RAJ PAL Vs. NAFE SINGH

JUDGEMENT

(1.) Raj Pal-petitioner was a candidate at election 37- Bahadurgarh Assembly Constituency, besides Nafe Singh-respondent No. 1 and 18 others. Nominations filed by them were found in order. The polling to the 37- Bahadurgarh Assembly constituency took place on 27.4.1996. The results were announced on 10.5.1996. There were 177 polling booths in that constituency. In the election, the petitioner polled 26,657 votes while Nafe Singh respondent No. 1 polled 27,555 votes. Nafe Singh-respondent No. 1 was declared elected by the Returning Officer by a margin of 898 votes. The petitioner was a candidate put up by the Haryana Vikas party while respondent No. 1 was a candidate put up by Samta party. Shri Ram Nath Bishnoi, HCS, SDO (Civil), Bahadurgarh the Returning Officer for 37-Bahadurgarh Assembly Constituency. He was quite close to respondent No. 1. Prior to respondent No. 1 was put up as candidate by the Samta Party at election to the 37-Bahadurgarh Assembly Constituency, he had been Chairman of the Municipal committee, Bahadurgarh for two terms namely from 28.11.1989 to 29.9.1991 and from 4.11.1992 to 17.3.1994. Since respondent No. 1 was a local politician of Bahadurgarh Town and Shri Ram Nath Bishnoi was SDO (Civil), Bahadurgarh, they became close to each other and were on frequent visiting terms. Since respondent No. 1 had been Chairman of the Municipal Committee, Bahadurgarh twice, staff of Municipal Committee, Bahadurgarh was under his direct influence. Returning Officer vide order dated 30.4.1996 detailed many officers/officials out of staff of the Municipal Committee, Bahadurgarh on the election duty for counting votes at 37-Bahadurgarh Assembly constituency. Respondent No. 1 had equation with the Returning Officer and he succeeded in getting appointed the officials of the Municipal Committee, Bahadurgarh as Counting Assistants. The counting of votes started at 8.00 AM on 8.5.1996 at Vaish Arya Kanya Mahavidyala, Bahadurgarh. There were six counting tables placed in a row from table No. 1 to table No. 6 for the counting of votes of 37-Bahadurgarh Assembly Constituency. Opposite thereto, there were tables placed for the counting of the votes for Rohtak Parliamentary Constituency. The tables were put in wiremesh enclosures. The distance of the counting tables from the wiremesh was about 1-1/2 ft. The first bench placed outside the wiremesh for the Counting Agents was at a distance of about 1-1/2 feet. The second bench was again at a distance of 1- 1/2 feet from the first bench and the 3rd bench was also at a distance of about 1-1/2 feet from the second bench. The width of each was about 1 foot. Thus, the distance between the counting table edge was about three feet and to the second bench about 5-1/2 feet and to the 3rd bench the distance was about 8 feet. There were 20 Counting Agents on each counting table because each of the candidates had appointed Counting Agents one each on all had the tables. One Shri Krishan Kumar appointed as Counting Agent by the petitioner for counting table No. 6 was not allowed entry inside the counting hall by the Returning Officer. Returning Officer had allowed the police within the wiremesh enclosures. The purpose of allowing the Armed Police in the wiremesh enclosures was to create awe and fear rather than to maintain law and order and discipline in the matter of counting. The Counting Agents of the petitioner were not able to see properly the seal mark on the ballot papers because of the distance and also because of the obstruction put by first row of the Counting Agents sitting on the first bench. The Counting Agents of the Petitioner were made to sit in the second row, the petitioner being a candidate of State Level party and the Counting Agents of respondent No. 1 were allowed to sit in the first row alleging that respondent No. 1 was a candidate of a National Party. There was continuous commotion and disturbance amongst the Counting Agents in order to watch the interest of their respective candidates. The Counting Agents were sometime standing and sometime sitting and some of the Counting Agents in order to purch them on the edges of the benches were falling also. The Counting Agents in the second row at times were being pushed behind. The police did not allow the Counting Agents to stand on the benches and the Counting Agents were not able to see the seal mark properly while sitting on the benches. The petitioner's grievance was that the Counting Agents were not able to keep the necessary vigil over the Counting Staff and the Counting Process, in the matter of counting of votes. Out of the six counting tables, Returning Officer appointed Counting assistants on five counting tables out of the staff of the Municipal Committee, Bahadurgarh with view to cause maximum damage to the petitioner while doing wrong counting at the instance of respondent No. 1. The Returning Officer instead of checking the wrong counting, gave free hand to the counting staff in doing wrong counting, prejudicial to the interest of the petitioner. The petitioner was present at the time of counting, in the counting hall, except for short period when he had to go outside. He had appointed six Counting Agents on the counting tables and they had been issued their respective identity cards by the Returning Officer but Krishan Kumar was not allowed