1 lays down any general principle that a party is entitled without making allegations of material facts in,,
support of his plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing",,
that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time",,
of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to,,
the elaborate Rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each,,
case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot",,
papers. In Bhim Sen case 22 ELR 288 the Court was primarily concerned with the question whether amendment of the petition to set aside an,,
election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of Section 63(1) of the Act by,,
the returning officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had,,
received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were,,
37 votes which were void. Thereafter the applicant applied to substitute the words “alleges†for “believes†and “did†for “couldâ€. In,,
that case the Court was not concerned to decide whether the order for inspection was properly made. The propriety of the order granting inspection I,,
does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the",,
circumstances, be granted and the observation of the court that “definite particulars about the number and nature of the void votes that had been",,
counted could only be supplied after inspection of the ballot papers†was not intended to be a general statement of the law that whenever an,,
allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate,",,
definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may",,
claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of,,
the claim made.â€,,
 (ii) Basanagouda Vs. Dr. S. B. Amarkhed & others, (1992) 2 SCC 612.",,
 “8. This is an inclusive explanation and seizure of polling station, taking possession thereof and making polling authorities to surrender the ballot",,
papers or voting machines and doing of any other act which affects the orderly conducting of elections etc. have been enumerated. They are only,,
explanatory and inclusive but not exhaustive. The Parliament used words of width with generality to lug in or encompass diverse acts or omissions,,
innovated with ingenuity to escape from clutches of law. It is common knowledge that in the recent past there have been various complaints regarding,,
booth-capturing. The tendency to over-awe the weaker section of the society and to physically take over the polling booths meant for them is on the,,
increase. Booth-capturing wholly negates the election process and subverts the democratic set-up which is the basic feature of our Constitution.,,
During the post-independence era ten parliamentary elections have entrenched democratic policy in this country which cannot be permitted to be,,
eroded by showing laxity in the matter of booth-capturing which has now been made an offence under Section 135-A of the Act. The allegation of,,
booth-capturing and rigging, if proved, is a corrupt practice under Section 100(1)(b) and materially affects the result of the election under clause (1)(d)",,
and also is a disqualification. Therefore, the allegation must be specifically pleaded giving material particulars. The nature and various acts of capturing",,
booths were enumerated in the explanation to Section 135-A. As stated they are only illustrative but not exhaustive. Diverse ways would be innovated,,
to capture booths and rigging. The court while exercising its power under Order XI Rule 14 and Order XVI Rule 6 CPC would also have to keep in,,
view the rigour of sub-rule (1) of Rule 93 of the Conduct of the Election Rules, 1961 for short ‘the Rules’ which provides production and",,
inspection of election papers thus:,,
“93. (1) Production and Inspection of Election Papers while in the custody of the district election officer or, as the case may be, the returning",,
officerâ€",,
 (a) the packets of the unused ballot papers with counterfoil attached thereto;,,
(b) the packets of used ballot papers whether valid, tendered or rejected;",,
(c) the packets of the counterfoils of used ballot papers;,,
(d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or sub-section (2) of Section",,
152; and,,
(e) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by,",,
or produced before, any person or authority except under the order of a competent court.",,
(2) Subject to such conditions and to the payment of such fee as the Election Commission may directâ€",,
(a) all other papers relating to the election shall be open to public inspection; and,,
(b) copies thereof shall on application be furnished.,,
(3) Copies of the returns by the returning officer forwarded under Rule 64, or as the case may be under clause (b) or sub-rule (1) of Rule 84 shall be",,
furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment of a fee of two rupees for",,
each copy.â€,,
This Court while considering the effect of Rule 93 held in Hari Singh v. Hira Sing (1984) 2 SCC 36 : (1984) 1 SCR 93 2that a perusal of this Rule,,
clearly shows that the Legislature intended to make clear distinction between one set of documents and another. So far as counterfoils and the marked,,
copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the court was fully satisfied that a cast",,
iron case was made out for the same; whereas documents mentioned in clauses (a) and (d) of sub-rule (2) of Rule 93 could be liberally allowed to be,,
inspected. This was also the view in Ram Sewak Yadav v. Hussain Kamil Kidwai (1964) 6 SCR 238 : AIR SC 1249 : 26 ELR 1. 4Thus to maintain,,
the secrecy of ballot papers unless adequate material facts are on record which alone would afford adequate basis to exercise the discretion by the,,
court; the packets or the used ballot papers with counterfoils attached thereto or the packets of used ballot papers whether valid, tendered or rejected",,
cannot be opened. Equally the packets of declarations by electors and the authorisation of their signatures shall not be opened unless ordered by the,,
court in that behalf. The court shall not permit a roving enquiry to enable the defeated candidate/election petitioner to have access thereto to fish out,,
the grounds. The High Court would therefore, be circumspect to order summoning the records covered under Rule 93(1). To effectuate the objects of",,
Section 135-A of the Act it may be open to the rule making authority to have fresh look into the mandatory language of Rule 93(1), so as to bring it in",,
conformity with Section 135-A of the Act.,,
The High Court in the impugned order has held that though no factual foundation has been laid in the election petition, but since there are",,
Documents listed in MC
(EP) NO. 15 of 2018","Documents listed in
Schedule I and Schedule
II of MC (EP) NO. 16 of
2018",
Documents in Serial
NOS. 1 to 15","All the documents in
Schedule I",
Documents in Serial
NOS. 16 to 19","Documents in Serial
NOS. 1 to 4 of
Schedule II",
Documents in Serial
NOS. 23 to 32","Documents in Serial
NOS. 5 to 14 of
Schedule II",
Documents in Serial
NOS. 39 to 68","Documents in Serial
NOS. 21 to 50 of
Schedule II",
SL.
