# Seema Sachan v. Ajeet Singh Pal & Ors

- **Citation:** (2021) 3 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-18
- **Case number:** Election Petition No. 01 of 2018
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/seema-sachan-v-ajeet-singh-pal-ors-46911
- **Pages:** 46

## Headnote

(A) Civil Law - Election - Representation of
People's
Act
1951
-
Section
33-
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
517
Presentation of nomination paper and
requirements for a valid nomination ,
Section
38
-
Publishing
of
list
of
contesting candidates, Section 61-Special
procedure for preventing personation of
electors , Sections 64 - Counting of votes ,
Sections 66 - Declaration of results ,
Conduct of Election Rules, 1961 - Rule
49-A - Design of Electronic Voting Machine
, Rules 49-S, 55-C, 56-C, 56-D and 66-A -
Indian Evidence Act, 1872 - Section 101,
102 and 103 - burden of proof lies on the
election petitioner to prove its case to the
hilt just like a criminal case - it is not an
ordinary
proceedings
as
election
proceedings are statutory proceedings -
every
ground
has
to
be
pleaded
specifically in the plaint on the basis of
which the relief is being sought to be
claimed. (Para -73,89)

Election Petition filed by Petitioner seeking
election of respondent no. 1/returned candidate
as member of legislative assembly to be declared
as void and also get herself declared successful in
his place - election of the returned candidate
assailed - grounds - non-compliance by the
Returning Officer of mandatory provision of
Sections 64 and 66 of the Act and Rules 49-S,
55-C, 56-C, 56-D and 66-A of the Rules of 1961 -
improper reception of votes of Electronic Voting
Machines, seals of which were found tampered
with and broken at the time of counting -
presiding officer did not give true copy of the
entries made in Form 17-C .(Para - 2,4)

HELD: - Petitioner failed to prove the issue
related to tampering of EVM, the said issued is
decided in negative holding that seals of EVMs
were not found tampered with or broken. It was
bounden duty of the petitioner's counsel to
plead in the pleadings that the said Form 17C
was never prepared by the Presiding Officer
because of which copy of the same was not
provided
to
the
polling
agent.
Merely
mentioning that copy of Form 17C was not
given to the polling agent would not suffice to
conclude that copy of the same was never
prepared. Neither there appears to be any
specific pleading on record in that regard nor
clear evidence has come on record in this
regard, therefore, it is apparent that only on the
basis of presumption, the violation of Section 66
and 64 and Rules 49S, 55C, 56C, 56D and 66-A
cannot be held proved. This issue is decided
accordingly against the petitioner. (Para -
49,80,89)

Election Petition dismissed. (E-6)

List of Cases cited: -

## Text

_Characters 0–39,924 of 163,158. This is a partial read: ask again with offset=39924 for what follows._

516 INDIAN LAW REPORTS ALLAHABAD SERIES
as Act, 1910, the Court finds that there is
no provision in Act, 1910 similar to the
provisions contained in Section 61 of Delhi
Excise Act. Accordingly, ratio laid down in
State (NCT of Delhi) Vs. Narender (supra)
is confined to matters arising out of the
Delhi Excise Act. As such, aforesaid
judgement is distinguishable and the ratio
laid down therein cannot be applied ipso
facto for deciding release application in
respect of seized vehicles regarding which
confiscation proceedings are pending in
terms of Section 72 of Act, 1910. As such,
concerned Magistrate, as well as revisional
court erred in law in rejecting the release
application/ revision filed by applicant
seeking release of seized vehicle by relying
upon aforesaid judgement.

24. In view of law laid down by Apex
Court as well as this Court as noted herein
above, Magistrate as well as Revisional
Court ought to have decided the issue
regarding
their
own
jurisdiction
for
releasing seized vehicle in exercise of
powers under the Code in respect of vehicle
which has been seized and confiscation
proceedings in respect of which are
pending
consideration
before
District
Magistrate under Section 72 of Act, 1910.
However,
the
said
issue
remains
unanswered by both the courts below.

25. As courts below have proceeded to
refuse release of seized vehicle of applicant
by placing reliance upon judgement of
Apex Court in State (NCT of Delhi) Vs.
Narender (supra) without decideing their
jurisdiction
to
entertain
the
release
application, filed by applicant seeking
release of seized vehicle in terms of section
457 of Code, the orders impugned in
present application cannot be sustained on
account
of
erroneous
reasoning
and
therefore, liable to be quashed.

