Shriniwas Tiwari vs Raj Kumar Urmalia and Others

R.C. Mishra, J.—This order shall govern disposal of I.A. No. 27/10, which is an application, under Order XIII Rule 10 of the CPC (hereinafter referred to as ''the Code'') read with Rule 105 of the Madhya Pradesh Civil Court Rules, 1961, moved by the petitioner for production of postal ballot papers. In this petition, election of the returned candidate viz. the respondent no. 1 from MP. Legislative Assembly Constituency Sirmour No. 68, has been called in question on the grounds mentioned in sub-clauses (iii) and (iv) of Section 100(1)(d) of the Representation of People Act, 1951 (for brevity ''the Act''). The petitioner has sought the following reliefs -

(i) an order for re-inspection/re-count of the votes polled in the constituency and on the basis of such re-inspection/re-count of votes, a declaration that the election of respondent no. 1 is void.

(ii) a declaration that he himself has been duly elected from the Constituency.

As per the petitioner, the postal ballot papers are public documents but there is no provision for issuance of certified copies thereof. He has also highlighted the fact that upon his pleadings that out of 365 postal ballot papers, only 60 were opened for counting, a specific issue has been framed as to whether the result of the election in so far as it concerns respondent no. 1 was materially affected by improper rejection of any vote.

Opposing the application, respondent no. 1 has submitted that provisions mentioned therein are not applicable to postal ballot papers as they are not public documents. According to him, all 365 postal ballot papers were opened by Returning Officer in presence of petitioner''s counting agent and 305 ballots were found to be invalid but the agent neither raised any objection during the process of counting nor made any request for re-counting of the ballots.

Learned counsel for the petitioner, while placing reliance on decision of the Supreme Court in Lakshmi and Another Vs. Chinnammal @ Rayyammal and Others, , has contended that Order XIII Rule 10 of the Code empowers the Court to call for record of any proceedings whether judicial or otherwise. Reference has also been made to the following observations made by the Supreme Court in Para 27 of the decision in T.A. Ahammed Kabeer Vs. A.A. Azeez and Others,

"Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. As held by the Constitution Bench in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, an Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order XI of Code of Civil Procedure. Inspection of documents under Rule 15 of Order XI of CPC may be ordered 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 XI of 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 which 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 XI CPC may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1). However, the Constitution Bench has cautioned, by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interests of justice."

To strengthen the submission that the bar of Rule 94 of the Conduct of Election Rules, 1961 (for short "the Election Rules") would not be attracted as this Court has jurisdiction even to issue summons to a voter, though he cannot be compelled to state for whom he had voted, learned counsel for the petitioner has referred to the decision of the Apex Court in Nayini Narasimha Reddy Vs. Dr. K. Laxman and Others, . According to him, there is no legal impediment to even issuance of a direction for re-poll of postal ballots. For this, attention has been drawn to following observations made by the Constitution Bench in Para 91 of the pronouncement in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others,

"Having regard to statutory setting and comprehensive jurisdiction of the Election Court we are satisfied that it is within its powers to direct a re-poll particular polling stations to be conducted by the specialised agency under the Election Commission and report the results and ballots to the Court. Even a re-poll of postal ballots, since those names are known can be ordered taking care to preserve the secrecy of the vote."

In reply, learned counsel for respondent no. 1 has pointed out that the I.A. has been moved for production of the postal ballot papers and not for inspection thereof. According to him, the prayer made in the I. A. is not covered by Order XIII Rule 10 and ought to have been made under Rule 93 of the Election Rules after making out a clear case for ordering the production and inspection of election papers. For this, primal reliance has been placed on the principle enunciated by the Apex Court in Fulena Singh Vs. Vijay Kumar Sinha and Others, . He is further of the view that that even if for the sake of arguments it is assumed that 305 postal ballot papers were not opened, it would not affect the result of the election as the respondent no. 1 had won by a margin of 309 votes and there were as many as 26 candidates in the fray. Attention has also been invited to the fact that the petitioner has not preferred to summon the Returning Officer to prove the corresponding pleadings in Paragraphs 15 to 17 of the petition or to summon relevant account of votes recorded by the counting supervisor in Form 17-C, which is a public document signed by the candidates or their representatives.