NO.","Particulars        of
documents",From whom to be called
15,"Packets of unused postal ballot papers with
counterfoils attached thereto","The District Election Officer/Returning
Officer of No.
11-Sagolband Legislative Assembly
Constituency, Manipur.
16,"Packets of used postal ballot papers whether
valid, tendered or rejected","The District Election Officer/Returning
Officer of NO.
11-Sagolband Legislative Assembly
Constituency, Manipur.
17,"Packets of the counterfoils of used postal ballot
papers","The District Election
Officer/Returning Officer of NO.11-
Sagolband Legislative Assembly
Constituency, Manipur.
18,"Packets of the marked copy of the electoral
roll","The District Election Officer/Returning
Officer of NO.
11-Sagolband Legislative Assembly
Constituency, Manipur.
19,"Packets containing registers of voters in from
17","The District Election Officer/Returning
Officer of NO.
11-Sagolband Legislative Assembly
Constituency, Manipur.
20,"Packets of the declarations by the electors and
the attestation of their signatures in respect of
postal ballot","The District Election Officer/Returning
Officer of NO.
11-Sagolband Legislative Assembly
Constituency, Manipur.
improperly received by the authority except a general statement as regards to violation of the guidelines and instructions issued by the Election,,
Commission of India.,,
[19] The further submission of the learned counsel for the first respondent is that it is not correct that less number of postal ballots has been counted,,
and then postal ballots recorded thereby revealing the true intent of the petitioner for roving and fishing enquiry which is not permissible under the law.,,
The said submissions of the learned counsel for the first respondent cannot be countenanced at this point of time, as the same would require oral and",,
documentary evidence.,,
[20] The learned Counsel for the first respondent then submitted that the petitioner having failed to make pleading relating to material facts and,,
material particulars for supporting his petition in respect of the grounds taken i.e., improper receipt of postal ballot papers has filed MC (EP) No. 16 of",,
2018 for enabling to make a roving and fishing enquiry to find some irregularity in the process of counting of ballot papers which has never been,,
objected on the eve or during the process of counting either by the petitioner or his agent and hence, the same is liable to be dismissed. In support, the",,
learned counsel relied on the decisions of the Honorable Apex Court in the following cases I) Ram Savak Yadav vs. Hussian Kamil Kidwai, AIR",,
1964 SC 1249 and Basanagouda vs. Dr.S.B.Amarkhed, (1992) 2 SCC 612.",,
[21] As stated supra Honorable Apex Court in its order dated 5.3.2020 observed that in so far as the documents at serial NOS. 15 to 20 in Schedule,,
II, copy of the same can be obtained by the petitioner only if the Court so order in terms of the relevant Rules 92 and 93 of the conduct of election",,
Rules, 1961, as the case may be. The Honorable Apex Court also further observed that the petitioner to approach the High Court in respect of",,
documents at Serial Nos. 15 to 20 of Schedule II, which application be decided on its own merits afresh by the High court Document-wise, about the",,
relevancy and necessity to produce the same subject to just exceptions. Thus, this Court is now concerned with the Documents at Serial NOS. 15 to",,
20 of Schedule II.,,
[22] The documents to be called for are packets of unused postal ballot papers with counterfoils attached thereto; packets of used postal ballot papers,,
whether valid, tendered or rejected; packets of the counterfoils of used postal ballot papers; packets of the marked copy of the electoral roll; packets",,
containing registers of voters in Form 17 and packets of the declarations by the electors and the attestation of their signatures in respect of postal,,
ballot. Since the aforesaid documents are relevant to resolve the dispute involved in the main election petition, those documents are necessarily to be",,
marked as exhibits in this case. Therefore, this Court is of the firm view that the examination of the documents referred to by the petitioner are",,
relevant and/or necessary to substantiate the allegations leveled by the petitioner in his election petition, and it is not the case of the respondent that",,
these documents are public documents which we readily available. Moreover, no prejudice would be caused if the documents at Serial NOS. 15 to 20",,
of Schedule II are called for in this case and furnished certified copies of the same to the petitioner in order to produce the same in the main election,,
petition. On the other hand, this Court feels that if those documents were not produced and/or exhibited in the main election petition, irreparable loss",,
and hardship would be caused to the petitioner. That apart, the instant petition has been filed by the petitioner in terms of the order of the Honorable",,
Apex Court dated 5.3.2020. Therefore, in the interest of justice and proper adjudication of the controversy involved in the election petition, the present",,
petition is liable to be allowed.,,
[23] Accordingly, the petition is allowed and the documents at Serial NOS. 15 to 20 of Schedule II Annexed with MC (EP) NO. 16 of 2018 are",,
directed to be called for from the respective authorities by petitioner, for which the petitioner has to take necessary batta and pay fees/charges. On",,
production of the documents by the authorities concerned, the petitioner is permitted to inspect the same and apply for certified copies of the",,
documents and then produce the same in the main election petition for marking purpose.,,