Rajankumar Shankarrao Taware and Another vs Ajit Anantrao Pawar

Phukan, J.—This appeal u/s 116A of the Representation of the People Act,1951 (for short 'the Act') arises from the judgment dated June 29, 2001 of the HighCourt of Judicature at Bombay. By the impugned judgment, the High Court dismissedthe election petition.

The election petition was filed challenging the election of the respondentfrom 255 Baramati Assembly Constituency, which was held on 11th September, 1999.The petition was filed by two persons, one was a voter of the constituency and the otherwas the counting agent of the defeated candidate viz. Shri Chandrakant K. Teware. In thesaid election the respondent Shri Ajit Anantrao Pawar defeated his immediate rivalcandidate, Shri Teware by a margin of 50,366 votes. The petition was filed alleging thatcertain mal practices were committed at the time of counting of the votes, u/s 100(1)(d)(iii) of the Act.

The allegations, which are relevant for the present purpose, are statedbelow:-

After the polling, the ballot boxes were to be kept in the MES HighSchool, Baramati as per programme and when the ballot boxes arrived at the said schooland was in the process of unloading, all the boxes were shifted to the Recreation Hall,MIDC area at Baramati. According to the appellants this change was made by theReturning Officer without informing the converting candidates. As the said MIDC area isadjacent to the premises of the Vidya Pratisthan Shikshan Sansthan, which was fullycontrolled by the family of the respondent and in fact the respondent was one of theoffice bearers of the said Pratisthan, this sudden change caused an apprehension in themind of the appellants that it was so done with the oblique motive for replacing genuineballot papers by fake ones. We find from the counter that there was heavy rain atBaramati on 9th September, 1999 and rainwater was also collected around the said HighSchool. Apprehending that there might be rain on subsequent days and the said HighSchool area might be flooded, the Returning Officer changed the venue of keeping theballot boxes for safe custody of the boxes as in the event of rain the school area might beflooded. It was also alleged that during counting of votes it was noticed that in themajority of ballot papers there were signature on the back side of the ballot papers whichwere similar in nature with the same ink and character. It was, therefore, suspected thatgenuine ballot papers were substituted by fake ones. In the polling booth No. 235, 455ballot papers were used and there was no signature of the Presiding Officer on the reverseside of the ballot papers as required under the rules, whereas according to the PresidingOfficer of the said Booth he signed on all the ballot papers on the previous day of polling,suggesting that ballot papers might have been substituted. In this polling booth one ballotpaper of Khed Legislative Constituency was found inside the ballot boxes which wasbrought to the notice of Returning Officer by filing a written complaint (Annexure P-21A)and according to the appellants the complaint was filed at 2.30 p.m. on 6th ofOctober, 1999 i.e. while the counting process was going on but the Returning Officerrefused to receive the same. It was alleged that subsequently the Returning Officerrecorded a note at 3.30 a.m. on 7th October, 1999 and, thereafter, passed necessary orders.On these facts it was also alleged that the Returning Officer was influenced by therespondent in the conduct of election and counting of the votes.

Before we proceed to examine the facts of the present appeal, we mayrefer to the position of law. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, a Constitution Bench of this Court held that power to orderinspection of ballot papers is clearly implicit in Sections 100(1)(d)(iii) 101 and 102 ofthe Act and Rule 93 of the Conduct of Election Rules, 1961 and an order for inspectionunder the Act may not be granted as a matter of course, having regard to the insistenceupon the secrecy of the ballot papers. It was further held that the Court would be justifiedin granting an order for inspection provided two (SIC) are fulfilled:-

(i) the petition for setting aside an election contains adequate statement of thematerial facts on which the petitioner relies in support of his case; and

(ii) the Election Tribunal is prima facie satisfied that in order to decide the disputeand to do complete justice between, the parties, inspection of ballot papers isnecessary.

The Constitution Bench also held that an order for inspection of ballotpapers could not be granted to support vague pleas made in the petition not supported bymaterial facts or to fish out evidence to support such pleas.

In Smt. Sumitra Devi Vs. Shri Sheo Shanker Prasad Yadav and Others, a three Judge Bench of this Court held in an appeal underSection 116A of the Act it has been the consistent practice of the Supreme Court notto interfere with findings on questions of fact unless there is some grave or palpable errorin appreciation of the evidence on the basis of which the findings were arrived at.

While interpreting Clause (d) of Sub-section (1) of Section 100 of the Act,this Court has consistently held that in view of clear language of the provision even if theallegations in the election petition are found to be proved, the election petitioner shouldalso establish that the result of the election was materially affected.

