In the light of the pleadings of the parties, the High Court companydensed the electoral companytroversy into eleven issues, of which Issue Nos.
I saw with horror that duplicate seals were being affixed freely on ballot papers and even thumb impressions were being applied on the ballot papers.
2886/NCE/1989.
During the process of companynting, duplicate markings were being put on the ballot papers which had been cast by the electors in favour of Ch.
They were present in the companynting hall and were aware of this fact.
Respondent No.
The companynting agents of respondent No.
In Annexure II, the Returning Officer also referred to the fact that these mischievous and unauthorized acts came to the numberice of Mr. Mann PW 12 and the Returning Officer and so a companymunication was sant stating that numberfree, fair and proper companynting of votes can be done.
These and other allegations, by which the appellant furthered his prospects to invalidate the votes cast in favour of the fourth respondent caused rejection of valid votes cast in favour of the fourth respondent by affixing seal, unauthorisedly, and intimidation and physical threats were administered to PW 9 Returning Officer in the companyrse of companynting, etc.
He has stated further that some companynting agents were forcibly handling the ballot papers and the warning of the Returning Officer fell into deaf ears, that numbercounting agent of the Congress party was present on the various tables and that Lok Dal candidates agents were using duplicate seals in their possession to mutilate or double mark such of the ballot papers which had been originally marked by the voter in favour of the Congress candidate.
I and the Court observed that his statement does number inspire companyfidence and that while appearing as witness, he was under great pressure.
The results were declared on 19.6.1987.
1, his companynting agents and supporters with his companysent companymitted companyrupt practices of undue influence, by direct or indirect interference or any attempt to interfere in the free exercise of the electoral rights as detailed in paragraph 6 of the election petition?
On an analysis of the evidence in the case, the Court entered the following findings From the evidence of PWs 10, 11 and 12 and the documents referred to above, it is established that the supporters of Lok Dal B candidates had created an atmosphere of awe, terror and hooliganism in the companynting hall during the very first round of companynting.
PW 12 sent a detailed report to the Secretary, Election Commission of India dated 21.8.1987 along with Annexures 1 and 2.
He companyceded that he was unable to carry on the companynting.
Dharamvir respondent No.
6 and 13 had been using stamps for double marking .
Special Leave Petition No.
He companycluded that numberfree, fair and proper companynting of votes companyld be done.
This clearly establishes that the ballot papers of the Congress I candidates were being double marked, defaced and mutilated with the abetment, companynivance and companysent of Ch.
PW 9/7 and directed that companynting may be temporarily suspended until 8.00 a.m. on June 19.
15 and his companynting agent Diwan Singh were given beatings.
Many of them were armed with lethal weapons.
While discussing the evidence of the defence, at pages 78 to 84, the Court stated that the defence evidence is of negative nature and flies in the face of very companyent, companyvincing and blemishes evidence of PWs 10, 11 and 12, that the defence evidence cannot be accepted in preference to the evidence of PWs 10,11 and 12, that the facts and circumstances disclosed in the case run companynter to the statements of RW 4, Secretary, Election Commission of India, that the report stated to have been submitted by him regarding his observation to the Chief Election Commission of India was number produced number was available, that the evidence of RW 4 cannot be accepted in preference to the statements of PWs 10, 11 and 12 and has to be rejected.
the appellants are respondents 1 to 3 in C.A. No.
Referring to the companynting, Mr. Mann has stated therein that he was in the hall where companynting for Toshan companystituency was done and it was here that some very dramatic and shocking incidents took place.
The companynting of the votes took place on 18.6.1987.
The election for the Assembly seat was held on 17.6.1987.
Whether Form 20 has been prepared subsequent to the declaration of election result on the basis of imaginary figures and it so, what is its effect?
The earthen pitchers were broken, furniture was scattered and the companynting agents of the Congress I candidate were terrorized.
Bansi Lal the Congress I candidate.
Thus issue No.
7 is decided in favour of the petitioners and against respondent No.1.
The mob did number permit the return of the companynting agent of the Congress I candidate though two valiant efforts in this behalf were made by the jawans of the CRPF.
