THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 02.12.2011
Judgment Pronounced on: 05.12.2011
+ CS(OS) 2969/2011
NIRANJAN LAL GUPTA & ANR. ..... Plaintiffs
Through: Mr. K.T.S.Tulsi, Mr. Raman Kapur, Sr. Advocates with Mr.
Manish Kumar, Advocate for Plaintiff No.1 Mr. Aman Lekhi, Sr. Advocate with Mr. Amit Kumar, Advocate for Plaintiff No.2
GURMEET SINGH BAWEJA & ORS. ..... Defendants
Through: Mr. Rajiv Nayyar, Sr. Advocate with Mr. Z. Anwer, Advocate
for D-3 Mr. Maninder Singh, Sr. Advocate with Mr. P.S.Bindra & Mr.
Harish Sharma, Advocate for D-4 & 5
HON’BLE MR JUSTICE
V.K. JAIN V.K. JAIN, J
IA No. 18992/2011 (u/O 39 R.1&2 CPC)
Defendant No.3 of All India Motor Transport Congress is stated to be a body consisting of more than 5000 members, representing more than 01 lac transport companies and approximately 72 lac truckers, Light Motor Vehicles, buses, commercial vehicles etc. The Articles of Association of defendant No.3, which has been registered as a company, provides for formation of a Managing Committee consisting of not less than 15 and not more than 121 members to be elected zone-wise by its members. The members of the Managing Committee elect the President and Vice-Presidents of the body from amongst themselves, for the tenure of two years each. For the period 2011-13, plaintiff No.1 Mr. Niranjan Lal Gupta, defendant No.4 Mr. Bal Malkit Singh and one Mr. Nimesh J. Patel, all of whom are members of the Managing Committee filed the nominations for the post of President whereas plaintiff No.2 Mr. Harish Sabharwal and defendant No.5 Mr. Kultaran Singh Atwal filed nominations for the post of Vice-President from North Zone. Since Mr. Nimesh J. Patel withdrew his nomination, only plaintiff No.1 and defendant No.4 remained in the fray for the post of President. The election is held by postal ballots, the members of the Managing Committee being from all over
2. The suit has been contested and the application opposed by defendants No. 3 to 5, though Written Statement is yet to be filed by them.
3. The dispute between the parties is with respect to 08 postal ballots for the post of President and 08 postal ballots for the post of Vice President (North Zone). The ballot box containing all the ballot papers was opened in the Court on
4. The specific case of the plaintiff is that 60 voters had cast their votes in their presence, meaning thereby that the tick mark against their names was put by those voters in their presence. The election for the post of President and Vice-President (North Zone) is not held up by show of hands. As per instructions issued by the Election Officer, voter was required to put the ballot paper in an envelope, flap of the envelope was to be gum pasted, preferably sealed, that envelope to be put it into another envelope which was to be sent to the Election Officer. The plaintiffs themselves have placed on record the letter dated 3rd November, 2011 sent by the Election Officer to all the voters, inclusive two ballot papers one for the post of President and other for the post of Vice President (North Zone). One of the instructions given to the voters requires them not to write or put any other mark on the ballot paper which may disclose his identity in which case the ballot is liable for cancellation. It would thus be seen that the polling process was to be a secret process in which the voter was precluded from disclosing his identity and if he did so the ballot cast by him was liable to be rejected/cancelled. If 60 voters out of 118 cast their vote in presence of the plaintiffs, as is specifically claimed by them, they by doing so disclosed their identity to the plaintiffs, which in turn, rendered their ballot liable to rejection/cancellation. The case of the plaintiffs in para 28 of the plaint is that the ballot was not a secret ballot and that is why 60 voters had cast their votes in their presence. This being contrary to the instructions contained in letter dated
5. The learned Senior Counsel for the plaintiffs during the course of arguments relied upon the decision of Supreme Court in S.Raghbir Singh Gill v. S.Gurcharan Singh Tohra & Ors. 1980 Supp. SSC 53 in support of his contention that the voters are not prohibited from disclosing their identity even during the process of casting their vote. A perusal of this decision would show that in election for members to Council of States, 08 MLAs who were detained under MISA, preferred to vote through postal ballots. The appellant and respondents No. 1 had received equal number of first preference votes, which was below the ascertained quota. The surplus first preference votes were added to the first preference votes polled by the appellant and he was declared elected. Respondents No. 2 & 3, who were sitting MLAs belonging to the opposition party, filed an Election Petition challenging the election of the appellant and it was alleged that the Returning Officer had tampered with the postal ballots. When the petition came up for hearing