Som Parkash vs Smt. Santosh Chaudhary

Hemant Gupta, J.—The present election petition has been filed by the petitioner challenging the election of respondent, u/s 80 read with Sections 81, 100 and 101 of the Representation of People Act, 1951 (for short ''the Act''), from 05-Hoshiarpur (SC) Parliamentary Constituency.

In pursuance of notification dated 17.4.2009 issued by the Election Commission of India, the general elections to Lok Sabha of 05-Hoshiarpur (SC) Parliamentary Constituency along with 8 other Parliamentary Constituencies in the State of Punjab, were to be held. The date of polling was 13.5.2009 and the date of counting and declaration of the results was 16.5.2009. The petitioner, respondent and 10 other candidates, were the candidates from 05-Hoshiarpur (SC) Parliamentary Constituency, after the last date fixed for withdrawal of nomination papers. The petitioner contested the election on the symbol of Bhartiya Janta Party (BJP), whereas the respondent contested the election on the symbol of the Indian National Congress (INC). In the counting held on 16.5.2009, the total number of votes polled were 843375 including 167 rejected votes. The petitioner polled 358446 votes whereas the elected candidate (respondent) polled 358812 votes.

The controversy between the parties lies in a narrow compass i.e. in respect of the malfunctioning of Electronic Voting Machine (for short hereinafter referred to as ''the EVM''), at polling station 114 of village Kaloya of 41 Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency. On the date of polling, the EVM installed in the aforesaid polling booth malfunctioned and stopped recording votes after recording 574 votes, which led to stopping of polling. After sometime, the EVM was changed on the orders of the District Election Officer/Returning Officer. The defective EVM was sealed and packed and a new EVM was installed. In the new EVM, 110 votes were recorded as polled. It is alleged that such change of the EVM is not in terms of Section 58 of the Act and Instruction No. 54.1 of Chapter XIII of the Handbook for Returning Officers. It is pleaded that if an EVM develops a mechanical snag, the Presiding Officer is required to bring the matter to the notice of the Returning Officer. The Returning Officer is to refer the matter to the Election Commission of India, which is to take a decision in respect of the fresh polling at that polling station. Since the matter was not brought to the notice of the Election Commission of India, therefore, change of the EVM was said to be violation of the statutory provisions and, thus, a ground for challenge of the election. It is also pointed out that at the time of counting on 16.5.2009, during the 9th round of counting, the defective EVM control unit No. 28865, pertaining to polling station 114 of village Kaloya of 41 Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency, could not show any result. The result of the said assembly segment of the Parliamentary Constituency was tabulated by excluding 574 votes not retrieved from the EVM. The result in Annexure P.4 shows that the margin between the leading and runners up is 1842 and that 574 votes have not been counted.

The election agent of the petitioner gave an application for re-counting of votes and repolling in polling station 114 of village Kaloya of 41 Urmar Assembly segment on 16.5.2009 at 12.10 p.m. It is averred by the petitioner that after the counting was completed at the aforesaid segment, control unit of EVM bearing No. A-28865 was neither sealed nor the signatures of the counting agent of the petitioner and others were taken on the defective control unit of the EVM as per the Rules and Government Instructions.

On 16.5.2009 at about 5.30 p.m., the petitioner is said to have received a telephonic message for checking by the Engineers from Jalandhar called for retrieving the data contained in the defective control unit of the EVM from. A representation was made by Shri Jagtar Singh, election agent of the petitioner that the EVM is defective to such an extent that the data could not be taken out from the EVM and that it is not known as to in whose hand the EVM remained and in which situation after the counting was over. Therefore, re-polling should be ordered. It is averred by the petitioner that without considering the representation by the election agent of the petitioner, the data was retrieved and the respondent was declared elected.

The petitioner in the present election petition has sought to dispute the election of the respondent primarily on the ground that as per Section 58 of the Act, the Election Commission has not permitted use of new EVM when the already installed EVM stopped functioning during the course of poll on 13.5.2009. Relying upon the Instructions, it is contended that such defective EVM was neither sealed nor handled with care and caution and that without obtaining permission of the Election Commission of India, a new EVM has been put in use, which vitiates the entire election and, thus, a prayer has been made, for setting aside the election of the respondent and to conduct fresh elections after ordering re-poll in polling station 114 of village Kaloya of 41 Urmar Assembly segment.

In the written statement, the respondent has pointed out that out of 574 votes retrieved with the efforts of the two Engineers i.e. Shri V.K. Wason from Jalandhar and Shri Devender from Patiala, the petitioner polled 177 votes whereas the respondent polled 254 votes. The remaining votes have been shared by the other 10 candidates. It is averred that all 574 votes, which were recorded to be polled by the EVM prior to its malfunctioning, have been retrieved and that there is no pleading that by counting of such 574 votes, the election result is materially affected.