26. Accordingly, present application
succeeds and is allowed. Impugned orders
dated 18.09.2020 passed by Additional Chief
Judicial Magistrate/Additional Civil Judge
(Sr. Div.) Court No.3, Aligarh in Case Crime
No. 338 of 2019 under Section 62, 63, 72
U.P. Excise Act, Police Station- Akbarabad,
District-Aligarh as well as order dated
31.10.2020 passed by Additional Sessions
Judge/POCSO Act, Court No.02, Aligarh in
Criminal Revision No. 136 of 2020 (Chandra
Pal Vs. State of U.P.) under Sections-396,
397 Cr.P.C. are hereby quashed. Matter is
remitted to concerned Magistrate to decide
release application of applicant afresh in the
light of observations made herein above
within a period of one month from the date of
production of a certified copy/ computer
generated copy of this order which shall be
filed by applicant before Court below by
means of an affidavit.
----------
(2021)03ILR A516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH-I, J.

Election Petition No. 01 of 2018

Seema Sachan ...Petitioner
Versus
Ajeet Singh Pal & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Bahadur Singh, Sri Jietendra Kumar, Sri
Prashant Rai, Smt. Seema Sachan (In Person)

Counsel for the Respondents:
Sri Prabhakar Tripathi, Sri Bharat Singh Pal, Sri
Neeraj Tripathi, Sri Shyam Sundar, Sri Bharat
Singh Pal

(A) Civil Law - Election - Representation of
People's
Act
1951
-
Section
33-
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
517
Presentation of nomination paper and
requirements for a valid nomination ,
Section
38
-
Publishing
of
list
of
contesting candidates, Section 61-Special
procedure for preventing personation of
electors , Sections 64 - Counting of votes ,
Sections 66 - Declaration of results ,
Conduct of Election Rules, 1961 - Rule
49-A - Design of Electronic Voting Machine
, Rules 49-S, 55-C, 56-C, 56-D and 66-A -
Indian Evidence Act, 1872 - Section 101,
102 and 103 - burden of proof lies on the
election petitioner to prove its case to the
hilt just like a criminal case - it is not an
ordinary
proceedings
as
election
proceedings are statutory proceedings -
every
ground
has
to
be
pleaded
specifically in the plaint on the basis of
which the relief is being sought to be
claimed. (Para -73,89)

Election Petition filed by Petitioner seeking
election of respondent no. 1/returned candidate
as member of legislative assembly to be declared
as void and also get herself declared successful in
his place - election of the returned candidate
assailed - grounds - non-compliance by the
Returning Officer of mandatory provision of
Sections 64 and 66 of the Act and Rules 49-S,
55-C, 56-C, 56-D and 66-A of the Rules of 1961 -
improper reception of votes of Electronic Voting
Machines, seals of which were found tampered
with and broken at the time of counting -
presiding officer did not give true copy of the
entries made in Form 17-C .(Para - 2,4)

HELD: - Petitioner failed to prove the issue
related to tampering of EVM, the said issued is
decided in negative holding that seals of EVMs
were not found tampered with or broken. It was
bounden duty of the petitioner's counsel to
plead in the pleadings that the said Form 17C
was never prepared by the Presiding Officer
because of which copy of the same was not
provided
to
the
polling
agent.
Merely
mentioning that copy of Form 17C was not
given to the polling agent would not suffice to
conclude that copy of the same was never
prepared. Neither there appears to be any
specific pleading on record in that regard nor
clear evidence has come on record in this
regard, therefore, it is apparent that only on the
basis of presumption, the violation of Section 66
and 64 and Rules 49S, 55C, 56C, 56D and 66-A
cannot be held proved. This issue is decided
accordingly against the petitioner. (Para -
49,80,89)

Election Petition dismissed. (E-6)

