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2019 Supreme(Del) 2080
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M SINGH, J.
Delhi High Court Bar Association Thr Its Hony Secretary - Appellant
Versus
Rajiv Khosla And Others - Respondent
Civil Miscellaneous (Main) No. 1295 of 2019; Civil Miscellaneous Application No. 39291 of 2019
Decided On : 05-09-2019
Advocate Appeared:
Abhijat (Hony Secretary In Person), Adv., Arpit Kumar Singh, Adv., Kajal Chandra, Adv., Viren Kapur, Adv., Rajiv Khosla, Adv., J.P. Sengh, Adv., Manisha Mehta, Adv., Shashi Pratap Singh, Adv., R.L. Sinha, Adv., Vapika Malik, Adv., Anu Bagai, Adv., Amit Saxena, Adv., Mohinder J.S. Rupal, Adv., Hardik Rupal, Adv., Prang Newmai, Adv., Koushik Ghosh, Adv., Naman Garg, Adv., Aditi Shashtri, Adv., G.K. Pathak, Adv., A.D.N. Rao, Adv., Venkatesh Rao, Adv., Rahul Mishra, Adv., Avni Sharma, Adv., Sukamal Banerjee, Adv.
The central legal point established in the judgment is the need to preserve EVM data for adjudication of election-related disputes while balancing the practical requirement of using EVMs for upcoming elections.
Headnote:
Preservation of EVM Data - Challenge to Preservation Order - Order XXXIX Rules 1 & 2 CPC - [Order XXXIX Rules 1 & 2 CPC] - The court discussed the preservation of EVM data and the challenge to the preservation order under Order XXXIX Rules 1 & 2 CPC. The court directed the retrieval of data from the EVMs, erasure of memory, and release of EVMs for conducting DUSU elections.
Fact of the Case:
The Plaintiff filed a suit challenging the elections to the Executive Committee of the Delhi High Court Bar Association and sought preservation of documentary evidence including EVMs, polling slips, and videography. The court granted an interim order for preservation of the election record.
Finding of the Court:
The court found that the data in the EVMs needed to be preserved to adjudicate the suit's issues and allowed the retrieval of data, erasure of memory, and release of EVMs for the DUSU elections.
Issues: The issues included the challenge to the preservation order, the need for preservation of EVM data, and the release of EVMs for DUSU elections.
Ratio Decidendi: The court's decision was based on the need to preserve the integrity of the data in the EVMs for adjudication of the suit's issues and the practical requirement of releasing EVMs for the DUSU elections.
Final Decision: The court directed the retrieval of data from the EVMs, erasure of memory, and release of EVMs for conducting DUSU elections.
JUDGMENT :
PRATHIBA M. SINGH, J.
1. The challenge in the present petition is to the order dated 31st May,2019 passed by the ld. Trial Court in an application under Order XXXIX Rules 1 & 2 CPC wherein the Trial Court granted an interim order in the following terms:
"...
Arguments heard and gone through the record. In view of the submissions made, plaintiff has a prima facie case in his favour, and if the documents are destroyed or tampered with, it would cause irreparable loss to the plaintiff. Further balance of convenience is also in favour of the plaintiff and none of the defendants are going to be adversely affected by the present order.
In the circumstances, defendants no.1 Delhi High Court Bar Association, defendant no.2 Election Commission, defendant no.3 Registrar General, Delhi High Court and defendant no.12 Registrar, Delhi University are hereby directed to preserve the entire election record in their respective custody till further orders of this Court, including EVM, polling slips, electoral slips, unused and used polling slips and videography of the entry of the polling area and exit of the polling area beside other videography. Application accordingly disposed off."
2. The background of the present petition is that the Respondent No.1/Plaintiff - Mr. Rajiv Khosla (hereinafter, 'Plaintiff') filed a suit challenging the elections held to the Executive Committee of the Delhi High Court Bar Association (hereinafter "DHCBA') on 17th May,2019. The said suit raises various allegations, which are being considered in the pending proceedings before the ld. Trial Court. For the purpose of conducting the elections, Delhi University had provided Electronic Voting Machines (hereinafter "EVMs") for which charges were borne by the DHCBA. The Plaintiff had moved an application under Order XXXIX Rules 1 & 2 CPC in the said suit seeking preservation of the documentary evidence in the form of videography, EVMs, polling slips, electoral slips, etc. The above order came to be passed in the said application.
3. Subsequent to the above order, the Delhi University filed an application before the ld. Trial Court seeking release of the EVMs on the ground that the elections to the Delhi University Students Union (hereinafter "DUSU") are scheduled for 12th September,2019 and the EVMs are required for the purposes of conducting the DUSU elections. In the said application, the Court issued notice and the matter was listed on 3rd September,2019. Considering the proximity of the elections, the DHCBA has filed the present petition seeking permission for release of the EVMs to Delhi University.
4. On 2nd September,2019, the present petition was listed before this Court and an intimation was given to the Plaintiff and other Respondents for appearance on 3rd September,2019. On 3rd September,2019, after hearing parties, the following order was passed:
"1. The present petition challenges the impugned order dated 31st May 2019 by which the trial court has directed as under:
"In the circumstances, defendants no.1 Delhi High Court Bar Association, defendant no.2 Election Commission, defendant no.3 Registrar General, Delhi High Court and defendant nno.12 Registrar, Delhi University are hereby directed to preserve the entire election in their respective custody till further orders of this Court, including EVM, polling slips, electoral slips, unused and used polling slips and videography of the entry of the polling area and exit of the polling area beside other videography."
2. The petition was listed yesterday and the Petitioner was directed to intimate the Respondent no.1 of the filing of present petition.
3. Mr. Rajiv Khosla - Respondent No.1, who has appeared in person, has raised the following objections.
(a) That the Delhi High Court Bar Association has no locus standi to challenge the order dated 31st May,2019 (hereinafter "impugned order").
(b) That the said challenge filed before this Court is highly belated. If they were aggrieved by the impugned order and the e
