Shankarrao Taware & Anr Vs. Ajit Anantrao Pawar  Insc 153 (20 March 2002)
Pattanaik & S.N. Phukan Phukan, J.
appeal under Section 116A of the Representation of the People Act, 1951 (for
short 'the Act') arises from the judgement dated June 29, 2001 of the High Court of Judicature at Bombay. By the impugned judgment, the High
Court dismissed the election petition.
election petition was filed challenging the election of the respondent from 255
Baramati Assembly Constituency, which was held on 11th September, 1999.
petition was filed by two persons, one was a voter of the constituency and the
other was the counting agent of the defeated candidate viz. Shri Chandrakant K.
Teware. In the said election the respondent Shri Ajit Anantrao Pawar defeated
his immediate rival candidate, Shri Teware by a margin of 50,366 votes. The
petition was filed alleging that certain mal practices were committed at the
time of counting of the votes, under Section 100(1)(d)(iii) of the Act.
allegations, which are relevant for the present purpose, are stated below: -
After the polling, the ballot boxes were to be kept in the MES High School, Baramati
as per programme and when the ballot boxes arrived at the said school and was
in the process of unloading, all the boxes were shifted to the Recreation Hall,
MIDC area at Baramati. According to the appellants this change was made by the
Returning Officer without informing the contesting candidates. As the said MIDC
area is adjacent to the premises of the Vidya Pratisthan Shikshan Sansthan,
which was fully controlled by the family of the respondent and in fact the
respondent was one of the office bearers of the said Pratisthan, this sudden
change caused an apprehension in the mind of the appellants that it was so done
with the oblique motive for replacing genuine ballot papers by fake ones. We
find from the counter that there was heavy rain at Baramati on 9th September, 1999 and rainwater was also collected
around the said High School. Apprehending that there might be rain on
subsequent days and the said High School area might be flooded, the Returning
Officer changed the venue of keeping the ballot boxes for safe custody of the
boxes as in the event of rain the school area might be flooded. It was also alleged
that during counting of votes it was noticed that in the majority of ballot
papers there were signatures on the back side of the ballot papers which were
similar in nature with the same ink and character. It was, therefore, suspected
that genuine ballot papers were substituted by fake ones. In the polling booth
No.235, 455 ballot papers were used and there was no signature of the Presiding
Officer on the reverse side of the ballot papers as required under the rules,
whereas according to the Presiding Officer of the said Booth he signed on all
the ballot papers on the previous day of polling, suggesting that ballot papers
might have been substituted. In this polling booth one ballot paper of Khed
Legislative Constituency was found inside the ballot boxes which was brought to
the notice of Returning Officer by filing a written complaint (Annexure P- 21A)
and according to the appellants the complaint was filed at 2.30 p.m. on 6th of
October, 1999 i.e. while the counting process was going on but the Returning
Officer refused to receive the same. It was alleged that subsequently the
Returning Officer recorded a note at 3.30 a.m. on 7th October,
1999 and, thereafter,
passed necessary orders.
these facts it was also alleged that the Returning Officer was influenced by
the respondent in the conduct of election and counting of the votes.
we proceed to examine the facts of the present appeal, we may refer to the
position of law. In Ram Sewak Yadav versus Hussain Kamil Kidwai & Ors.[(1964)
6 SCR 238] a Constitution Bench of this Court held that power to order
inspection of ballot papers is clearly implicit in Sections 100(1)(d)(iii), 101
and 102 of the Act and Rule 93 of the Conduct of Election Rules, 1961 and an
order for inspection under the Act may not be granted as a matter of course,
having regard to the insistence upon the secrecy of the ballot papers. It was
further held that the Court would be justified in granting an order for
inspection provided two conditions are fulfilled: -
petition for setting aside an election contains adequate statement of the
material facts on which the petitioner relies in support of his case; and
Election Tribunal is prima facie satisfied that in order to decide the dispute
and to do complete justice between the parties, inspection of ballot papers is
Constitution Bench also held that an order for inspection of ballot papers
could not be granted to support vague pleas made in the petition not supported
by material facts or to fish out evidence to support such pleas.
