Amit vs Rakam Singh & Ors.

Rupinderjit Chahal, J.

The present petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Certiorari, seeking quashing of the order dated 12.03.2024 passed by the learned Additional District Judge, Panipat in Civil Appeal No. CA/280/2023 as well as the order dated 10.11.2023 passed by the learned Additional Civil Judge (Senior Division), Panipat, in CIS No. EP/02/2022.

The facts giving rise to the present petition are that the election to the post of Sarpanch of Gram Panchayat of village Khalila Majra, Panipat, was held on 02.11.2022, wherein the petitioner and respondent No.1 each secured 302 votes while one vote was NOTATA. On the basis of draw of lots, the petitioner was declared elected. Aggrieved thereof, respondent No.1 filed an election petition bearing No. EP/02/2022 dated 09.11.2022, seeking setting aside of the election of the petitioner on the ground that corrupt means had been employed, including allegations of double polling. The learned trial Court, vide order dated 10.11.2023, allowed the election petition and recorded a finding that four votes had been cast twice. Consequently, the election of the petitioner was set aside and fresh elections were directed to be conducted. Aggrieved by the said order, the petitioner preferred an appeal being Civil Appeal No. CA/280/2023, which came to be dismissed vide order dated 12.03.2024, affirming the findings recorded by the learned trial Court. Still aggrieved, the petitioner filed the present petition challenging the concurrent findings recorded by the Courts below. A petition and set aside the orders dated 10.11.2023 and 12.03.2024 and remanded the matter for fresh consideration. Aggrieved by the said order, respondent No.1 approached the Hon’ble Supreme Court, whereupon the order dated 04.02.2025 passed by this Court was set aside and the matter was remanded back to this Court for fresh adjudication on the basis of the evidence available on record.

Learned counsel appearing on behalf of the petitioner submits that the findings recorded by the Courts below are primarily founded upon the voter list, which was never duly proved in accordance with law. It is contended that mere exhibition of a document does not dispense with the requirement of proving its contents and authenticity, particularly when the original document was not produced before the Court. It is further submitted that the document relied upon by respondent No.1 was only a photocopy and no foundation was laid for leading secondary evidence. Therefore, the Courts below could not have treated the said photocopy as substantive evidence merely on the ground that the election record had been summoned. Learned counsel for the petitioner submits that the deficiency in evidence could not have been supplied by the Court itself. It is argued that summoning of the election record by the Court did not absolve respondent No.1 of his obligation to prove the document relied upon by him in accordance with law. According to learned counsel, the Courts below have, in effect, treated production of the record as proof of the contents of the document, which approach is legally unsustainable.

Learned counsel next submits that, even assuming that four votes had been cast twice, there is no evidence on record to establish that the double votes were cast in favour of the petitioner. It is pointed out that both the petitioner and respondent No.1 had secured 302 votes each and that the petitioner was declared elected only on the basis of draw of lots. In such circumstances, according to learned counsel, unless it was established that the alleged double-polling votes had in fact been cast in favour of the returned candidate, the election of the petitioner could not have been set rd aside merely on the basis of alleged duplication of votes. It is contended that the possibility of the alleged double votes having been cast in favour of respondent No.1 could not be ruled out. Learned counsel submits that where the margin between the returned candidate and the election petitioner was Nil and the election was decided by draw of lots, the question as to which candidate benefited from the alleged irregular votes assumes particular significance. According to him, in the absence of any evidence connecting the alleged double voting with the petitioner, the statutory consequence of setting aside his election could not have followed.

Learned counsel also submits that no objection with regard to the alleged double voting was raised by respondent No.1 either at the time of polling or at the time of counting. It is argued that the absence of any contemporaneous objection is a material circumstance which ought to have been taken into consideration while appreciating the subsequent allegation of double polling. It is further submitted that the procedure prescribed under the Haryana Panchayati Raj election rules was also not duly considered by the learned Courts below. According to learned counsel, respondent No.1 was required to establish the alleged irregularity in accordance with law. It is submitted that although ordinarily this Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not sit as an appellate Court over findings of fact recorded by a competent statutory authority, interference would nevertheless be warranted where such findings are based upon inadmissible or legally insufficient evidence, or where material aspects having a direct bearing upon the validity of the election have not been duly considered. Learned counsel for the petitioner submits that the impugned orders cannot, therefore, be sustained in law and deserve to be set aside, with the election of the petitioner being restored.