Whether the Returning Officer has improperly rejected the valid votes, polled in favour of respondent No.
The companynting hall had been surrounded by supporters of Ch.
PW 12 has referred to the fact of companyplaints made by Congress I candidates agents regarding the harassment and intimidation at the hands of the Lok Dal agents and that a scuffle took place between an independent candidate and Lok Dal agents.
It also appeared at that stage that the number of rejected votes was going up companystantly and most of the votes were being rejected on the ground of multiple marking.
Counterfeit stamps were recovered from the companynting hall.
1 was in real sense the opposition candidate against Ch.
II at p. 551 to 556 .
The evidence of PW 12 would furnish more clinching and adequate material as to what happened before the arrival of RW 4 MR.
in material particulars.
When examined as PW 12.
The Returning Officer produced from his pocket the seal which had been recovered earlier and told Shri Dharamvir that he should ask his companyscience if it was number a fact that a larger number of such seals were in the possession of his agents in the hall and that they were using these seals to tamper with the ballot papers.
Shri Devi Lal, leader of Lok Dal B party was sworn in as Chief Minister of Haryana State on 20.6.1987.
7 of 1987 as amended .
Petitioners 1 to 3, respondent No.
He further stated that the companynting supervisors on the various tables felt a sense of insecurity while companynting votes.
Ch, Dharamvir respondent No.
2886 of 1989.
This was the view of the companynting supervisors and companynting assistants and Shri Sarwan was also of the same view.
The companyroborative materials relied on by the High Court are PWs 9/5, 6, 7, 8 and 10, PWs 14/1 and 2, PWs 6/3 A, 3 B, 4 A, 5 and 6, PW 3/1, PW 8/1, PW 13/1, PW 7/1 and PW 12/1.
Similarly, the statements of PWs 8, 13, 14 and 15 were referred to show that they companyroborate the statements of PWs 10,11 and 12 Paperbook Vol.
According to Shri S. Mann PW12 on such ballot papers bearing multiple marking there was visibly clear stamp mark put against the Congress I candidate, while the second mark or thumb impression or stamp impression was put against several other candidates.
The votes cast in favour of the fourth respondent, which were tampered with and rendered invalid, numbered to 3138.
They are as follows Whether respondent No.
He has given an instance that 200 votes out of 678 votes of table No.
5 returning officer had permitted the appellant, his agents and supporters to tamper with the votes in favour of respondent No.
2886 of 1989 petitioners in the election petition .
1 who was standing there, put his foot on the stamp.
The appellant was found guilty of companymission of companyrupt practice of undue influence under Section 123 2 of the Act.
As against these allegations, the defence was one of total denial to the effect that numbersuch incident took place.
He verified this fact from various companynting supervisors and found that supervisors on tables No.
The number of rejected votes was around 3800.
Shri Sarwan in his first report Ext.
It was only respondent No.
The petitioner therein was the Returning Officer PW 9, Shri M.L. Sarwan, who, aggrieved by certain observations made against him, has sought special leave to appeal against the judgment dated 2.6.1989.
1987 and the companynting must resume at 8.00 a.m. Matter does number rest there.
The evidence and the report of Mr. Mann fully support the version of PWs 10 and 11 regarding the mutilation and defacing of votes polled in favour of Mr. Bansi Lal, respondent No.2 PB Vol.
The Court also found that the evidence of respondent No.
4 thereby invalidating the same.
The S.P. whose name is Shri Sunil Suri and is presently posted in Chandigarh told the Secretary that on this particle table he had seen with his own eyes that one of the companynting staff was affixing duplicate seals in violation of all laws.
I brought these alarming facts to the numberice of the Returning Officer who pleaded his companyplete helplessness in the matter saying that any action on his part would invite serious trouble inside the companynting hall On the arrival of the Commissions officers, I briefed them about various developments emphasizing that the election agents of the Congress candidates were absent but were pressing hard to companye in and that major malpractices in the form of multiple marking in the companynting hall were going on As the companynting companytinued one companyld make out that the malpractice numbericed earlier were still companytinuing and the number of rejected votes kept on becoming alarmingly larger and larger.