Sumitra Devi versus Shri Sheo Shanker Prasad Yadav & Ors.[(1973) 3 SCC 330]
a three Judge Bench of this Court held in an appeal under Section 116A of the
Act that it has been the consistent practice of the Supreme Court not to
interfere with findings on questions of fact unless there is some grave or
palpable error in appreciation of the evidence on the basis of which the
findings were arrived at.
interpreting clause (d) of sub-section (1) of Section 100 of the Act, this
Court has consistently held that in view of clear language of the provision
even if the allegations in the election petition are found to be proved, the
election petitioner should also establish that the result of the election was
our attention to paragraph 30 of the impugned judgment, Mr. Lalit, learned
counsel for the appellant has submitted that the High Court proceeded on a
wrong legal proposition. In the said paragraph the learned Judge took the view
that in order to succeed in the election petition, the appellants have at least
to create a genuine doubt in the mind of the Court by establishing
circumstances alleged in the election petition beyond all reasonable doubt.
This approach was wrong in view of the settled position of law but we find from
the impugned judgment that subsequently, the learned Judge after discussing
various decisions of this Court recorded the finding that after going through
the records it could not be said that even a genuine suspicion about alleged
mal practice of substituting the valid votes with spurious votes could be
established. We have also perused the impugned judgment and we find after
discussing law and evidence on record, the election petition was dismissed
holding that the appellants failed to make out a prima facie case and could not
be allowed to embark upon a fishing inquiry.
outset we may state here that all the allegations were made against the
Returning Officer and though initially he was impleaded as a respondent,
subsequently, his name was deleted by the order of the court. The High Court
has noted that during the trial the Returning Officer was present in court and
he was also shown as a witness in the list of witnesses submitted by the
appellants. Subsequently, his name was struck off from the said list and was
not examined. The defeated candidate, Shri Teware did not appear as a witness
to support the allegations made in the election petition.
first contention of Mr. Lalit, learned counsel for the appellants is that the
ballot boxes were to be collected at the MES High School and instead boxes were
collected at the Recreation Hall, MIDC without information to the
candidates/agents about such shifting of ballot boxes and this was done in
order to replace ballot papers in the ballot boxes.
High Court has recorded in the impugned judgment that it has come out from oral
evidence of PW-4 that 'there was rain and there was water log in the MES High School......'.
Mr. Lalit has rightly pointed out that no such statement was made by PW-4. On
the contrary, Mr. Ashok Desai has submitted that it was a genuine mistake on
the part of the learned Judge and he has drawn our attention to the evidence of
PW-5, the Presiding Officer of the booth. PW-5 in cross-examination has stated that
when they went to the MES High School on 9th September, rainwater had collected there. We agree
with Mr. Desai that it was a genuine mistake.
have already noted that shifting of the collection centre was for safe custody
of the ballot boxes. In the evidence it has come out that on 9th September, 1999 there was heavy rain at Baramati.
PW-2, the Principal of the school has stated that when it rains in Baramati,
rainwater gets collected at some area of the school. It is the responsibility
of the Returning Officer to keep the ballot boxes in the safe custody,
therefore, the Returning Officer rightly shifted the collection centre for
ballot boxes for safe custody and we reject the contention of the appellants
that it was so done with an ulterior motive.
the evidence of PW-1, the polling agent of Shri Teware who is appellant No.2
herein, it has come out that at the MES High School he waited for 15 minutes
and saw that the boxes were reloaded in the vehicle. He has stated that the
Assistant Returning Officer who was present at the MES High School
informed him that boxes were being shifted as per the orders of the Returning
Officer. PW-3, the Presiding Officer of Booth No.234 who arrived at the MES High School
has deposed that he and other Presiding Officers were informed about the
shifting of collection centre for the ballot boxes. Therefore, the submission
that no notice was given is contrary to evidence on record. In absence of
evidence of defeated candidate, Shri Teware we cannot accept the submission that
no notice was given to the candidates about such shifting.
Recreation Hall, MIDC, which was under the control of the State Government, was
adjacent to Vidya Pratishthan Shikshan Sansthan, which was under the control of
the family of the respondent. The appellants have not adduced any evidence to
support the allegation that any attempt was made by the respondent or any
member of his family to substitute the ballot papers in the ballot boxes.
Desai, learned senior counsel for the respondent has rightly pointed out that
party on whose ticket the respondent contested the election was not in power at
the relevant time and the BJP and the Shiv Sena were in power. This was in
reply to the contention made in the election petition that the respondent was a
nephew of Shri Sharad Pawar, Ex-Chief Minister of Maharashtra who also contested the election for
the parliamentary constituency and got elected.