List of Cases cited: -

1. KT Kosalram Vs Dr. Santhosham & ors., AIR
1969, Madras 116

2. Sushil Kumar Vs Rakesh Kumar, (2003) 8 SCC
673

3. Virender Nath Gautam Vs Satpal Singh & ors.,
(2007) 3 SCC 617

4. Sushil Kumar Vs Rakesh Kumar, (2003) 8 SCC
673

5. Arabinda Dhali Vs Nimai Chandra Sarkar &
ors. , AIR 2008 (NOC) 2561 (ORI.)

6. S. Prasanna Kumar Vs Dr. Y. Nagappa & ors.,
IlR 2007 KAR 4491

7. R.M. Seshadri Vs G. Vasantha Pai, (1969) 1
SCC 27

8. Kalyan Kumar Gogoi Vs Ashutosh Agnihotri &
anr., AIR 2011 SCC 760

9. Uma Ballav Rath Vs Maheshwar Mohanty &
ors., AIR 1999 SC 1322

10. Kashi Nath (dead) through L.Rs. Vs
Jaganath, (2003) 8 SCC page 740

11. Gajanan Krishnaji Bapat & anr. Vs Dattaji
Raghobaji Meghe & ors., AIR 1995 SCW 3407

12. Mangani Lal Mandal Vs Bishnu Deo
Bhandari, AIR 2012 SC 1094

13. Akhtar Chooriwala Vs Smt. Pooja Pal, 2017
(2) ADJ 612

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri Vijay Bahadur Singh,
learned Sr. Advocate assisted by Sri
518 INDIAN LAW REPORTS ALLAHABAD SERIES
Jitendra Kumar, learned counsel for the
petitioner and Sri Bharat Singh Pal, learned
counsel for the Respondent No. 1.

2. This Election Petition has been
filed by Ms. Seema Sachan seeking
election of Ajeet Pal Singh, respondent no.
1/returned
candidate
as
member
of
legislative assembly from 207, Sinkandra
Legislative
Assembly
Constituency,
Kanpur Dehat, U.P. to be declared as void
and also get herself declared successful in
his place. Uttar Pradesh Vidhan Sabha, ByElection,
2017
of
207,
Sinkandra
Legislative Constituency, Kanpur Dehat
was notified on 27.11.2017 and the
schedule of election was as follows: (1)
Date of notification of election 27.11.2017;
(2) last date for filing of nomination paper
4.12.2017:
(3)
date
of
scrutiny
of
nomination paper 5.12.2017: (4) date of
withdrawal of candidature 7.12.2017: (5)
date of poll 21.12.2017: (6) date of
counting 24.12.2017: (7) date before which
election shall be completed 26.12.2017;
and (8) hours of poll 08:00 a.m. to 05:00
p.m.

3. The Election Commission of India,
in exercise of its power conferred under
Section 61-A of the Representation of
People's Act 1951 ( in short to be referred
hereafter as ''The Act' ) read with Rule 49A of the Conduct of Election Rules, 1961 (
in short to be referred hereafter as ''Rules of
1961') issued a direction on 14.12.2017 that
the current by- Election of State Legislative
Assembly
including
207,
Sikandara
Legislative Assembly, Kanpur Dehat, U.P.,
notified on 27.11.2017, shall be held as per
the schedule mentioned above in para 1 and
votes would be recorded by means of
Electronic Voting Machine (E.V.M.) and
Voters
Verifiable
Paper
Audit
Trail
(V.V.P.A.T.) printers under Rules of 1961
and Supplementary instructions issued
from time to time by the Election
Commission of India. The said direction
dated 14.12.2017 was published in Official
Gazette of the States including the State of
Uttar Pradesh.