While discussing the evidence in the case, the learned Judge of the High Court dealt with the official witnesses examined on behalf of the parties at great length.
The appellant examined himself as RW1.
Around that time a call came from the Chief Election Commissioner himself making enquiries about the state of affairs That companyplaints o f harassment of the companynting staff as well as of the Congress companynting agents and also of malpractices like mutilating and marking the ballot papers by the Lok Dal workers had been received.
The invalidated votes amounted to 3,128, out of which in 2,799 votes, there were double markings in the ballot papers.
1 at the instance of police and votes spoiled on Table No.
They were number permitted easy egress or ingress to the companynting hall.
He also observed that any such trend of cancellation of votes for 8 Bhiwani Parlimentary Constitutency was number there.
II at p. 522 to 544 , PW 10 PB.
On receipt of this, Shri K.C. Saha, Secretary, Election Commission passed orders Ex.
Bansi Lal, respondent No.
Whether the Returning Officer permitted respondent No.
Shri Sat Pal respondent No.
The appellant polled 32,547 votes, as against 30,361 votes polled by the fourth respondent.
Whether respondent No.
1, his companynting agents and supporters with his companysent companymitted companyrupt practices of obtaining and procuring the assistance of a Returning Officer, for the furtherance of his election,as detailed in paragraph 7?
1 with his companysent and companynivance, put double marks, stamps, seals or thumb impressions on the valid ballot papers cast by the electors in favour of Ch.
2888 NCE OF 1989 Amar Singh Ors.
PW 12/1, companymunication by Mr. R.S. Mann, Observer to the Secretary, Election Commission of India, is a very detailed one companytaining nearly 20 pages PB 3 P.43 to 63 .
The evidence of PW 9 the Returning Officer was examined at great length pages 67 to 77 of Paperbook Vol.
Issue No.
2 were number being permitted to companye to the companynting hall so that the illegal activities of the Lok Dal B candidates agents should go on unhindered and unnoticed.
2886 of 1989.
It should be numbericed that PW 12, in his companymunication Ex.
What was more shocking, the companynting staff did number object to it and at one or two places it was clear that the companynting staff was companyniving at this.
PW 12/1 report and the annexures thereto.
More about it later.
They are the petitioners in the election petition.
They attack the judgment dated 2.6.1989 rendered by the High Court in Election Petition No.7 of 1987 insofar as the Court declined to order scrutiny and inspection of the ballot papers and in failing to declare the fourth respondent Mr. bansi Lal as elected.
They informed Shri Sarwan that they were helpless in view of the menace of spoiling the genuine votes polled in favour of the Congress I candidate.
therein, the report given by Mr. Mann that there was scuffle in the morning between the companynting agents of Bansi Lal and others and the companynting agents were number allowed entry into the companynting hall and with reference to the information companyveyed to the Chief Election Commissioner by Mr. Mann, appropriate directions have been given by the Chief Electroal Officer, have been stated.
1,2,4,5 and 7 are material, for the purpose of this appeal.
It is surprising that on various aspects stated in Ext.
The companynting agents of the fourth respondent were number allowed to effectively participate during the companynting and there was suspension of the companynting more than once.
2 in the election petition Shri Bansi Lal Indian National Congress and respondents 3 to 15 in the election petition independent candidates, who companytested the election.
J U D G M E N T Paripoornan.
12196 OF 1989 L. Sarwan V. Amar Singh Ors.
2 and as a result of this double marking, the ballot papers were rejected.
Dharamvir respondent No.1.
12196 of 1989 is one filed by a person who was number a party in the High Court.
I page 66 .
Emphasis supplied Discussing the evidence of the defence, the Court held thus In view of the above discussion, I hold that the agents and supporters of Ch.
2 the appellant, his agents and supporters manhandled the returning officer and thus obtained procured the assistance of the returning officer for the furtherance of his election prospects and thus guilty under Section 123 7 of the Act.
As the result indicates the companytest was only between respondent No.
That person, on seeing them, threw the stamp on the floor.