Per contra, learned counsel appearing on behalf of respondent No.1 submits that no interference is warranted with the concurrent findings recorded by the learned Courts below. It is contended that the election petition was instituted under Section 176 of the Haryana Panchayati Raj Act, 1994, and respondent No.1, as election petitioner, discharged the burden of establishing that votes had been cast more than once in the election in question. Learned counsel submits that the objection regarding the voter list being a photocopy is wholly misconceived. It is pointed out that the voter entry register along with the list of voters who had cast their votes was specifically summoned by the learned trial Court from the Returning Officer pursuant to order dated 14.12.2022. The record was produced before the Court in a sealed cover on 01.03.2023, whereafter the sealed cover was opened in the presence of the Court and a photocopy of the record was prepared, while the original record was returned to the concerned Village Secretary. It is, therefore, submitted that the authenticity of the record could not reasonably be questioned merely because the original was retained by the election authorities.

Learned counsel for the respondent No.1 submits that, after examining the record, the learned trial Court found that four votes had been recorded more than once, namely, vote No. W-5, 78 appearing at serial Nos. 151 and 519; vote No. W-7, 112 appearing at serial Nos. 30 and 319; vote No. W-1, 100 appearing at serial Nos. 57 and 66; and vote No. W-2, 14 appearing at serial Nos. 255 and 369. It is argued that the finding is based upon the contents of the official record and not upon any oral assertion. It is further submitted that the argument that the alleged double-polling votes were not proved to have been cast in favour of the petitioner misses the legal issue involved. Learned counsel submits that the secret ballot system makes it impossible to ascertain in whose favour such votes were cast. The learned election tribunal itself recorded a categorical finding that nobody could know in whose favour the four votes had been cast and that no presumption could be drawn that the same were cast in favour of respondent No.1. Nevertheless, the tribunal correctly held that casting of a vote more than once renders the additional vote invalid and constitutes an electoral irregularity sufficient to invalidate the election.

Learned counsel for the respondent No.1 submits that the statutory scheme contained in Section 176(4)(aa)(iii) of the Haryana Panchayati Raj Act 1994, expressly contemplates setting aside of an election where the result, insofar as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote, reception of any vote which is void, or by non-compliance with or violation of the Act, rules or orders made thereunder. It is argued that the finding that four votes had been cast more than once brings the case within the statutory framework governing validity of an election. Learned counsel submits that the petitioner cannot derive any advantage from the fact that both candidates had secured 302 votes each and that the result was ultimately decided by draw of lots. The very fact that the election was decided on the basis of equality of votes makes the presence of four invalidly cast votes a material circumstance affecting the purity and validity of the electoral process. The question as to which candidate benefited from such votes is not required to be answered where the votes themselves are found to have been cast more than once. The election was set aside only after a specific finding with regard to four votes having been cast more than once.

Learned counsel lastly submits that the present petition essentially seeks re-appreciation of evidence and interference with concurrent findings of fact recorded by the learned trial Court and affirmed by the learned appellate Court. In the absence of any perversity, judicial error or manifest illegality, no interference in exercise of the extraordinary jurisdiction of this Court is called for.

On the strength of the aforesaid submissions, learned counsel for respondent No.1 submits that the present petition is devoid of merit and deserves to be dismissed and that the orders passed by the learned trial Court and the learned appellate Court, whereby the election of the petitioner was set aside and fresh elections were directed to be conducted, deserve to be upheld.

Learned State counsel has adopted the submissions made on behalf of respondent No.1 and prays that the impugned orders be upheld and the present petition be dismissed.

We have considered the submissions advanced by learned counsel for the parties and have perused the record, including the judgment passed by the learned trial Court and the order passed by the learned Appellate Court.

