Election Petition No. 16 of 2009. Case: Manohar Babarao Dhonde Vs Shankar Ganeshrao Dhondge. High Court of Bombay (India)
| Case Number | Election Petition No. 16 of 2009 |
| Counsel | For Petitioner: B. L. Sagar Killarikar, Adv and For Respondent: P. R. Katneshwarkar, Adv |
| Judges | Shrihari P. Davare, J. (Single Bench) |
| Issue | Representation of the People Act (43 of 1951) - Section 83(1) |
| Citation | AIR 2012 Bom 24 |
| Judgement Date | May 06, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
1. Heard learned counsel for the parties.
2. The petitioner has preferred the present petition challenging the election of respondent No. 1 - returned candidate from 88 Loha Assembly Constituency, wherein the polling was held on 13-10-2009 and the result was declared on 22-10-2009.
3. The petitioner claims to be the resident of Shewdi (Bajirao), Taluka Loha, District Nanded and contested the election in afore said 88 Loha Assembly Constituency as an official candidate of Shiv Sena party; whereas respondent No. 1 contested the election as an official candidate of National Congress Party; whereas one Pratap Patil Chikhalikar contested the said election as an independent candidate, besides the other candidates.
4. The petitioner assailed the said election, mainly on two grounds;
(i) tampering of EVM i.e. Electronic Voting Machine, amounting to corrupt practice, including the alleged booth capturing, thereby materially affecting the election of the Respondent, under Section 100(1)(b)(d)(ii) read with Section 123(8)(4) and Section 135A(1) and (e) respectively, of the Representation of People Act, 1951 (for the sake of brevity, herein after referred to as, "the Act");
(ii) improper reception of votes under Section 100(1)(b)(d)(ii)(iii) of the Act, allegedly amounting to corrupt practice and thereby materially affecting the said election.
5. Respondent No. 2 i.e. the Returning Officer, 88 Loha Assembly Constituency, Nanded preferred an application, below Exh. 10, to delete him from the array of the present petition, and after hearing learned counsel for the respective parties, the said application was allowed and name of respondent No. 2 was directed to be deleted from the array of the present petition by order dated 25-10-2010.
6. Respondent No. 1 i.e. returned candidate, namely Shankar Ganeshrao Dhondge presented an application below Exh.8 under the provisions of Order VII Rule 11 of the Code of Civil Procedure and thereby raised the objections that the election petition does not disclose the cause of action and also it does not disclose the material facts and particulars of the alleged corrupt practice, nor it disclosed the material facts and particulars of improper reception of votes. It is also contended that the election petition is flimsy, vague and ambiguous, and there is no pleading in the election petition that because of the alleged corrupt practice, the result of election, in so far as it concerned to the returned candidate, has been materially affected. Hence, it is urged that the election petition is liable to be rejected, in view of the provision of Order VII Rule 11(a)(d) of the Code of Civil Procedure.
7. The election petitioner filed affidavit in reply to the said application at Exh.11 and thereby opposed the said application vehemently and submitted that the election petition filed by the petitioner is perfectly maintainable and all the pleadings and grounds are sustainable in view of Section 83(1)(b) and (c) of the said Act r/w Order VII Rule 11(a) of the Code of Civil Procedure. It is also contended by the petitioner that there is no infirmity in the pleadings and the petition strictly complies with Sections 31, 83(1)(c) and 86 of the Act r/w Rule 94A of the Rules framed under the Act and Form 25 of the relevant Election Rules. It is further contended that the allegations regarding infirmities in the pleadings and the contentions raised in the afore said application Exh.8 are false, baseless and unsustainable in law, and therefore, consequently, submitted that the said application deserves to be rejected with costs.
8. Before adverting to the submissions advanced by the learned counsel for the parties in respect of the said application Exh.8, and reply thereto at Exh.11, it is necessary to consider the material pleadings in the election petition, and at the out set, the petitioner contends that while submitting the nomination form by respondent No. 1 Shankar Anna Dhondge on 25-9-2009, Shri Ashok Chavan, Chief Minister of Maharashtra State was present with him in the said rally, but unfortunately, a political worker of the then M.L.A. (independent) viz. Shri Pratap Patil Chikhalikar threw a shoe on the Chief Minister and the said incident was taken seriously by the Chief Minister as well as party workers of Congress-I party to defeat the then M.L.A. (independent) Shri Pratap Patil Chikhalikar, and hence, the entire campaigning of Congress-I party in 88 Loha Assembly Constituency for the year 2009 was concentrated against said Shri Pratap Patil Chikhalikar to defeat him, and therefore, it was made a prestige issue, and hence, respondent No. 1 preferred to avail corrupt practice for success in 88 Loha Assembly Constituency, such as, (1) Tampering of EVMs i.e. Electronic Voting Machines, including booth capturing and (2) improper reception of votes.