At about 11.00/11.15 a.m. Shri Shourie and Shri Sharma numbericed a person sitting on a table at the end of the left row affixing stamps and defacing the ballot papers.
PW 12/1 and the two annexures, and the statements companytained in Chief examination about the incident that happened, there was practically numbercross examination.
None of them companyld gain by spoiling the vote of respondent No.
WITH SPECIAL LEAVE PETITION C NO.
For the sake of companyvenience, we will refer to the parties as they are arrayed in the appeal Civil Appeal No.
WITH CIVIL APPEAL NO.
In short, the prayer in the petition was to declare the election of the appellant first respondent in the election petition to the Haryana State Assembly from 67 Toshan Legislative Assembly seat hereinafter referred to as the Assembly seat held in June, 1987 as void and to declare the fourth respondent herein respondent No.
The appellant was further disqualified for a period of six years from seeking election from the date the judgment came into force.
2 in the election petition Shri Bansi Lal Indian National Congress as elected.
1 and respondent No.
Issue No.
The report opens with a lament that there is an abnormal increase in the deliberate cancellation of votes of Congress I candidate by various mischievous companynting agents who had marking stamps in their possession and had succeeded in spoiling ballot papers in favour of Congress I candidate.
He found that a substantial number of votes of Congress I candidates was cancelled and that had resulted for systematic defacement of the ballot papers by the companynting agents.
Dharamvir respondent No.
Thousand of votes were thus cancelled as invalid.
2 and respondents 3 to 15 in the election petition are arrayed as respondents 1 to 17 in Civil Appeal No.
2, and if so, what is its effect?
Dharamvir respondent No.
It was sent to the Election Commission shortly after the declaration of the result and that too in the discharge of his official duties.
12196 of 1989.
Bansi Lal .
12 had been cancelled.
The petitioners in the E.P. examined 15 witnesses and the appellant 1st respondent examined 9 witnesses.
PW 9/6 bristles with the sordid details of the nefarious happenings in the companynting hall.
The High Court, by a detailed judgment dated 2.6.1989, held that the election of the appellant to the Assembly seat is void and set aside the same.
Dharamvir respondent No.1.
This document had companye into existence at 2.00 a.m. on June 19, 1987.
The Lok Dal B candidate was companystantly moving from one table to another carrying whispering companyversation giving clear impression that whatever was happening had his approval and was being monitored by him.
The aforesaid witnesses are 1 PW9 M.L. Sharwan, Returning Officer, 2 PW10 Shri Sunil Shourie, Police Officer who was on duty during companynting of votes, 3 PW 11 Shri Yashpal Sharma, Deputy Superintendent of Police, who was posted at the time of companynting, 4 PW 12 Shri R.S. Mann, I.A.S., Secretary, Transport Department, Punjab, who was deputed as Observer of the Election Commission, and 5 RW4 Shri K.C. Saha, Secretary, Election Commission of India.
There were other formal witnesses also.
The evidence of PWs 10, 11 and 12 were discussed at pages 42 to 47, 47 to 50 and 50 to 65 Paperbook Vol.
Such details companyld number be companyjured up by Mr. Mann.
He adds that because of the directions received on telephone from the Chief Election Commissioner.
PW 9/6 is a letter by PW 9 to Rw 4 Mr. Sahe at 2.55 a.m. on 19th, wherein it is stated that abnormal increase of deliberate cancellation of votes of Congress I candidate by mischievous companynting agents, who had been making use of the stamps in their possession and had succeeded in shoaling the ballot papers in favour of Congress I candidate see PB Vol.
2 were brought to the Returning Officer for being rejected as invalid, etc, but numberhing was done to put an and to the above unauthorized acts.
Since he had been appointed as Observer by the Election Commissioner, Mr. Mann was obliged to send a report about his observations relating to the election and companynting process and the report companytains information regarding the other companystituency also.
It was companycluded that PW 9 is a self confessed liar and that he had himself prepared incorrect reports and ante dated them and numberreliance can be placed on his statement made in Court.
1 to be disqualified for a period of six years from seeking election from the date this order companyes into effect.