entry in the counting hall by the Returning Officer. In other words the counting of table No. 6 went un-watched by his Counting Agent and thus maximum damage was caused to him while counting on table No. 6. Petitioner raised objections during the counting and on his persistent demands the Returning Officer reduced the number of counting tables from six to five instead of allowing entry to said Krishan Kumar, who had been appointed by him as his Counting Agent for table No. 6. In the 14th round of counting, on the persistent demand of the petitioner, the counting tables were reduced from 6 to 5 but it was too late by then and by this time much damage had been caused to the petitioner. Respondent No. 1 in connivance with the Returning Officer got appointed Counting Staff out of the staff of the Municipal Committee, Bahadurgarh so that he could obtain undue advantage at the time of counting because the staff of the Municipal Committee, Bahadurgarh was under his influence. The petitioner has named the persons who were from the staff of Municipal Committee, Bahadurgarh, who had been put as Counting Assistants for those table for looking after the counting process on behalf of respondent No. 1. During round No. 4 of the counting on table No. 4, when Satvir Singh, Counting Assistant was doing the counting properly without showing any favour to respondent No. 1, the Returning Officer and respondent No. 1 could not tolerate it and Satvir Singh, Counting Assistant was abruptly replaced by Shri Om Parkash, Steno, Municipal Committee, Bahadurgarh, who was kept in the reserve staff. According to the petitioner the counting staff committed many serious irregularities in the counting of votes and the result of the election did not depict the actual votes which the respective candidates had polled. The counting had been totally bogus and a farce. The election result was materially affected to the detriment of the petitioner. The petitioner has alluded to a number of instances which according to him suggest affirmatively that there had been lot of bungling in the process of counting which tilted the balance against him and in favour of respondent No. 1. A large number of votes namely 3652 had been rejected out of which as per the rough estimate/calculation given by the Counting Agents, nearly 1256 votes of the petitioner had been wrongfully rejected on illegal grounds, one of which was that there was double impression on the ballot papers.

(2.) In fact, there was only one impression in front of the name of the petitioner and another impression in the reverse direction had come to appear on the folding of the ballot paper. Many votes polled by the petitioner had been rejected because of very small markings either on one corner or on the side of the ballot papers from the ink left on the thumb of the voters, while the voter held the ballot papers in the same hand, the thumb of which was used for thumb marking at the time of issue of ballot papers. Courting Agents of the petitioner were not allowed to sit near the counting tables, they could not note down the numbers of wrongly rejected ballot papers/votes cast in favour of the petitioner. Petitioner and his Counting Agents raised objections but the Returning Officer did not pay any heed to their grievance. Not only he and his counting Agents raised objection, some other contesting candidates and their Counting Agents also objected to the wrongful rejection of the valid votes cast in favour of their respective candidates. The Returning Officer completely ignored their demand as he was determined to help the returned candidate. Likewise many valid votes of the petitioner were rejected on the ground that the mark was although in front of the name of the petitioner but was touching the line of the column. None of the above said grounds of rejection of the votes polled by him (petitioner) was tenable and the votes polled by him had been unlawfully and unjustly rejected on grounds which were untenable. All these were valid votes. They should not have been rejected. They should have been counted in the kitty of the petitioner. 1256 votes which he had polled but which had not been counted in his kitty materially affected the result of the election. Similarly, if the ballot paper which had been thumb marked by the voter against his election symbol had been counted in his kitty that would have materially affected the election result so far as he is concerned. Since the Counting Staff and the Returning Officer were disposed sympathetically towards respondent No. 1, many invalid votes of respondent No. 1 were wrongfully accepted. As many as 328 invalid votes polled by respondent No. 1 were wrongfully accepted as per the rough estimate/calculation given by the Counting Agents of the petitioner. As per the rough estimate/calculation of the petitioner also, the acceptance of the invalid votes of respondent No. 1 affected materially the election result of the petitioner. From the very beginning, counting was not being done properly as the Counting Assistants put the votes in their lap instead of putting them on the top of the counting tables for counting as well as for the purpose of making bundles. At the time when after counting, the votes were made into bundles, Counting Agents put more votes of the petitioner while making bundles of allegedly 50 votes each. On the