9 In para 10 of the petition, the EVM i.e. Electronic Voting Machine is described as devised and designed by Election Commission of India in collaboration with two Public Sector Undertakings, viz. Electronics Corporation of India Ltd., Hyderabad and Bharat Electronics Ltd., Bangalore and the EVMs are manufactured by the above two undertakings and same were first used in the year 1982 in Bye Election-II Assembly Constituency of State of Kerala.
10. In para No. 16 of the petition, the possible ways of tampering EVMs are enumerated as follows:
I) Tampering with the hardware chip or software by adding malicious code like Trojan Horse or Misconfiguration, can alter vote totals or favour a particular candidate, and swapping of chip/boards enable Trojans to favour a candidate;
II) Cables of two control units can be swapped to swap votes;
III) Hacking can take place during transportation, handling, polling station, storing places, repair, maintenance, etc.;
IV) Abusing the administrative access to the machine by election officials, might also allow individuals to vote multiple times.
11. It is submitted in para 21 of the petition that as per election programme, the date of withdrawal of the candidature/nomination form was 29-9-2009 and the list of final contesting candidates came to be published. It is stated in the petition that it transpired from the information furnished by the Returning Officer that 318 EVMs were brought to Nanded by vehicles MH26/B3369 and MH22/559 on 23-9-2009 and said 318 EVMs were stored at Tahsil office, District Nanded. It is contended by the petitioner that as per the information supplied and gathered by him from his sources, after allotment of symbols, ballot papers with name and symbol of the candidate were prepared on 6-10-2009 and EVMs were handled by the Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad, namely Shri C. Pullaiah at 88 Loha Assembly Constituency for updating ballot paper screen.
12. It is stated in para 22 of the petition that the process of insertion of ballot paper screen in EVM was done by said Shri Pullaiah, the sole authorized Agent/Engineer appointed by Electronics Corporation of India on 6/7-10-2009 by using laptop. It is also stated that in all 318 machines were to be updated by Shri Pullaiah at Loha, District Nanded and no private individual, except security guard and a hotel owner/attendant, namely Shri Nagnath Madhukar Dhonde (who provided tea and snacks) were permitted to enter the premises. It is also recited in para 22 of the petition that on inquiry, it further disclosed to the petitioner that Shri Pullaiah was updating the machine by connecting it with laptop by a cord and while taking tea and snacks from hotel owner/attendant Shri Nagnath Madhukar Dhonde, he disclosed to the petitioner that he was updating the software of EVMs to suit it for 88 Loha Assembly Constituency.
13. It is also stated in para 23 of the petition that on making further inquiry, it revealed that on 5-10-2009 at 10.30 p.m. Shri Rohan Shankarrao Sundge has seen Shri Shankar Anna Dondge respondent and Babasaheb Sheshrao Deshmukh (Election Agent) and Shri Pullaiah taking dinner together at Government Guest House, Nanded. Hence, on inquiry, Shri Rohan Sundge informed that though the elections were going on he was surprised to see the respondent Shri Shankar Anna Dhondge as well as Babasaheb Sheshrao Deshmukh at Government Guest House taking dinner with unknown person. Therefore, out of curiosity, he made inquiry with the available staff and he was informed that the unknown person is Shri C. Pullaiah, an Engineer appointed by Electronics Corporation of India Ltd., Hyderabad for maintenance and updating of EVMs. Moreover, Shri Rohan Shankar Sundge also informed that he had seen said Shri Pullaiah at Loha while distributing EVMs. It is also stated in said paragraph that the petitioner was informed by Shri Rohan Shankar Sundge that he saw respondent No. 1, namely Shankar Anna Dhondge, Mr. Deshmukh (election Agent of Respondent No. 1) entering in the premises of Government Guest House on 5-10-2009, but he was surprised to see the same, since the Code of Conduct was in operation and politicians in that period were prohibited from using Government Guest House, and hence, he preferred to follow them and made the inquiry, and upon inquiry he was informed that the discussion in respect of EVMs and software therein was under progress. Therefore, he preferred to observe the demonstration and future planning made by them and said Shri Pullaiah showed the demonstration thereof to respondent No. 1 Shri Shankar Anna Dhondge and his election agent Shri Deshmukh. Accordingly, it is submitted that respondent, namely Shri Shankar Anna Dhondge and his agent Shri Deshmukh hatched plan, in collusion with Shri Pullaiah and thereby transferred the votes cast by voters in favour of the petitioner to respondent No. 1 by using Trojan horse method/technology, which amounted to unfair means and corrupt practice, and hence, the election of respondent No. 1 deserves to be quashed...
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