It is contended that when the EVM was changed, no objection was raised by the election agent of the petitioner. Reference is made to Handbook of the Instructions, which provide for keeping an alternative EVM ready. It is contended that such EVMs are kept ready for emergent use. Therefore, prior to the change of the EVM, the order of the Election Commission of India, is not a mandatory requirement. It is contended that u/s 19A of the Representation of People Act, 1951, the function of the Election Commission of India under the Constitution and under or under the Rules made there under, subject to such general or special directions, can be performed also by a Deputy Election Commissioner or by the Secretary to the Election Commission. It is contended that the result of the Parliamentary Constituency has been declared after the Election Commission has permitted the Returning Officer, to declare such result on 16.5.2009. It is further contended that the election of the respondent has been challenged for non compliance of the provisions of the Act or the Rules or orders made under the Act falling within Section 100(1)(d)(iv) of the Act. It is contended that such election can be set aside only if the result of the election in so far as it concerns a returned candidate, has been materially affected.

It is argued that the counting of 574 votes has not materially affected the result of the elected candidate. It is argued that while tabulating the result of polling station 114 of village Kaloya of 41 Urmar Assembly Segment of the Parliamentary Constituency, the respondent was leading by 1842 votes by excluding 574 votes. The respondent has clear lead in the said segment. The election result of the assembly segment is not materially affected even if 574 votes are excluded from consideration. It is pointed out that since there is no dispute in respect of the number of votes polled, mere fact that the data could not be retrieved at the time of counting of votes of polling station 114 of village Kaloya of 41 Urmar Assembly of the Parliamentary Constituency, is not a ground to order re-poll as the data has been retrieved correctly though belatedly in respect of 574 votes. There is no discrepancy in respect of the number of votes polled and the number of votes retrieved. It is pointed out that in the entire election petition, there is no averment or allegation of any factual basis to show that the counting of 574 votes has materially affected the result of the Parliamentary Constituency, which alone could be a ground for entertainment of the election petition.

This Court on 5.10.2009, has treated the following issues No. 1 and 2 as preliminary issues:

Whether the election of a returned candidate could be challenged on any ground other than the grounds as specified in Sub-section (i) of Sections 100 and 101 of the Representation of People Act, 1951? OPD

Whether an Election Petition is liable to be dismissed on account of lack of concise statement of material facts and for the reason that it does not disclose any cause of action as envisaged u/s 83 of the Representation of People Act? OPD

I have heard arguments of the learned Counsel for the parties on the preliminary issues mentioned hereinbefore.

Section 100(1)(d)(iv) of the Act, relevant for the purposes of the present petition, reads as under:

Grounds for declaring election to be void.-

(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-

(a) to (c) xx xx xx

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) to (iii) xx xx xx

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

The High Court shall declare the election of the returned candidate to be void.

Though the petitioner has alleged that the EVM has been changed without permission of the Election Commission of India, as contemplated u/s 58 of the Act, but for the purposes of the present election petition, the said question need not be examined in detail at this stage. Suffice it to state that the Election Commission of India has permitted the result of Parliamentary Constituency to be declared after it was informed of malfunctioning of the machine and the retrieval of the data by calling the Engineers of the Company providing EVMs. Once, the Election Commission of India has approved the declaration of result, irregularity, if any, in seeking permission from the Election Commission of India becomes academic. The question which needs to be examined in respect of preliminaty issue No. 2 is whether the material facts are disclosed in the petition, which may lead to a finding that the election result is materially affected by the counting of 574 votes as held by the Hon''ble Supreme Court in G.S. Iqbal Vs. K.M. Khadar and Others, to the following effect:

In our view, the Designated Election Judge did not commit any error in observing that in order to make out a case u/s 100(1)(d)(iv), it was necessary for the petitioner to specifically plead that the election insofar as it concerned the returned candidate has been materially affected by non compliance with the provisions of the Act, 1951 or the Rules made there under.

In the petition, there is averment regarding defect in sealing of EVM after the same failed to retrieve the data on 16.5.2009 in the first instance. The allegation that the counting of 574 votes, has, materially affected the election result of the respondent is contained in para No. 27 of the petition. Reference was also made by the petitioner to the contents of para Nos. 14 and 15 of the election petition, to contend that the material particulars have been pleaded. Para Nos. 14 to 18 and 27, which are relevant for the purposes of the present petition are reproduced below:

That the result of Assembly Segments were complied by the Returning Officer of 5-Hoshiarpur (SC) Parliamentary Constituency and it was found that the respondent was leading by margin of 289 votes. However, the number of votes which could not be retrieved from the defective control unit bearing number A-28865 pertaining to booth No. 114 of Urmar Assembly Segment contained 574 votes. After the completion of result at that time, Smt. Santosh Chaudhary, respondent was polled 358529 votes whereas the petitioner was said to be polled 358238 votes.

