Dismissed

The Returning Officer, 17-PARBHANI Parliamentary Constituency, Parbhani, Dist. Parbhani and Other v. Alamgir Mohammad Khan

Bombay HC26 Sept 2019EPAP/48/2019

Case brief

AI extract

What is this about?

The High Court of Bombay (Aurangabad Bench) rejected applications filed by Returning Officers to remove EVMs from secure rooms for use in assembly elections. The court held that existing EVMs were sufficient for assembly polls, allegations of tampering did not outweigh the availability of spare machines, and the Election Commission did not demonstrate an absolute necessity to remove specific dispu

What did the court decide?

The applications seeking permission to remove EVMs from strong rooms for use in assembly elections were rejected.

The Returning Officer, 17-PARBHANI Parliamentary Constituency… — Election Law | Bombay HC (2019)

¶1

(Order) (1) EPAP Nos. 045 & 048 of 2019

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶3

Application in EP No. 045 of 2019 (In Election Petition No. 010 of 2019)

¶4

District : Latur

¶5

The Returning Officer,
41-Latur Parliamentary Constituency,
Latur, Dist. Latur
 & 02 others. .. Applicants.
versus
Ramrao Narsing Garkar,
Age : 59 years,
Occupation : Retired,
R/o. at post Gour,
Taluka Nilanga,
Dist. Latur
 & 09 others... Non-applicants.
...........

¶6

Mr. Alok M. Sharma, Advocate, for the applicants.

¶7

Mr. N.V. Gaware, Advocate, holding for Mr. G.K. Sontakke and Mrs. P.G. Sontakke, Advocates, for non-applicant no.01.

¶8

...........

¶9

And

¶10

Application in EP No. 048 of 2019

¶11

(In Election Petition No. 009 of 2019)

¶12

District : Latur

¶13

The Returning Officer,
17-Parbhani Parliamentary Constituency,
Parbhani, Dist. Parbhani
 & 02 others. .. Applicants.

¶14

(Order) (2) EPAP Nos. 045 & 048 of 2019

¶15

versus
Alamgir Mohd. Khan,
Age : 38 years,
Occupation : Business,
R/o. House no. 16-4-85-F,
Chanchalguda, Hyderabad
500 024 (Telangana State)
 & 16 others... Non-applicants.

¶16

...........

¶17

Mr. Alok M. Sharma, Advocate, for the applicants.

¶18

Mr. N.V. Gaware, Advocate, holding for Mr. G.K. Sontakke and Mrs. P.G. Sontakke, Advocates, for non-applicant no.01.

¶19

...........

¶20

CORAM : SMT. VIBHA KANKANWADI, J.

¶21

DATE : 26TH SEPTEMBER 2019

¶22

ORDER :

¶23

01. These applications have been filed by the Returning Officer, District Election Officer and on behalf of Chief Election Commission of India, who are the respective respondents in both the Election Petitions, with a request to permit them to use the Electronic Voting Machines [For short, hereinafter referred to as "EVMs"] .

¶24

02.The applicants are contending that as per
Section 82 of the Representation of the People Act,
1951, parties to the petition are prescribed.
Further, Section 83 of the said Act prescribes for
the contents of the petition. Section 84 of the Act

¶25

(Order) (3) EPAP Nos. 045 & 048 of 2019

¶26

provides that a petitioner may, in addition to
claiming a declaration that the election of the
returned candidates is void, claim a further
declaration that he himself or any other candidate
has been duly elected. Section 86 of the Act deals
with the trial of election petitions. It is
therefore stated, that taking into consideration
various provisions of the Act, the applicants are not
necessary party to the election petitions. There are
no allegations against the malfunction of EVMs. So
also, the Apex Court has held that even if
functioning of EVMs are being challenged, the
Election Commission and Returning Officer are not
necessary parties. It is then claimed by the
applicants, that the State Assembly Elections may be
held in October-November 2019. Therefore, the
Election Commission is required to keep those EVMs in
working position which they have now kept in strong
room and on that count, they went to remove the EVMs
from the strong room and use them in coming assembly
elections.