ballot boxes were received at the Recreation Hall, MIDC, Baramati on September 11, 1999 and were dispatched on next day
i.e. September 12, 1999 to the Storage Centre, Pune. All
ballot boxes were dispatched by 7.30 a.m. except the ballot boxes of Baramati constituency, which were dispatched
at 9.30 a.m. The High Court has recorded that
there were 251 ballot boxes for this Assembly Constituency and on the basis of
evidence of PW-10 it came to the conclusion that it would require 30 to 35
minutes for sorting of ballot papers in each ballot box. On these premises, the
High Court rightly was of the opinion that it would require 125 hours for
opening 251 ballot boxes, sorting out ballot papers of the Lok Sabha and the
Assembly constituency and substituting ballot papers by different set of ballot
papers. Therefore, it would not possible to substitute ballot papers during the
period the boxes were kept at Recreation Hall, MIDC and rejected the plea
holding that it was a 'fertile imagination of the witnesses'. We agree with the
above finding of the learned Single Judge.
have perused the written complaint filed before the Returning Officer in which
two allegations were made viz. absence of signature of the Presiding Officer on
the ballot papers and one used ballot paper for Khed Lok Sabha Constituency was
found in the ballot boxes. A prayer was made before the Returning Officer that
the ballot papers of the entire legislative constituency be scrutinised and
verified. The said complaint was filed by Shri Arun Chandrrao Teware, PW-7 and
time was noted at 2
p.m. The Returning
Officer in his order stated that he found in polling booth No.234 there were no
signatures of the Presiding Officer on the back side of the ballot papers and
he checked numbers of the ballot papers, thereafter he informed the counting
representative that the said ballot papers were from the said polling centre
and the counting agents did not make any objection and gave consent for
counting of votes. After going through the report we do not accept the
contention that the Returning Officer refused to accept the complaint as
alleged. We may sate here that no prayer was made either by the defeated
candidate or any counting agent for recount.
second contention of Mr. Lalit is that in the absence of signature of the
Presiding Officer in Booth No.234 on the back of 455 ballot papers would so
that they were substituted.
to the High Court since only 455 ballot papers were found without the signature
of the Presiding Officer and assuming that the ballot papers ought to have been
rejected, it would not affect materially the result of the election as
respondent won by huge margin of about 50,000 votes. We agree with the above
finding of the High Court. PW-5 was the Presiding Officer at Booth No.234 and
according to him he put his signature on all ballot papers of Lok Sabha
Constituency and in 500 ballot papers of Assembly Constituency on 10th September, 1999 and the Polling Officers checked
each and every ballot papers. PW-6, the Polling Officer of the said booth has
supported PW-3 on this point. According to Rule 38 of the Conduct of Election
Rules every ballot paper before it is issued to the electorate, the counter
foil attested thereto shall be signed by the Presiding Officer on its back.
PW-5 could not explain why he signed the ballot papers on the previous day. A
criminal proceeding has been initiated against him under Section 134 of the Act
for his omission to sign the ballot papers and is pending and, therefore,
according to the High Court he could not have deposed otherwise.
on this ground, the High Court disbelieved PW-5, as it was his endeavour to
justify his action to absolve himself of the criminal charge. This finding of
the High Court cannot be faulted.
respondent defeated Shri Teware by a huge margin of more than fifty thousand
votes. Only 455 ballot papers without signature of the Presiding Officer were
found in Booth No.234. These ballot papers were counted and as the Returning
Officer has recorded in his order there was no objection by the counting
agents. Had these ballot papers been rejected, it would not have also materially
affected the result of the election in view of the above huge margin. Regarding
finding of one ballot paper of another constituency in the ballot box, we are
also of the view that this would also not materially affect the result of the
the allegation that the signature of the Presiding Officers in various polling
booths on the ballot papers appeared to be of similar in character, the High
Court took note of the fact that not a single counting agent in the hall or any
other counting agent raised any objection in writing to the Returning Officer.
In the report of the Returning Officer, it was recorded that he verified the
signatures and was satisfied that the objection raised was unfounded. In the
absence of evidence of Returning Officer, the High Court rightly drew adverse
learned counsel for the appellant has submitted that as ballot papers without
the signature of the Presiding Officers were found in booth No.234, the
appellants may be allowed to inspect ballot boxes in other polling booth to
find out whether there was such omission by the Presiding Officers in other
booths. This submission has to be rejected, as it will amount to allowing the
appellants to fish out evidence to support the contention of the appellants.
perusing the evidence which are available on record and also the impugned
judgment, we are of the opinion that the High Court has not committed any grave
or palpable error in appreciation of the evidence. We are also of the opinion
that the appellants have failed to establish a prima facie case for inspection
of ballot papers.
result appeal is dismissed. Registry shall take follow up action in terms of
sub-section (2) of Section 116C of the Act. Cost on the parties.
March 20, 2002.