That the Returning Officer by misrepresenting that the EVM machines were sealed and that the written consent was taken from the counting agents, has sent the letter to the Principal Secretary, Election Commission of India, New Delhi that the engineer has been called from Jalandhar and the efforts will be made to retrieve the data from the defective control unit. It is pertinent to mention here that the EVM/voting machine became defective on 13.5.2009 i.e. on the date of poll whereas he has sent the letter only on 16.5.2009, when the data was not retrieved. This action is in clear violation of the provisions of Section 58 of the Representation of People Act, 1951.

That the notices were sent to the candidates by the Assistant Returning Officer of 41-Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency to the effect that the engineer from Jalandhar was called for checking the defective control unit of the voting machine and asked to be present at 5.30 p.m. The petitioner has not received the said notice, however, he got the telephonic message to come at 5.30 p.m. However, subsequently he got another telephonic message from the office of Asstt. Returning Officer of the Urmar Assembly Segment to reach at 7.00 p.m.

That Sh. Jagtar Singh, Election Agent of the petitioner and District President, BJP, made a representation to the Returning Officer of the re-polling on booth No. 114 of 41-Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency. It was averred that many times it has been tried to retrieve the votes from the defective EVM, after breaking the seals and that the machine is defective to such an extent that the counting data could not be taken out from the said machine and it was further mentioned that it is not known that the machine remained in whose hands and in which situation after the counting was over. Copy of the representation is annexed as Annexure P.6 to this election petition. The true translated copy of the same are annexed as Annexure P.6/T to this election petition.

That the Returning Officer, without considering the representations given by the Jagtar Singh, the election agent of the petitioner, has called some experts to retrieve data. After the alleged retrieving of votes, the result of the same was sent to the Returning Officer, who declared the petitioner defeated. It is pertinent to mention here that the controlling unit and the concerned EVM remained un-attended and without any seal/signatures of the counting agents of the parties for about more than 6 hours. From the alleged videography of the said incident, it is clear that there was no paper seal which were affixed before the polling to close the inner compartment of result section of the control unit and the green paper seal and other seals and which was broken for the purpose of counting were not re-affixed in the same manner by the Asstt. Returning Officer of Urmar Assembly Segment. Thus, the important portion of the control unit/EVM remained un-sealed. Even the seals shown to have been affixed by the ARO on the outer body of the machine is not in accordance with the rules and instructions and can be removed without breaking the said seal.

xx xx xx

That there is also changing/tampering of votes in the control unit/EVM in order to declare the respondent as elected. There is no order of the Election Commission of India regarding the defective machine during the polling. There should have been re-poll at booth No. 114 of 41 Urmar Assembly Segment of the Constituency. Further in the defective control unit there was 574 votes whereas the lead difference of the respondent was 289 votes. The violation of Provisions of Representation of People Act, 1951, Conduct of Election Rules and Instructions and result of change of data in control unit have materially affected the result of the election of the respondent from 05-Hoshiarpur (SC) Parliamentary Constituency.

In para No. 27 of the petition reproduced above, the petitioner has averred that the counting of 574 votes has materially affected the election result, but I do not find that the pleadings lead to any inference that counting of such votes has materially affected the election result. The election result has been declared on the basis of the votes polled by each of the candidates by including 574. It is alleged that EVMs were not kept in safe custody or they were available to tampering. Even if it is so, the question can be examined after excluding 574 votes polled by each candidate. Therefore, the question requires to be determined is whether by excluding 574 votes, the election result can be said to be materially affected. The petitioner was trailing by 1842 votes when the counting of polling station 114 of 41 Urmar, Assembly Segment of the Constituency was completed. 574 votes were not counted. The margin of votes between the two candidates was more than 574 votes. Out of 574 votes ultimately retrieved, the petitioner polled 177 votes as against 254 votes polled by the respondent. If 574 votes are excluded from the total votes polled by the petitioner and the respondent, the result would be as under:

Total votes polled

Votes recorded by the EVM

Deemed votes polled

Petitioner- Som Parkash

358446

177

358269

Respondent-Smt. Santosh Chaudhary

358812

254

358558

The argument that since 574 votes are more than the difference of votes between the two candidates and, therefore, the result is materially affected, is not tenable. If the 574 votes as are polled by the candidates are excluded from the counting, the petitioner does not succeed as counting of such votes does not materially affect the election result. Therefore, the condition for entertainment of an election petition contemplated u/s 100 of the Act is not satisfied.

In view of the above, I find that the present election petition does not disclose any cause of action as it cannot be said that 574 votes recorded by the EVM has materially affected the election result declaring the respondent as a returned candidate.

Hence, the present election petition is dismissed.