¶27

03.The applications have been opposed by filing
affidavit in reply by both the original petitioners.
They have contended that the applications have been
filed by suppressing facts; the prayers in the
applications are vague; the reason is false,
imaginary and baseless. The petitioners are
challenging the elections of returned candidates

¶28

(Order) (4) EPAP Nos. 045 & 048 of 2019

¶29

mainly on the point that the total number of votes
polled and the declaration that was given by
Returning Officer are at variance. The difference,
it is stated, is on account of tampering of EVMs. It
can be revealed only after full fledged trial. The
said EVMs are primary evidence and therefore, the
said evidence cannot be allowed to be destroyed. It
is stated, that the Election Commission has made
contrary statement to the statement that has been
made in the applications, that they have kept EVMs
ready for the coming elections. They have stated
that as per "FLC OK" machine status as on 19th
September 2019 shows that total number of ballot
units is 1,80,289 and controlling units is 1,26,107
with 1,29,527 VVPAT. The said data with regard to
the EVMs to be installed in 36 districts of State of
Maharashtra has been provided. It is therefore,
submitted that there is absolutely no necessity to
allow the applicants to remove the EVMs from strong
room and use them in the assembly elections.

¶30

04.Heard learned Advocate Mr. A.M. Sharma
appearing for the applicants. So also, heard Mr.
N.V. Gaware h/f. learned Advocate Mr. G.K. Sontakke
appearing for non-applicants no.01 - original
petitioners.

¶31

05.Learned Advocate for the applicants in his
written notes of arguments, which have been submitted

¶32

(Order) (5) EPAP Nos. 045 & 048 of 2019

¶33

in addition to his oral submissions, has given the entire procedure during election process as to how the machines / VVPAT are used; they function; what is the process of sealing EVMs before actual voting, especially after the mock poll is held for testing; then sealing of strong room in presence of contesting candidates / their agents; how voting is done on the machines; what precautions they take on the counting day, etc. He submitted that contents of the petition, if considered would show that the petitioners have not taken into consideration "None of the above" (hereinafter referred to as "NOTA") . If those votes are considered, then there would be any hardly difference which might have occurred due to manual incorporation of the data in the chart. There is absolutely no scope for tampering in the EVMs those have been used in the elections those were held for respective Parliamentary Constituencies. Though there is no order of protecting those EVMs passed in these cases, yet, the applicants have preserved the EVMs in the strong room; but since state assembly elections have been declared, those machines are required.

¶34

06.Per contra, learned Advocate appearing for
non-applicants no.01 - original petitioners,
submitted that the data collected by the petitioners
and which has been produced along with the affidavit
in reply would show that there are sufficient
machines available with the Election Commission.

¶35

(Order) (6) EPAP Nos. 045 & 048 of 2019

¶36

Further, there is absolutely no reason as to why the same machines, the Election Commission wants to use in this assembly elections when other machines are available. The petitioners have challenged the election on one of the ground, that there was tampering with the machines and under such circumstance, the data is required to be preserved. The said electronic evidence is in fact, primary evidence and therefore, till the adjudication is made, those machines are required to be preserved in the same state. He tried to rely on the decision by Kerala High Court in K.M. Karim Vs. V.K. Shanavas & others [OP(C) No.1644 of 2016 (O)] decided on 27th July 2016, wherein the Kerala High Court reversed the rejection of application for summoning EVMs before the Court and then proceeded to direct the District Election Officer, in whose custody the EVMs were kept, to produce the same and help the Court to decode the data available in those EVMs.