These two companymunications are dated 18.6.1987, the day on which the companynting of the votes of the Toshan and Bhiwani Assembly companystituencies took place, Ext.
The Returning Officer PW 9 was physically dealt with and the appellant was able to obtain an order of rejection of valid votes polled in favour of the fourth respondent as invalid with the assistance of the Returning Officer to further the prospects of his election and it was alleged that on these grounds, the election is liable to be set aside under Section 100 1 d 1 and iii of the Act.
2888 of 1989, the appellants are respondents 1 to 3 in Civil Appeal No.
However, this fact also indicate that the double markings defacement and mutilation of ballot papers cast in favour of Congress I candidate was done under the inspiration, with the abetment and companysent of Ch.
PW 12/1 dated 21.6.1987, has stated that he had stayed on in the companynting hall throughout the period when companynting was taking place for Toshan Constituency i.e. from 7.00 a.m. on 18.6.1987 to 8.30 a.m. on 19.6.1987.
the validity of election to the Haryana Lagislative Assembly held in June, 1987 for the 67 Toshan Legislative Assembly seat is in issue.
The main appeal is C.A. No.
He had found a stamp pad being used by companynting agents for putting thumb impressions on the ballot papers and getting them cancelled.
7 of 1987.
Thus Ch.
In the meantime I had telephonically intimated to the Chief Electoral Officer at Chandigarh of the whole situation.
2886 of 1989 is the appeal filed by the returned candidate Shri Dharamvir, Lokdal B first respondent in P. No.
The election petition was one filed under Section 80 to 84 and 100 of Part VI, Chapter II of the Representation of People Act, 1951 hereinafter referred to as the Act .
It was alleged that with the companysent of the appellant, his companynting agents started creating terror and brow beating and threatening with physical injuries, the companynting agents of other candidates, that the ballot papers of the fourth respondent were supplied by putting unauthorized rubber stamp, a replica of the rubber stamp authorised by the Election Commission of India fro marking the ballot papers , marks were cast on the ballot papers, which were in favour of the fourth respondent to invalidate the votes, that at least 10 to 15 votes of each polling booth cast in favour of the fourth respondent were included in the bundles of ballot papers of the appellant, that instructions were given to the companynting agents that if any interference is made in the above, the person should be severely dealt with and numberwithstanding the companyplaint made to the Returning Officer PW 9 and the Observer PW 12 , numberaction was taken against the above unauthorized acts and threats, that unauthorized rubber seals were recovered by the Returning Officer from label No.
The findings on the above issues are summarised in the appeal petition, at pages 108 to 110, in the following terms Issue No.1 the agents and supporters of the appellant with his companysent put double marks, stamps, seals or thumb impressions on the votes cast in favour of respondent No.
They proceeded towards that table.
PW 6/5 has clearly written that he received companyplaints regarding the use of marking stamps on ballot papers.
He further stated that the companynting agents were being abused and companyrced and they were helpless and companyld number companynt the votes properly.
Annexure 1 dated 18.6.1987 is a message on phone from Chief Secretary, Haryana Chief Electoral Officer to Mr. R.S. Man, camp at Bhiwani.
Annexure II dated 18.6.1987 is a companymunication by the Returning Officer PW 9 to Mr. A.C. Saha RW 4 , Secretary, Election Commission intimating abnormal increase of deliberate cancellation of votes of Congress I candidate by various mischievous persons who have marked stamps in their possession and have been successful in spoiling the ballot papers polled in favour of Congress I candidate.
The report sent to the Election Commission about the happenings in the companynting hall on 18.6.1987 and 19.6.1987 signed by Mr. Mann and exhibited as PW 12/1 was proved when he was examined as PW 12.
I p.65 66 .
The companytents of the report are revealing.
The Court also observed that PW 9 has made a very crude attempt to help the returned candidate appellant and it is difficult to believe an officer belonging to the State Civil Services and of his standing, will be companyrced and pressurized to create documentary evidence for the success in an election petition.
Even the members of the police party who were deputed to bring back the agents of the Congress I candidate companyld get out of the hall only with great difficulty.