The I.A. under consideration was moved as early as on 17/8/10 and, vide order-dated 25/8/10, consideration thereon was deferred till recording of petitioner''s evidence that was completed on 21/9/10 only. Thereafter, as many as five other witnesses on behalf of the petitioner including his election agent Rama Shankar Mishra (PW6) and five witnesses on behalf of respondent no. 1 including himself and the District Election Officer have been examined. The I.A. has been pressed at this stage when the trial is posted for recording of evidence of returning officer namely Mohd. Fahatullah Khan as DW6. As pointed out already, inspection of the votes is one of the reliefs prayed for in the petition. The obvious purpose of the prayer for production of postal ballot papers is nothing but to inspect the same. However, while considering the prayer, it would not be desirable to appraise the evidence brought on record as such an exercise may cause an unintended prejudice to either of the parties to the election dispute, trial of which is nearing completion.

The pronouncement of the Constitution Bench of the Apex Court in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, has been consistently followed in all subsequent decisions on the point including Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, and T.A. Ahammed Kabeer''s case (above). It is relevant to note here that by virtue of S. 41 of the Act 47 of 1966, Ss. 86 and 87 of the Act were substituted for Ss.86 to 92. Under the erstwhile Section 92 of the Act, the tribunal was given the powers which are vested in a court under the Code of Civil Procedure, when trying a suit, in respect of (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposits of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses. Scope of the power conferred on the tribunal under clause (a) was explained by a three Judge Bench in Jagjit Singh''s case in these terms -

"Section 92 of the Act, which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Court under the CPC when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate''s election is void".

Rule 54A of the Election Rules prescribes the procedure for counting of votes received by post. Sub-Rule (1) mandates that the returning officer shall first deal with the postal ballot papers. Sub-rules (2) to (10), which provide for scrutiny and rejection of the postal ballot papers, also contemplate reasonably sufficient opportunity to the candidates to inspect the ballot papers sought to be rejected by the returning officer. Sub-Rule (11) requires that the returning officer (a) shall count all the valid votes given by postal ballot papers in favour of each candidate (b) record the total thereof in the result-sheet in Form-20 and (c) announce the same. Scheme of these rules reflects that every candidate has opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related.

Adverting to the pleadings referred to in the I.A., it may be observed that in paragraphs 15, 16 and 17 of the petition wherein averments pertaining to so-called improper rejection of 305 postal ballot papers have been made, material facts such as serial numbers of the postal ballot papers not opened and the precise objection with regard to each of such ballot papers, if any, raised by the counting agent, have not been stated. In absence of such an information, which the petitioner alone should have known or should be deemed to know, any inspection of the ballot paper would amount to a roving and fishing inquiry (See. Narain Chand Prashar Vs. Prem Kumar Dhumal and Others,

In the light of the guidelines laid down in Ram Sewak''s (supra), an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not substantiated 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.

Moreover, it is well-settled that inspection of election papers mentioned in detail in Rule 93 (a) to (e) is not a matter of course. Inspection of those papers cannot be ordered and parties cannot be permitted to inspect the same for the purposes of making a roving enquiry in order to fish out the materials and to derive support to one''s own case. A clear case is, therefore, required to be made out for ordering the production and inspection of election papers by the parties [See. Fulena Singh''s case (supra)].

This apart, as crystallized in clause (3) of summing up of the law, finding place in Para 33 of the judgment in T.A. Ahammed Kabeer''s case (ibid) -

"For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election Court shall acquire jurisdiction to do so only on the two condition being satisfied: (i) the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination petition u/s 97(1) is filed".

Thus, viewed from any angle, the prayer for production of postal ballot papers does not deserve acceptance. The I.A. is, accordingly, dismissed.