¶37

07.The limited question that is required to be
considered in these applications is as to whether
case is made out by the applicants to allow them to
remove the EVMs from the strong room and allow them
to use it in the coming assembly elections. It is to
be noted that the applications have not been happily
worded. The Election Commission has not given the
data in respect of how many EVMs they have with them
and why these EVMs which are subject matter of the

¶38

(Order) (7) EPAP Nos. 045 & 048 of 2019

¶39

present election petitions, only are required for the
coming assembly elections. When query was put to the
learned Advocate for the applicants, he submitted
that the exact data of EVMs is not available with
him; however elections can be held in absence of
these EVMs also. If this is the position, then
straightway the applications deserve to be rejected.
The applicants ought to have come with a case that
they cannot hold assembly elections without these
machines or there is in fact, shortage of EVMs with
them. Note can be taken that at present, the State
Assembly Elections have been scheduled only in
Maharashtra as well as Haryana. When Election
Commission can hold elections by using EVMs
throughout the country, then note will have to be
taken that they are having sufficient machines with
them. The data which has been tried to be produced
on record in affidavit in reply by the petitioners,
at this stage, cannot be considered for the simple
reason that it is not explained from where that data
has been obtained by them.

¶40

08.Another fact is also required to be taken
into consideration, that what is the challenge in the
present petitions. Though at this stage, we cannot
go into the merits and whether NOTA can be
considered, or not, yet, the contents of the
petitions would show that they are making allegations
regarding tampering with the machines. Learned

¶41

(Order) (8) EPAP Nos. 045 & 048 of 2019

¶42

Advocate appearing for the applicants has strongly
stated that such tampering cannot be done. Since the
petitioners have made that allegation, then
definitely the burden would be on the petitioners to
prove that there was tampering. But when they make
that allegations, definitely, the evidence is
required to be preserved as in the state it is. I am
in agreement with the observation by Kerala High
Court, that EVMs are "electronic record" as
contemplated under the Evidence Act. Taking into
consideration the contents of the applications, even
a query was put to the learned Advocate for the
applicants, that whether it is possible for the
applicants to collect the data from the machines, in
presence of a court commissioner and then allow the
Election Commission to use those machines. It was
also asked that, by keeping the existing data as it
is, in the machines, whether they can be put to use.
The answer to the said query was that, for using
those machines, data will have to be removed and
transfer of that data in any other device may not be
possible. Therefore, when the petition is based on
the data in the machines and also the fact that when
the Election Commission has ample EVMs with it, by
use of which the State Assembly Elections can be
smoothly held, there is absolutely no necessity to
remove the EVMs in this case from the strong room and
allowing them to be used by the applicants.

¶43

(Order) (9) EPAP Nos. 045 & 048 of 2019

¶44

09.Hence, there is no merit in the applications
and therefore, they are rejected.

¶45

( Smt. Vibha Kankanwadi )
JUDGE

¶46

...........

¶47

puranik / EPAP45.19etc

The Returning Officer, 17-PARBHANI Parliamentary Constituency, Parbhani, Dist. Parbhani and Other v. Alamgir Mohammad Khan

Case brief

What is this about?

What did the court decide?

The Returning Officer, 17-PARBHANI Parliamentary Constituency, Parbhani, Dist. Parbhani and Other v. Alamgir Mohammad Khan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bajaj Allianz General Insurance Co. Ltd. Thr Its Branch Manager, Aurangabad Vs Vivek Govindlal Sharma and Anr.

Kalpana Rajendra Kothari and Ors. Vs Santosh Arvind Jangam and Anr.

M/S Shriram Insurance Company Ltd, Sitapura Jaipur Vs Vanita Dhanaji Marekar and Ors.

Kawera Vasanta Vhadgir and Others Vs Pilli Naga Munendra Rao Yedurondalu and Others

M/S. Shriram General Insurance Co. Ltd. Thr the Branch Manager Vs Chandrakala Atmaram Mohite and Ors.

Sugaranabai Rajaram Dongare Vs Union of India Thr the G.M. Central Railway, Cst, Mumbai