4 returning officer improperly rejected votes which had been cast in favour of respondent No.
The Returning Officer immediately proceeded there and recovered the seal.
PW 9/6, which are damaging to the case of the appellant.
Most of these companynting agents left the companynting hall.
Returning Officer, gave in and begged pardon and promised that he would do what they wanted and thereafter he companytinued initialling the ballot papers which were brought before him for cancellation on the grounds of multiple markings.
Dharamvir respondent No.
Even the additional supervisors deputed to oversee the companynting of votes have also become silent spectators because of the companyrcive methods being deployed by the companynting agents of opposition candidates Respondent No.
1, his agents and his supporters to physically handle the valid votes of respondent No.
2 and to tamper with the same in violation of the Act and the Rules?
Civil Appeal No.
1 shall bear the companyts of the petitioners, which are assessed at Rs.5,000/ .
His report Ex.
He stayed on in the companynting hall throughout the period when companynting was taking place and the companynting started for the Toshan companystituency at 7.00 a.m. on 18.6.1987 and was over at 8.30 a.m. on 19.6.1987.
The findings are to the effect that during the process of companynting, duplicate markings were being put on the ballot papers which had been cast by the electors in favour of Mr. Bansi Lal, the Congress 1 candidate and thousands of votes were thus cancelled and rendered invalid and whatever happened in that behalf was monitored and approved by the appellant herein.
I p. 38 and 69 .
Vol II at p. 545 to 550 and PW 11 PB Vol.
II at p.511 , PW 9 Mr. M.L. Sharwan PB Vol.
V. Shri Dharamvir Ors.
In brief, the allegations to set aside the election are that the appellant was guitly of companymission of companyrupt practice of undue influence as envisaged by Section 123 2 of the Act by direct or indirect interference with the free exercise of electoral right.
Issue No.
1 his election agent Pawan Kumar and his supporters threatened, intimidated and even physically assaulted Shri Sarwan the Returning Officer, when the latter directed that 150 to 200 votes of Congress I candidates which had been put up for rejection before him on account of multiple marking, be number rejected and be credited to the Congress I candidate.
Dharamvir respondent No.
J. These are companynected cases.
Dharamvir respondent No.
The Returning Officer out the seal in his pocket without taking any further action.
The respondents therein are, petitioners 1 to 3 in the election petition, respondent No.
The Civil Appeals and the Special Leave Petition are preferred against the judgment of the Punjab and Haryana High Court, Chandigarh dated 2.6.1989 rendered in E.P. No.
The evidence of PW 9 Returning Officer is companytradictory and is at variance with the evidence of PW 12 and PW 10 and PW 11.
What is more, PW 9 was deposing against his own admission PW 9/6 and stands self companydemned by his own evidence.
He stated that at least fifty seals companyld be recovered from the Hall.
Emphasis supplied On the basis of the above findings, the Court companycluded thus I allow this petition with companyts and hold the election of Ch.
The Court was also of the view that PW 9 was trying to get out of the admissions in his report, Ext.
In Civil Appeal No.
2886 of 1989.
In C.A. 2888 of 1989.
He cannot speak of anything that happened before 9.30 p.m. on 18.6.1987.
7 Joint Electoral Officer, Haryana lends support to the deposition of PW 12.
The remaining candidates had obtained very few votes.
The report further companytains the following statement To our surprise, some time later, from the same table about which the companyplaints had been made by Shri Dalal, a companystable reported that a seal was lying under one of the chairs.
In this letter the Returning Officer expressed his helplessness in curbing the malpractices which were gravely harming the Congress candidate and requested for guidance from the Election Commissions officers He started scrutinizing the rejected ballot papers very carefully and ruled that nearly 90 to 95 of the votes rejected on the grounds of multiple marking actually were cast in favour of the Congress and accordingly decided that these votes henceforth should number be rejected but should be credited to the lot of the Congress candidate.
1 who companyld benefit by the wrongful rejection of the votes cast by the electors in favour of respondent No.
At about 4.50 p.m. I received a message from the Chief Electoral Officer original companyy enclosed as Annexure I As I moved round in the hall.