4. As per the schedule, the candidates
filled up the nomination form in terms of
Section 33 of the Act. The present Election
Petitioner has also filled up her nomination
form as a candidate of Samajwadi Party
and was allotted a symbol of Cycle. The
returned candidate (respondent No. 1), Ajit
Singh Pal submitted his nomination form as
a candidate of Bhartiya Janata Party
(B.J.P.) and was allotted symbol of ''Kamal
Ka Phool' (lotus). Similarly the other
candidates who have been impleaded as
respondent nos. 2 to 10 are of different
parties and were also allotted other
symbols, details of which are mentioned in
para 4 of the petition. The Returning
Officer after scrutinizing all the nomination
papers of all the candidates of the
constituency, published a list of contesting
candidates in terms of Section 38 of the Act
whose names are given in tabular form in
para 5 of the Petition. The counting of
votes took place on 14.12.2017 and on the
same day, result was announced by the
Returning Officer wherein respondent no.
1-returned candidate was illegally declared
elected from the constituency in question.
The election of the returned candidate is
being assailed on the following grounds:
(a) the election of the respondent no. 2returned candidate has been materially
affected on account of non-compliance by
the
Returning
Officer
of
mandatory
provision of Sections 64 and 66 of the Act
and Rules 49-S, 55-C, 56-C, 56-D and 66A of the Rules of 1961, who has acted
against the said provisions; (b) The election
of returned candidate has been materially
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
519
affected on account of improper reception
of votes of Electronic Voting Machines,
seals of which were found tampered with
and broken at the time of counting; (c) the
election of the returned candidate has been
materially affected on account of the fact
that the presiding officer did not give true
copy of the entries made in Form 17-C
after obtaining receipts from the polling
agents at the closing of poll to the polling
agents of the Election Petition and other
candidates (this during the arguments was
argued to be the main ground on which the
learned counsel for the petitioner wanted
the election of the elected candidate to be
declared null and void and did not lay
much emphasis on other grounds which
were mentioned in the petition); (d) the
election of the returned candidate has been
materially affected on account of the fact
that there were two rooms in strong room
and on the date of counting, the election
petitioner and their representatives were
present at the counting premises on time
but one room out of two strong rooms was
opened by the Returning Officer in absence
of
the
election
petitioner
and
her
representatives without calling them to
remain present at the time of opening of the
strong room. After opening of one of the
strong rooms, an announcement was made
by the Returning officer asking the
candidates and representatives to come for
opening of the strong room and then only
the second room of the strong room was
opened in presence of the candidates and
their
representatives.
The
election
petitioner and her representatives were not
permitted to inspect the seals of one of the
strong rooms, where, the E.V.Ms. were also
kept and were brought for counting; (e) the
election of the returned candidate has been
materially affected on account of the fact
that Returning officer permitted only 14
counting agents to be appointed by the
petitioner and other candidates and she
(Returning officer) did not permit the
petitioner and other candidates to appoint
15th
counting
agent
for
central
table/Returning
officer's
table
during
counting. There was no access of the
election petitioner, her election agents and
her
counting
agents
to
the
central
table/Returning
officer's
table
during
counting. The computation and compilation
of data from each table, at the conclusion of
a round was done at the Returning officer's
table/central table, in absence of election
petitioner, her election agents and her
counting agents; (f) The Election of the
returned candidate has been materially
affected on account of the fact that seals of
E.V.Ms. were continuously being found
tampered with and broken from the very
first round of counting till completion of
counting. The complaints were made to the
Returning Officer by the counting agents of
the election petitioner. During counting,
complaints were made to the effect that the
seals of E.V.Ms. were found broken and
tampered with and that E.V.Ms. had been
manipulated in favour of the returned
candidate. However, the returned candidate
was adamant to ignore the complaints and
illegally kept counting continued. Even the
announcement of votes obtained by each
candidate in the counting from 10th to 17th
round of counting, were not announced. On
protest being made by the election
petitioner, her election agents and counting
agents, they were forcibly ousted from the
counting campus. During this period, the
seals of the EVMs were also found broken.
The election petitioner and her election and
counting agents were permitted in, only
from 18th round of counting onwards,
however, the seals of the E.V.Ms. were also
found broken and tampered with from the
18th round till the completion of 28th
round of counting which too was reported
520 INDIAN LAW REPORTS ALLAHABAD SERIES
by the counting agents of the election
petitioner to the Returning officer; (g) the
election of the returned candidate has been
materially affected on account of the fact
that after the completion of counting and
after entries made in the result-sheets, but
before signature of the Returning Officer
on the result-sheet, the election petitioner
made application in writing complaining
about the seals having been found tampered
with and seals being found broken of the
E.V.Ms. of the several polling booths
during counting, with the request to the
Returning officer to count the V.V.P.A.T.
print paper slips in drop box of the printer
in respect of 391 polling booths, but
Returning Officer illegally rejected the
application of the Election Petitioner
without examination in violation of the
direction of Election Commission of India
with a false recording that no complaints
were ever made by any agent during all
rounds of counting and that V.V.P.A.T.
print slips were counted of booth no. 135 of
table no. 4 in 11th round; (h) the election of
the returned candidate has been materially
affected on account of the fact that EVMs
were manipulated to benefit the returned
candidate and accordingly, the seals were
tampered with and broken. However in
spite of the fact that the Returning officer
illegally counted votes of tampered EVMs
of booth no. 135 of table no. 4 in 11th
round of counting, without recording
reasons in writing, to conceal manipulation
and benefit given to the returned candidaterespondent no.1; (i) the election of the
returned candidate has been materially
affected on account of the fact that
provisions of Constitution, Act and Rules
framed thereunder as well as the orders and
instructions issued under the Constitution
by the Election Commission of India have
not been complied with in counting of
votes.