Drawing our attention to paragraph 30 of the impugned judgment, Mr.Lalit, learned counsel for the appellant has submitted that the High Court proceeded on awrong legal proposition. In the said paragraph the learned Judge took the view that inorder to succeed in the election petition, the appellants have at least to create a genuinedoubt in the mind of the Court by establishing circumstances alleged in the electionpetition beyond all reasonable doubt. This approach was wrong in view of the settledposition of law but we find from the impugned judgment that subsequently, the learnedJudge after discussing various decisions of this Court recorded the finding that aftergoing through the records it could not be said that even a genuine suspicion about allegedmal practice of substituting the valid votes with spurious votes could be established. Wehave also perused the impugned judgment and we find after discussing law and evidenceon record, the election petition was dismissed holding that the appellants failed to makeout a prima facie case and could not be allowed to embark upon a fishing inquiry.

At the outset we may state here that all the allegations were made againstthe Returning Officer and though initially he was impleaded as a respondent,subsequently, his name was deleted by the order of the court. The High Court has notedthat during the trial the Returning Officer was present in court and he was also shown asa witness in the list of witnesses submitted by the appellants. Subsequently, his namewas struck off from the said list and was not examined. The defeated candidate, ShriTeware did not appear as a witness to support the allegations made in the electionpetition.

The first contention of Mr. Lalit, learned counsel for the appellants is thatthe ballot boxes were to be collected at the MES High School and instead boxes werecollected at the Recreation Hall, MIDC without information to the candidates/agentsabout such shifting of ballot boxes and this was done in order to replace ballot papers inthe ballot boxes.

The High Court has recorded in the impugned judgment that it has comeout from oral evidence of PW-4 that 'there was rain and there was water log in the MESHigh School.....'. Mr. Lalit has rightly pointed out that no such statement was made byPW-4. On the contrary, Mr. Ashok Desai has submitted that it was a genuine mistake onthe part of the learned Judge and he has drawn our attention to the evidence of PW-5, thePresiding Officer of the booth. PW-5 in cross-examination has stated that when theywent to the MES High School on 9th September, rainwater had collected there. We agreewith Mr. Desai that it was a genuine mistake.

We have already noted that shifting of the collection center was for safecustody of the ballot boxes. In the evidence it has come out that on 9th September, 1999there was heavy rain at Baramati. PW-2, the Principal of the school has stated that whenit rains in Baramati, rainwater gets collected at some area of the school. It is theresponsibility of the Returning Officer to keep the ballot boxes in the safe custody,therefore, the Returning Officer rightly shifted the collection center for ballot boxes forsafe custody and we reject the contention of the appellants that it was so done with anulterior motive.

From the evidence of PW-1, the polling agent of Shri Teware who isappellant No. 2 herein, it has come out that at the MES High School he waited for 15minutes and saw that the boxes were reloaded in the vehicle. He has stated that theAssistant Returning Officer who was present at the MES High School informed him thatboxes were being shifted as per the orders of the Returning Officer, PW-3, the PresidingOfficer of Booth No. 234 who arrived at the MES High School has deposed that he andother Presiding Officers were informed about the shifting of collection center for theballot boxes. Therefore, the submission that no notice was given is contrary to evidenceon record. In absence of evidence of defeated candidate, Shri Teware we cannot acceptthe submission that no notice was given to the candidates about such shifting.

The Recreation Hall, MIDC, which was under the control of the StateGovernment, was adjacent to Vidya Pratisthan Shikshan Sansthan, which was under thecontrol of the family of the respondent. The appellants have not adduced any evidence tosupport the allegation that any attempt was made by the respondent or any member of hisfamily to substitute the ballot papers in the ballot boxes.

Mr. Ashok Desai, learned senior counsel for the respondent has rightlypointed out that party on whose ticket the respondent contested the election was not inpower at the relevant time and the BJP and the Shiv Sena were in power. This was inreply to the contention made in the election petition that the respondent was a nephew ofShri Sharad Pawar, Ex-Chief Minister of Maharashtra who also contested the election forthe parliamentary constituency and got elected.