The principal contention raised on behalf of the petitioner is that the finding with regard to four votes having been cast more than once is founded upon Exhibit P-7, which, according to the petitioner, was only a photocopy and was not proved in accordance with law. The contention requires consideration in the factual context in which the said record came on the judicial file. The record reveals that, at the stage of presentation of the election petition itself, the learned trial Court summoned the relevant election record from the Returning Officer vide order dated 14.12.2022. The record was thereafter produced before the Court on 01.03.2023 in a sealed cover. The sealed cover was opened in the presence of the Court and a photocopy of the record was prepared and retained on the judicial file, whereas the original record was returned to the concerned Village Secretary/election authority having custody thereof. Thus, Exhibit P-7 was not a document privately procured or independently produced by the election petitioner. It was a copy prepared from the official election record which had been called for by the Court itself at the inception of the election proceedings and produced by the election authorities in pursuance of the Court’s order. The orders dated 14.12.2022 and 01.03.2023 duly record the manner in which the said record was summoned, produced, opened and dealt with by the Court. It is true that mere exhibition of a document does not, by itself, dispense with the requirement of proving its contents where proof thereof is otherwise required in law. Equally, the mere fact that a document has been summoned by the Court cannot, by itself, convert an otherwise inadmissible document into substantive evidence. The question, however, has to be examined having regard to the nature of the document, the manner in which it came on record, the source from which it was produced and the manner in which it was relied upon by the learned trial Court. In the present case, the document was an official election record produced from the custody of the election authorities pursuant to an order of the Court. The original was available before the Court when the sealed cover was opened, and the photocopy retained on the record was prepared from the said official record. The return of the original thereafter to the authority having its lawful custody cannot, in the facts of the present case, by itself render the copy incapable of consideration, particularly when the record itself had been summoned by the Court and its production and handling stand recorded in the judicial proceedings. More importantly, the finding of the learned trial Court was not founded upon any disputed assertion regarding the authenticity of a private document, nor upon a comparison of disputed signatures or thumb impressions. The Court examined the entries contained in the election record and found four instances in which the same voter number appeared against two different serial numbers. The instances noticed by the tribunal were vote No. W-5, 78 appearing at serial Nos. 151 and 519; vote No. W-7, 112 appearing at serial Nos. 30 and 319; vote No. W-1, 100 appearing at serial Nos. 57 and 66; and vote No. W-2, 14 appearing at serial Nos. 255 and 369. The learned tribunal had also noticed the objection regarding the absence or faintness of certain thumb impressions/signatures in the photocopy, but did not base the finding of double voting upon such discrepancies. The finding ultimately resulting in setting aside of the election was confined to the four instances in which the same voter numbers were found recorded at two different serial numbers. The distinction is material. It demonstrates that the learned trial Court did not proceed merely on conjectures arising from imperfections in the photocopy, but upon a specific scrutiny of the entries forming part of the official election record. In these circumstances, the objection that Exhibit P-7 was a photocopy and was not formally proved through a witness cannot, in the peculiar facts of the present case, by itself be sufficient to discard the record altogether. The learned trial Court was entitled to examine the official election record which had been summoned and produced before it in the manner noticed above, subject, of course, to the petitioner having an opportunity to contest its contents and evidentiary value during the proceedings.

The next contention of learned counsel for the petitioner is that, even if the four votes were found to have been cast twice, there was no evidence to establish that the additional votes had been cast in favour of the petitioner. This argument also cannot be accepted in view of the nature of an election conducted by secret ballot. The learned tribunal specifically recorded that it was impossible to ascertain in whose favour the four votes had been cast and that no presumption could be drawn that they had been cast in favour of the returned candidate. The fact that it could not be determined in whose favour the additional votes were cast does not render the double voting immaterial. A person cannot exercise the right to vote more than once in the same election. Once it is established from the official election record that the same vote had been cast twice, the additional vote is void and the integrity of the electoral process stands affected. The learned tribunal, therefore, rightly proceeded to examine the legal consequence of such double voting rather than requiring proof as to the particular candidate in whose favour such vote was ultimately cast.