5. Further it is submitted that concise
statement of material facts regarding
grounds (a) to (i) is that there was improper
reception and counting of votes of E.V.Ms.,
seals of which were tampered with and
broken on the date and time of counting i.e.
on 24.12.2017 and also there was noncompliance of the mandatory provisions of
the Act and Rules stated above. Further it is
mentioned that on the date of polling i.e.
21.12.2017, the presiding officer did not
give true copies of Form No. 17-C to
polling agents containing the details of
counted votes on the end of counting.
There were total 391 polling booths and
true copy of account of votes in Form 17-C
was not given to any of the polling agents
of the election petitioner nor was it given to
any of the polling agents of any contesting
candidates of the said constituency. Further
it is mentioned that counting agents of the
Election Petitioner made complaint in
writing about the tampered seals to the
Returning officer in different rounds. The
election
petitioners'
counting
agent,
Mahendra made written complaint of
broken seals of EVMs of booth no. 1
(counting table no. 1), counting agent, Ram
Naresh made complaint of broken seals of
EVMs of booth no. 126 (counting table no.
8), counting-agent, Anoop Kumar made
complaint of broken seals of EVMs of
booth no. 16 (counting table no. 2),
counting agent, Arvind Kumar made
complaint of broken seals of EVMs of
booth no. 254 (counting table no. 5) etc.
Further it is submitted that the Returning
officer did not make announcement of the
vote counted and obtained by different
candidate from 10th round to 17th round of
counting. The election petitioner, her
election agents and counting agents made
protest
with
respect
to
this
non
announcement and then they were forcibly
ousted from counting premises by the
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
521
Returning officer during the period of
counting from 10th round to 17th round.
The seals of the EVMs were being
continuously found tampered with and
broken from 10th round to 17th round.
Announcement of the counting of votes
resumed from the 18th round of counting
and then only the election petitioner and
her election and counting agents were
permitted to enter counting premises and
participate
in
counting.
The
other
contesting candidates and their election and
counting agents were also continuously
making complaints of non announcement
of votes. They were also forcibly ousted
from the counting premises during the 10th
to 17th round of counting. However, the
returned candidate, respondent no. 1's
agents remained present during the said
round of counting from 10th to 17th round.
Further it is submitted that seals of EVMs
(control unit) were again continuously
found tampered with and broken from 18th
round till the completion of 28th round of
counting. The election petitioner's counting
agent, Arvind Kumar made a complaint in
writing of broken seals of EVMs of booth
no. 254 at table no. 5 in 28th round of
counting. Further it is mentioned that after
completion of 28th round of counting and
after entries had been made in the result
sheet but before the signature of Returning
officer on final result sheet, Form No. 20,
the election petitioner immediately made
application in writing to the Returning
officer to count the VVPAT printed paper
slips and drop-box printer with respect to
the EVMs of all polling stations from booth
nos. 1 to 391 on account of tampering and
broken seals of several EVMs found at the
time of counting as well as announcement
of the votes obtained by the candidates.
From 10th round to 17th round, the protest
were made by election petitioner and her
agents but they were forcibly ousted from
the
counting
premises.
The
election
petitioner also made an application in
writing to the District Election Officer,
Kanpur Dehat/Chief Election Officer, Uttar
Pradesh that the announcement of counting
were not made from 10th round to 17th
round and on protest being made, they were
forcibly ousted from the counting premises
and that the seals of the E.V.Ms. were
found tampered with and broken at the time
of counting. The Returning Officer duly
received election petitioner's complaint
addressed to the District Election Officer,
Kanpur Dehat/Chief Election Officer, Uttar
Pradesh on their behalf, before signing the
sheet but she did not examine the request
for re-counting of printed paper slips, made
by the petitioner which was required to be
done as per the direction of the Election
Commission of India and rejected her
request
recording
that
counting
was
completed in presence of the agents and
that no agent had made any complaint in
any round of counting and that there was
no reason for V.V.P.A.T. paper slips to be
counted. The Returning officer, however,
has recorded that the VVPAT printed slips
were counted of booth no. 135 in the
eleventh round of counting on doubt being
raised, in which, result of the control unit
and the VVPAT were found equal. The
Returning Officer had passed this order on
the complaints made by the election
petitioner to the Returning officer as well
as the District Election Officer, Kanpur
Dehat/Chief Election Officer. Further it is
mentioned that the Returning officer
recorded a false and vague reason for
rejecting
the
petitioner's
request
for
recounting of VVPAT slips because the
counting agents of the election petitioner
had
made
continuous
and
repeated
complaints of tampering and seal being
found broken of the EVMs from the very
first round till the completion of 28th round
522 INDIAN LAW REPORTS ALLAHABAD SERIES
of counting. The Returning officer was
under statutory obligation to re-count the
VVPAT slips of EVMs of all polling
booths on the application of the Election
Petitioner when the seals of EVMs were
found tampered and broken on several
booths on different tables in different
rounds of counting. Election petitioner had
minor difference of votes from the winning
candidate in different round of counting
which was only due to manipulation and
counting of votes of tampered EVMs.
Further it is mentioned that the Returning
Officer,
Deepali
Kaushik,
S.D.M.,
Sikandara,
Kanpur
Dehat
deliberately
favoured the returned candidate who
belonged
to
ruling
party
(BJP)
by
manipulating the EVMs and getting the
counting conducted in a manner so that it
would benefit the returned candidate. The
petitioner has secured 61455 votes while
the returned candidate has secured 73325
votes, therefore the result stands vitiated
due to illegal manipulation of EVMs and
counting of votes and non-compliance of
mandatory provision of Act and Rules and
directions issued by Election Commission
from time to time regarding counting. The
election of the returned candidate has been
materially affected by the facts narrated
above, which has breached the purity of
election. Certified copy of the Form No.-20
''final result-sheet' [Rule 56-C (2)] of
Vidhan
Sabha
By-Election
of
2007,
Sikandara,
Kanpur
Dehat
has
been
appended as Schedule-1. The Election
Petitioner has obtained majority of valid
votes higher than the returned candidate
which would be clear on re-counting of
VVPAT slips. The Election Petitioner has
also deposited requisite amount of Rs.
2,000/- in the treasury towards security of
the Election Petitioner and the receipt of
depositing of the said amount, is annexed
with the Election Petition.