The ballot boxes were received at the Recreation Hall, MIDC, Baramation September 11, 1999 and were dispatched on next day i.e. September 12, 1999 to theStorage center, Pune. All ballot boxes were dispatched by 7.30 a.m. except the ballotboxes of Baramati constituency, which were dispatched at 9.30 a.m. The High Court hasrecorded that there were 251 ballot boxes for this Assembly Constituency and on thebasis of evidence of PW-10 it came to the conclusion that it would require 30 to 35minutes for sorting of ballot papers in each ballot box. On these premises, the HighCourt rightly was of the opinion that it would require 125 hours for opening 251 ballotboxes, sorting out ballot papers of the Lok Sabha and the Assembly constituency andsubstituting ballot papers by different set of ballot papers. Therefore, it would notpossible to substitute ballot papers during the period the boxes were kept at RecreationHall, MIDC and rejected the plea holding that it was a 'fertile imagination of thewitnesses'. We agree with the above finding of the learned Single Judge.

We have perused the written complaint filed before the Returning Officerin which two allegations were made viz. absence of signature of the Presiding Officer onthe ballot papers and one used ballot paper for Khed Lok Sabha Constituency was foundin the ballot boxes. A prayer was made before the Returning Officer that the ballot papersof the entire legislative constituency be scrutinised and verified. The said complaint wasfiled by Shri Arun Chandrarao Teware, PW-7 and time was noted at 2 p.m. The ReturningOfficer in his order stated that he found in polling booth No. 234 there were no signatureof the Presiding Officer on the back side of the ballot papers and he checked numbers ofthe ballot papers, thereafter he informed the counting representative that the said ballotpapers were from the said polling center and the counting agents did not make anyobjection and gave consent for counting of votes. After going through the report we donot accept the contention that the Returning Officer refused to accept the complaint asalleged. We may state here that no prayer was made either by the defeated candidate orany counting agent for recount.

18.The second contention of Mr. Lalit is that in the absence of signature ofthe Presiding Officer in Booth No. 234 on the back of 455 ballot papers would so thatthey were substituted.

According to the High Court since only 455 ballot papers were foundwithout the signature of the President Officer and assuming that the ballot papers oughtto have been rejected, it would not affect materially the result of the election asrespondent won by huge margin of about 50,000 votes. We agree with the above findingof the High Court. PW-5 was the Presiding Officer at Booth No. 234 and according tohim he put his signature on all ballot papers of Lok Sabha Constituency and in 500 ballotpapers of Assembly Constituency on 10th September, 1999 and the Polling Officerschecked each and every ballot papers. PW-6, the Polling Officer of the said booth hassupported PW-3 on this point. According to Rule 38 of the Conduct of Election Rulesevery ballot paper before it is issued to the electorate, the counter foil attested theretoshall be signed by the Presiding Officer on its back. PW-5 could not explain why hesigned the ballot papers on the previous day. A criminal proceeding has been initiatedagainst him u/s 134 of the Act for his omission to sign the ballot papers and ispending and, therefore, according to the High Court he could not have deposed otherwise.Therefore, on this ground, the High Court disbelieved PW-5, as it was his endeavour tojustify his action to absolve himself of the criminal charge. The finding of the HighCourt cannot be faulted.

The respondent defeated Shri Teware by a huge margin of more than fiftythousand votes. Only 455 ballot papers without signature of the Presiding Officer werefound in Booth No. 234. These ballot papers were counted and as the Returning Officerhas recorded in his order there was no objection by the counting agents. Had these ballotpapers been rejected, it would not have also materially affected the result of the electionin view of the above huge margin. Regarding finding of one ballot paper of anotherconstituency in the ballot box, we are also of the view that this would also not materially.affect the result of the election.

Regarding the allegation that the signature of the Presiding Officers invarious polling booths on the ballot papers appeared to be of similar in character, theHigh Court took note of the fact that not a single counting agent in the hall or any othercounting agent raised any objection in writing to the Returning Officer. In the report ofthe Returning Officer, it was recorded that he verified the signatures and was satisfiedthat the objection raised was unfounded. In the absence of evidence of Returning Officer,the High Court rightly drew adverse inference.

Mr. Lalit, learned counsel for the appellant has submitted that as ballotpapers without the signature of the Presiding Officers were found in booth No. 234, theappellants may be allowed to inspect ballot boxes in other polling booth to find outwhether there was such omission by the Presiding Officers in other booths. Thissubmission has to be rejected, as it will amount to allowing the appellants to fish outevidence to support the contention of the appellants.

After perusing the evidence which are available on record and also theimpugned judgment, we are of the opinion that the High Court has not committed anygrave or palpable error in appreciation of the evidence. We are also of the opinion thatthe appellants have failed to establish a prima facie case for inspection of ballot papers.

In the result is dismissed. Registry shall take follow up action interms of Sub-section (2) of Section 116C of the Act. Cost on the parties.