those who had cast their votes by post appeared as witnesses and were examined. The witnesses claimed that they had cast only the first preference votes in favour of respondent No.1 and had not indicated any other preferences. The Court held that the ballot papers were tampered with and were improperly received in favour of the appellant and improperly refused to respondent No.1. Recounting was ordered, in which respondent No.1 was declared elected and the election of the appellant was set aside. While dismissing the appeal preferred, Supreme Court observed that secrecy of ballot being is an indispensable adjunct of free and fair election and ordinarily this secrecy has to be guarded. Noticing that despite tampering with the ballot papers, the Returning Officer did not reject them as being invalid, the Court was of the view that if the circumstances permit and evidence of unquestionable character is available it would be perfectly legitimate for the Court, in an Election Petition, to ascertain for whom the vote was cast before it was tampered with and if it can be ascertained as a valid vote it must be accepted as such. The Court was of the view that it was the bounden duty of the Returning Officer, in view of sub rule 2 of Rule 56 of Conduct of Election Rules 1961, to ascertain the intention of the voter by finding out for whom the vote was cast and add the vote for the candidate for whom it was meant to be. It was noted that proviso to sub rule 2 of Rule 56 showed that the ballot paper could not be rejected merely on the ground that mark indicating vote was indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. During the course of arguments, it was claimed by the appellant that the order passed by the High Court violated the mandate of Section 94 of Representation of The People Act which provides that no witness or other person shall be required to state for whom he had voted. The Court was of the view that Section 94 only prohibits compelling a witness to disclose, against his will, as to how he had voted and for whom he had voted and when questioned in this regard he can refuse to answer the question without incurring any penalty or forfeiture but if he chooses to open his lips of his own free will without any direct or indirect compulsion and waive the privilege nothing prevents him from disclosing how he voted. This judgment to my mind in the context of the case before this Court would mean that the voters who cast these disputed ballot papers, are at liberty, post elections, if they so desire, without any direct or indirect compulsion on them, to disclose to whom they had given their vote through these postal ballots. At this stage, there is no material on record except the claim of the plaintiffs is that as many as 60 voters had cast their votes in their favour in their presence. The plaintiffs have not filed the affidavits of those 60 voters who according to them had cast the votes in their favour. Moreover, even if these votes were cast in favour of the plaintiffs as is claimed by them, in view of additional instruction (a) to the voters, casting the votes in presence of the plaintiffs by itself rendered these postal ballots liable to rejection since by doing so they fail to maintain the secrecy of the polling process and contravened the instructions issued to them by the Election Officer, while signing the postal ballots to them. Casting a vote in the presence of a candidate, being altogether different from disclosing the option, post election, the decision in the case of Raghbir Singh (supra) does not apply. Prima facie, the plaintiffs have not able to make out a case for counting these disputed votes in their favour, for the purpose of deciding the interim application.
6. During the course of arguments it was submitted by the learned Senior Counsel for defendants No. 3 to 5 that defendants No. 4 & 5 have already taken over from the erstwhile incumbents and therefore there can be no question of restraining them from assuming charge of the office to which they were elected. This was strongly refuted by the learned Senior Counsel for the plaintiffs and relying upon the minutes of the meeting of Transport Development Council held on
The learned Senior Counsel for the plaintiffs referred to decision of Supreme Court in Murray & CO. v. Ashok Kr. Newatia & Anr. (2000) 2 SCC 367 where the Court was of the view that making a false statement on oath constitutes criminal contempt. The contention was that by filing a forged and fabricated handing over and taking over report dated
7. For the reasons given in the preceding paragraphs I find no ground for grant of any interim order to the plaintiffs. The application is hereby dismissed.
CS(OS) No. 29692/2011
Written Statement be filed within the prescribed period. Replication, if any, can be filed within 04 weeks after getting the copy of the Written Statement.
The parties are directed to appear before the Joint Registrar on
List before the Court on