persistent demand and objection raised by the Counting Agents of the Petitioner, only a few bundles were re-checked and from each such bundle extra votes were actually found. Receiving these complaints of serious irregularities in counting from his Counting Agents, the petitioner raised objections and requested the Returning Officer for re-checking of all the remaining bundles but the Returning Officer refused to get the bundles of the petitioner re-checked. The position was that most of the bundles of the petitioner were containing more than 50 votes each. As per the rough estimate/calculation of the Counting Agents of the petitioner at least 1219 votes of the petitioner had been put extra in his bundle, which remained unaccounted so far as his kitty was concerned and in this manner, election result of the petitioner was materially affected. Election result was materially affected because of the putting of votes less than 50 while making the bundles of respondent No. 1. On the objection raised by the Counting Agents of the petitioner, to this blatant mischief/irregularity being committed in the process of counting only a few bundles of respondent No. 1 were rechecked. In each such re-checked bundles, less than 50 votes were found although the bundles had been shown containing 50 votes each. In this manner, in the kitty of respondent No. 1577 more votes had been counted, which should not have been taken into account in his kitty. If the bundles of respondent No. 1 are re-examined, they will be found to contain less than 50 votes each. When he requested the Returning Officer for the re-checking of the remaining bundles of the petitioner, the Returning Officer refused to do so. This glaring irregularity in the counting has rendered the election result topsy- turvy. The postal ballots received were 136 but the Returning Officer had shown only 69 ballot papers as accounted for in Form No. 20. Out of these 69 ballot papers, petitioner got 42 votes and the respondent No. 1 got only 7 votes and the rest of the votes went to the other candidates. Remaining 67 postal ballot papers were not accounted for at all. Since the Returning Officer had not counted all the 136 postal ballot papers as is clear from Form No. 20, the remaining 67 votes of postal ballots had been wrongly counted in favour of respondent No. 1 as these had not been shown even in the column of rejected votes. The wrongful rejection of valid votes polled in favour of the petitioner and the wrongful reception of void votes and counting of the same in favour of the returned candidate has materially affected the result of the election.

(3.) The staff and the Returning Officer committed serious interpolations, cuttings and overwritings in Form 16A and 16B and check memo Form 20 while preparing the result. On page 1 of Form 20, total votes received at all the polling booths were shown as 85,200. On the very next page i.e. page No. 2 of Form 20, the figure of total valid and rejected votes in the last column has been shown as 85,224/-. This figure of 85,224 was after the addition of 69 postal ballot papers and by adding these 69 this figure should have been 85,269. This material discrepancy has not been reconciled. The total votes received from booth No. 82 was 300 which was interpolated into 360. From booth No. 97, total votes received were 323 but in Form No. 20 this figure was interpolated into 523. Similarly, at booth No. 107, total votes polled were 289 which were interpolated into 482. These interpolations were made by the staff and the Returning Officer with a view to help respondent No. 1 at the cost of the petitioner. The total number of votes shown to have been received from all the 177 polling booths at page No. 1 of Form No. 20 are as 19550+20211+18866+19579+6994= 85,200. These figures are from five columns in which all the polling booths had been divided on page 1 of Form 20. This figure of 85,200 was earlier as 19497+20158+18462+19579+6994= 84,696. Since he was not satisfied with the process of counting, which was tilting the balance in favour of respondent No. 1, he moved an application for re-count on 9.5.1996 at 11.00 P.M., when the result had not been declared. It may be mentioned here that the result was declared on 10.5.1996. The Returning Officer rejected his prayer for recount of votes without assigning any reason and returned the application in original to him with an endorsement that the result had not been announced till the receipt of the application for "re- count". He should have allowed re-count in view of Rule 63 of the Conduct of Elections Rules, 1961, particularly when he and his Counting Agents had been raising their grievance time and again regarding the rejection of votes polled by him which were valid and which should have been counted in his kitty and also the wrongful bundling of votes. He applied for getting the copies of forms 16A, 16B and check memos. Election officials did not supply the copies of forms 16A, 16B and the check memos saying that these had been deposited in the bouble lock. Non-supply of copies of forms 16A, 16B and the check memos shows that the election officials had been trying to conceal and suppress the serious irregularities and illegalities committed by them during the counting because of their sympathetic attitude towards respondent No. 1 and bias/prejudice against the petitioner.