6. From the side of returned
candidate, Written Statement has been filed
refuting the allegations made in the
petition, averring therein that without
having concise statement of material facts
regarding corrupt practice, on which the
petitioner relies, this Election Petition has
been filed and also the petitioner has failed
to provide any documentary evidence of
the persons involved in alleged corrupt
practice and as such, Election Petition is
not maintainable under the provision of
Section 83 of the Act which has been
reproduced in para 3 of the WrittenStatement. Further it is submitted that all
the allegations made in the petition are
against the Returning Officer appointed for
the constituency in question but Returning
Officer has not been arrayed as respondent
and as such Election Petition is not
maintainable as mandatory provisions of
Section 82 of the Act has been breached.
The said provision has been quoted in para
5 of the Written Statement. Further it is
mentioned that in KT Kosalram Vs. Dr.
Santhosham and Others AIR 1969,
Madras 116 (High Court has specifically
held that whenever there are allegations of
bad faith, misconduct and propriety and not
merely illegality against the Returning
Officer in an Election Petition, the
Returning Officer is a proper party, though
not necessary party. In proper cases, the
Returning Officer may be a proper party to
the Election Petition, even though Section
82 of the Act does not make him a
necessary party. Section 90 of the Act
enables the Tribunal to implead the
Returning Officer as a party as per the Civil
Procedure Code which are expressly made
applicable to the trial of Election Petition
subject to the provisions contained in the
Act and the Rules made thereunder. Further
it is mentioned that petitioner has not
enclosed any documentary material with
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
523
the Election Petition in support of her
allegations made with regard to corrupt
practice, from opening of the strong room
up to the declaration of final result, hence
the petition deserves to be dismissed abinitio. Petitioner has lost the election with a
margin of 11870 votes and was never
satisfied with the result and somehow
wanted to raise hurdles in smooth working
of the returned candidate. Grounds to seek
election to be declared void are solely
based on alleged misconduct, illegality and
impropriety on the part of the Returning
Officer and not against the returned
candidate. Allegations are only to the
extent of tampering of EVMs and about
their seals being found broken but not with
regard to machines itself or manipulations
regarding data released by the machines.
The Election Petitioner was supposed to
produce all documents in her possession
upon which she relies, to fortify her claim,
but in the present case, the Election
Petitioner has failed to do so which was in
violation of mandatory provision of Order
7, Rule 14 C.P.C. It is further mentioned
that Election Petitioner has sworn her
petition relating to paragraph nos. 9, 10, 13,
19, 22 and 29 as "derived from the record
and from information received from my
supporters, election agents and other
persons" but she has neither disclosed the
specific particulars about her sources nor
has she produced any document in support
of other pleadings. Election Petition is
defective one because para 20 of the
petition could not be sworn by petitioner
and further non-existing para 29 has been
sworn
by
Election
Petitioner.
Entire
petition does not contain any ground as
provided under the Act for getting the
Election
set-aside,
of
the
returned
candidate/respondent no. 1. Pleadings are
totally bereft of the material facts and do
not amount to stating any ground for
getting the Election set-aside, of returned
candidate. Pleadings as they stand, do not
disclose the cause of action for the trial,
therefore, Election Petition is liable to be
dismissed under provisions of Order 7 Rule
11 of CPC read with Section 81 of the Act.
The petitioner has referred to a number of
documents which form basis of the
allegations but copies of none of them has
been filed nor supplied to the answering
respondent,
therefore,
there
is
noncompliance of Section 81 (3) of the Act,
hence Petition is liable to be dismissed.