The approach adopted by the learned Tribunal finds support from the decision of Division Bench of this Court in Gurdev Singh v. Presiding Officer and others, CWP No.29714 of 2019, decided on 10.05.2021, wherein it was held that double votes cast in a constituency are bogus and void in nature and that casting of double votes can constitute a ground for setting aside an election. The learned Tribunal also noticed the statutory scheme under Section 176 of the Haryana Panchayati Raj Act, 1994, under which an election may be set aside where its result, insofar as it concerns the returned candidate, has been materially affected by the improper reception or reception of a vote which is void, or by non-compliance with the provisions of the Act, Rules or orders made thereunder.

It is true that both the petitioner and respondent No.1 had secured 302 votes each and that the petitioner was declared elected on the basis of draw of lots. However, this circumstance does not advance the case of the petitioner once four votes are found to have been cast more than once. The statutory requirement is not that the election petitioner must demonstrate in whose favour every void vote was ultimately cast before an election can be invalidated. The relevant consideration is whether the election process and the result stood affected by the reception of votes which were void. The learned trial Court, upon a scrutiny of the official election record, found that four votes had been cast more than once and treated this as sufficient to vitiate the election.

The reliance placed by learned counsel for the petitioner upon the absence of any objection having been raised during polling or counting also does not persuade us to take a different view. The election was conducted through secret ballot and the alleged double voting was established from the voter record subsequently examined by the Election Tribunal. The absence of an objection at the polling station cannot confer validity upon a vote which is otherwise found, upon scrutiny of the official record, to have been cast twice. More particularly, the petitioner has not been able to demonstrate that any statutory provision makes a contemporaneous objection an indispensable pre-condition for challenging an election on the ground of reception of void votes under Section 176 of the Act.

Upon perusal of the impugned order it is also significant that the learned trial Court did not accept the other allegations raised by the election petitioner, including the allegations concerning Sunil Kumar, Arun Khanchi and alleged concealment in the nomination form. Those allegations were examined separately and were found not to have been established by cogent evidence. The election was ultimately set aside only on account of the four instances of double voting. Thus, the conclusion of the learned trial Court cannot be characterised as one founded upon a general or sweeping allegation of electoral malpractice. The trial Court examined the official election record and identified four specific instances of the same vote number having been recorded at two different serial numbers. Having reached that factual conclusion, it applied the law relating to void/improper votes and held that the election was liable to be set aside. The learned Appellate Court, upon consideration of the matter, affirmed the said conclusion.

Thus, we find no perversity in the aforesaid factual finding, nor has any material circumstance been brought to our notice which would warrant interference with the concurrent findings recorded by the Courts below. The submission that the petitioner should be given the benefit of uncertainty as to the candidate in whose favour the additional votes were cast cannot be accepted, particularly when the uncertainty itself is a consequence of the secret-ballot system and cannot convert an otherwise void vote into a valid one.

At the same time, the learned trial Court was correct in not declaring the election petitioner (respondent no.1) as the returned candidate. Once the election was conducted by secret ballot, and it was not possible to ascertain in whose favour the four additional votes had been cast, there was no basis for presuming that the respondent no.1 had secured the requisite majority. The trial Court rightly distinguished between the question of invalidating the election and the question of declaring the respondent no.1 elected.

Section 178 of the Haryana Panchayati Raj Act, 1994 further provides that where the election of any member is set aside under Section 176, a fresh election for the vacancy so caused is required to be held in accordance with law. Consequently, the direction for holding a fresh election, instead of declaring either of the two candidates elected, was also legally justified.

For the foregoing reasons, we find that the learned trial Court appreciated the material evidence in its proper perspective and correctly applied the statutory provisions governing the validity of an election. The learned appellate Court committed no error in affirming the said finding. The challenge raised by the petitioner essentially seeks re-appreciation of evidence without demonstrating any perversity, judicial error or patent illegality in the concurrent findings recorded by the Courts below.

The contention raised on behalf of the petitioner, therefore, fails. The finding that four votes had been cast more than once, coupled with the legal consequence attached thereto, furnishes a sufficient basis for setting aside the election. The impugned orders dated 10.11.2023 and 12.03.2024, therefore, do not call for interference in exercise of the jurisdiction of this Court under Article 226 of the Constitution of India.

The present petition is, accordingly, dismissed. The impugned orders are upheld. There shall, however, be no order as to costs.