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IN THE HIGH COURT OF ALLAHABAD
DINESH KUMAR SINGH-I, J.
Seema Sachan - Petitioner
Versus
Ajeet Singh Pal And 9 Others - Respondents
Election Petition No. 1 of 2018
Decided On : 10-03-2021
Representation of People’s Act 1951 - Section 33 and 61-A - Conduct of Election Rules, 1961 - Rules 49-S, 55-C, 56-C, 56-D, 66-A and 93 - Election Petition - Member of legislative assembly - Election Commission of India - Nomination - Production and inspection of election papers - Seeking election of respondent no. 1/returned candidate as member of legislative assembly from 207, Legislative Assembly Constituency, Kanpur Dehat, U.P. to be declared as void and also get herself declared successful in his place - Seals of EVMs (control unit) were found tampered with and broken right from beginning of the counting which remained continued till the completion of last round of counting - Counting agents of Election Petitioner had made complaints in respect of EVMs’ seals having been found broken and tampered with during the counting, continuously and repeatedly to Returning Officer - whether EVMs are found tampered with and their seals broken of the booths as alleged in para 10 of complaint - Whether provisions of Sections 64 and 66 of Act and Rule 49S, 55C, 56C, 56D and 66A of the Rules of 1961 have been violated? if yes, its effect -
Finding of the court: Court view that on this issue, main thrust is being laid by the petitioner on the non-compliance of Rule 49S of the Rules 1961, which provides that Presiding Officer at close of poll shall prepare an account of votes recorded in the form 17-C and enclose it in a separate cover with words "accounts of votes recorded" subscribed thereon and that Presiding Officer shall furnish to every polling agent present at close of the polling, a true copy of entries made in Form 17-C after obtaining a receipt from said polling agent and shall attest it as a true copy - It is apparent from pleadings as well as evidence led from side of petitioner that though it has tried to prove unsuccessfully that copy of the Form 17C was never prepared and hence same was not provided to polling agents by the Presiding Officer but even if that be treated to be correct allegation, learned counsel for petitioner has miserably failed in proving as to how said non-providing of the copy of Form 17C has resulted in materially affecting election result of returned candidate - Merely mentioning that copy of Form 17C was not given to the polling agent would not suffice to conclude that copy of same was never prepared. Moreover, it is also apparent that petitioner had full opportunity to obtain a copy of Form 17C from Election Office under Rule 93 of the 1961 which has not been done nor any evidence has been shown that any effort was made to obtain same and his request was refused - Petitioner cannot be allowed liberty to shift this burden upon respondent that he should have obtained a copy of Form 17C in order to defend that returned candidate had won the election in accordance with law and Rules - From evidence which has been adduced from the side of the respondent no. 1, it is true that DW-1 has been evasive with respect to questions, which were asked, pertaining to Form 17C as she had answered that she cannot reply regarding these factual aspects unless she sees the record and it cannot be believed that she might not be knowing about Form 17C but even if it be taken to be true that copy of Form 17C was not provided, other condition which was required to be proved by the petitioner, is that said breach of mandatory Rule actually materially affected the election of respondent no. 1. Neither there appears to be any specific pleading on record in that regard nor clear
Result: Election petition dismissed
JUDGMENT :
1. Heard Sri Vijay Bahadur Singh, learned Sr. Advocate assisted by Sri Jitendra Kumar, learned counsel for the petitioner and Sri Bharat Singh Pal, learned counsel for the Respondent No. 1.
2. This Election Petition has been filed by Ms. Seema Sachan seeking election of Ajeet Pal Singh, respondent no. 1/returned candidate as member of legislative assembly from 207, Sinkandra Legislative Assembly Constituency, Kanpur Dehat, U.P. to be declared as void and also get herself declared successful in his place. Uttar Pradesh Vidhan Sabha, By-Election, 2017 of 207, Sinkandra Legislative Constituency, Kanpur Dehat was notified on 27.11.2017 and the schedule of election was as follows: (1) Date of notification of election 27.11.2017; (2) last date for filing of nomination paper 4.12.2017: (3) date of scrutiny of nomination paper 5.12.2017: (4) date of withdrawal of candidature 7.12.2017: (5) date of poll 21.12.2017: (6) date of counting 24.12.2017: (7) date before which election shall be completed 26.12.2017; and (8) hours of poll 08:00 a.m. to 05:00 p.m.
3. The Election Commission of India, in exercise of its power conferred under Section 61-A of the Representation of People’s Act 1951 ( in short to be referred hereafter as ‘The Act’ ) read with Rule 49-A of the Conduct of Election Rules, 1961 ( in short to be referred hereafter as ‘Rules of 1961’) issued a direction on 14.12.2017 that the current by- Election of State Legislative Assembly including 207, Sikandara Legislative Assembly, Kanpur Dehat, U.P., notified on 27.11.2017, shall be held as per the schedule mentioned above in para 1 and votes would be recorded by means of Electronic Voting Machine (E.V.M.) and Voters Verifiable Paper Audit Trail (V.V.P.A.T.) printers under Rules of 1961 and Supplementary instructions issued from time to time by the Election Commission of India. The said direction dated 14.12.2017 was published in Official Gazette of the States including the State of Uttar Pradesh.
4. As per the schedule, the candidates filled up the nomination form in terms of Section 33 of the Act. The present Election Petitioner has also filled up her nomination form as a candidate of Samajwadi Party and was allotted a symbol of Cycle. The returned candidate (respondent No. 1), Ajit Singh Pal submitted his nomination form as a candidate of Bhartiya Janata Party (B.J.P.) and was allotted symbol of ‘Kamal Ka Phool’ (lotus). Similarly the other candidates who have been impleaded as respondent nos. 2 to 10 are of different parties and were also allotted other symbols, details of which are mentioned in para 4 of the petition. The Returning Officer after scrutinizing all the nomination papers of all the candidates of the constituency, published a list of contesting candidates in terms of Section 38 of the Act whose names are given in tabular form in para 5 of the Petition. The counting of votes took place on 14.12.2017 and on the same day, result was announced by the Returning Officer wherein respondent no. 1-returned candidate was illegally declared elected from the constituency in question. The election of the returned candidate is being assailed on the following grounds: (a) the election of the respondent no. 2-returned candidate has been materially affected on account of non-compliance by the Returning Officer of mandatory provision of Sections 64 and 66 of the Act and Rules 49-S, 55-C, 56-C, 56-D and 66-A of the Rules of 1961, who has acted against the said provisions; (b) The election of returned candidate has been materially affected on account of improper reception of votes of Electronic Voting Machines, seals of which were found tampered with and broken at the time of counting; (c) the election of the returned candidate has been materially affected on account of the fact that the presiding officer did not give true copy of the entries made in F
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