7. With respect to the averments of
the Para 7 of the Petition, it is submitted
that the contents of the said para are
erroneous, hence denied. All the allegations
of misconduct, illegality and impropriety
on the part of the Returning Officer for
getting the election result of winning
candidate to be declared void, are bogus
and non existing, because neither the
returned candidate nor his agents or other
contesting candidates or their agents had
made any complaint during entire counting
proceedings which had been witnessed by
them all. Contents of para 8 of the Petition
are also stated to be erroneous and denied
and it is submitted with respect to that
opening of both the rooms in the strong
room had been witnessed by all the
contesting candidates and their agents and
none of them had made any complaint in
this regard before Returning Officer or any
authority concerned.

8. With respect to para 9 of the
petition which relates to the averment that
Presiding Officers did not give true copy of
the entries made of the count of votes
recorded in Form-17-C to the polling
agents and the Election Petitioner present,
at the close of poll at all polling booths, is
stated to be erroneous and has been denied.
524 INDIAN LAW REPORTS ALLAHABAD SERIES
Regarding this, it was much emphasised by
the learned counsel for the petitioner that
such kind of cryptic denial would amount
to admission of the contents of the said
paragraph as there is no specific denial that
the copies of Form-17-C were not provided
to the polling agents of the Election
Petitioner as per the mandatory provision
of law and it was also stated by him that
non providing of copies of Form-17-C
would also mean that the same was not
prepared
at
all
by
the
presiding
officers/concerned authority which would
render the election void. Reliance was also
placed by learned counsel for the petitioner
upon Sushil Kumar Vs. Rakesh Kumar
2003 (8) SCC 673 in which it was held that
an evasive denial would amount to
admission of allegations made in the
statements and no evidence contrary thereto
or
inconsistent
therewith
would
be
permissible.

9. With regard to averments in para
10 of the Petition, it is submitted that the
same are erroneous and hence denied.
Petitioner never provided true/certified
copy of the complaint allegedly made by
her counting agents i.e. Mahendra, Ram
Naresh, Anoop Kumar and Arvind Kumar
before the High Court.

10. With respect to contents of Para
11 of the petition, the same are stated to be
erroneous and hence denied and it is further
stated that agents of the petitioner were
never absent from the counting proceedings
as alleged that they were ousted forcibly
after the conclusion of 17th round of
counting. The same is absolutely false.

11. With regard to averments in para 12
of the Petition, it is stated to be erroneous and
hence denied and it is further submitted in
this regard that from the statement of
petitioner herself all her counting agents
again appeared in the counting proceedings
prior to the starting of 18th round of counting.

12. With regard to contents of para 13
of the Petition, the same are denied as
erroneous and further submitted that none of
the contesting candidates or their agents came
forward with any complaint about broken
seals of EVMs nor the petitioner provided
true/certified copies of the complaint made
by Arvind Kumar as claimed.

13. Contents of para 14 which contains
the details of lapses in counting, are stated to
be erroneous and, hence denied.

14. Contents of para 15 which relates to
Returning Officer having duly received the
Election Petitioner's complaint addressed to
her, District Election Officer and Chief
Election Commissioner, U.P., has been stated
to be erroneous and hence denied.

15. With regard to contents of para 16
of the Petition which is related to non
examination of request of recounting of
VVPAT printed paper slips, the same is said
to be erroneous and denied and it is further
submitted that the allegation of tampered and
broken seals of EVMs were found false by
the Returning Officer as admitted by the
petitioner herself and, therefore, there was no
occasion to count the VVPAT printed paper
slips of the Drop Box of EVMs concerned.
Further it is submitted that petitioner never
produced
true/certified
copy
of
the
application and its rejection by the Returning
Officer.

16. Contents of para 11 (it appears to
be wrongly mentioned as 11 as it appears to
be para 17 because para 11 has already
been dealt with) are stated to be erroneous
and denied which too relates to the
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
525
Returning Officer having recorded the false
and
vague
reason
for
rejecting
the
petitioner's request for recounting of
VVPAT slips.

17. The contents of para 18 of the
petition which is related to the counting of
VVPAT slips and because of the allegation
of the EVMs found tampered with, by
which it was said that Returning Officer
was under statutory obligation to recount
the VVPAT slips, the same is stated to be
erroneous and hence denied and it is
submitted that the Returning Officer could
not be compelled to count the VVPAT
printed paper slips under undue influence
on the basis of bald allegations only to
scandalize the election proceedings with
ulterior motive. Further it is submitted that
the petitioner has contested the election,
who is an MLA of outgoing ruling party
having lost mass support because of
previous misdeeds and anarchy and,
therefore there was little probability of her
to win and the returned candidate has been
made victorious by huge margin of 11870
votes.

18. Allegation with respect to para 20
relating to Returning Officer having
favoured the Returned Candidate, has been
stated to be erroneous and, hence denied.

19. Averments made in para 21 of the
Petition which is wrongly mentioned as
para 11, which pertains to vitiation of
election due to illegal manipulation of
EVMs and non compliance of mandatory
provisions of Act and Rules and the benefit
being given by the Returning Officer to
returned candidate are denied and it is
stated that retuned candidate has good
record of public service and his credibility
and reputation is well established in the
area.

20. The averments of para 22 of the
Petition relating to the claim of the
petitioner of having obtained valid votes of
majority, is also stated to be erroneous and
denied and further submitted that there was
a wave in favour of BJP in whole country
including U.P. and the petitioner has
contested from Samajwadi Party who had
lost his credibility due to misdeeds and
anarchy, therefore, it is mentioned that in
the interest of justice, the Election Petition
of petitioner deserves to be dismissed to
meet the ends of justice.

21. On the basis of pleadings of
respective parties, the Court has framed
following
issues
vide
order
dated
26.04.2019 which are as follows:-

"(i) Whether E.V.M. machines are
found tampered with and their seals broken
of the booths as alleged in para 10 of the
plaint?

(ii) Whether provisions of Section 64
and 66 of Representation of People's Act,
1951 and Rule 49-S, 55-C, 56-C, 56-D and
66-A of Conduct of Election Rule 1961
have been violated. If yes, its effect?

(iii) To what relief, if any, plaintiff is
entitled?

(iv) Whether Election Petition is not
maintainable due to being bereft of
material fact as stated in para 16 of the
Written Statement?"

22. In order to prove the claim in the
Petition, from the side of petitioner,
following documentary evidence has been
presented which are Paper No. A-17/1, A18/1, A-19/1, A-20/1, A-21/1, A-22/1, A23/1,
A-24/1,
which
are
copies
of
complaints moved from the side of Election
Petitioner and her agents during the
election proceedings. In oral evidence, the
petitioner has examined herself as P.W. 1,
526 INDIAN LAW REPORTS ALLAHABAD SERIES
Anoop Kumar as P.W.2, Arvind Kumar as
P.W. 3, Shamshul Kamar as P.W. 4,
Virendra Kumar as P.W. 5, Siddhartha
Katiyar as P.W. 6 and Md. Imran as P.W.
7, thereafter the evidence of petitioner was
closed and opportunity was given to the
respondent.

23. From the side of respondent,
Deepali
Bhargawa
(Kaushik),
SDM,
Bhognipur, Kanpur Dehat who was the
then Returning Officer of the constituency
in question has been examined as D.W.-1.

23.A The arguments were heard of the
learned counsel for both the parties and
perused the record.

24. Finding on Issue No. 1:-

This issue relates to the fact as to
whether EVMs are found tampered with
and their seals broken of the booths as
alleged in para 10 of the complaint. The
said para contains the fact that seals of
EVMs (control unit) were found tampered
with and broken right from the beginning
of the counting which remained continued
till the completion of last round of
counting. Counting agents of the Election
Petitioner had made complaints in respect
of the EVMs' seals having been found
broken and tampered with during the
counting, continuously and repeatedly to
the Returning Officer.

25. Counting agents of the election
petition made complaint in writing of the
tampered seals to the Returning Officer in
different rounds, the petitioner's counting
agent, Mahendra made written complaint of
broken seals of EVMs of booth no. 1
(counting table no. 1), counting agent, Ram
Naresh made complaint of broken seals of
EVMs of Booth No. 126 (counting table
no. 8), counting-agent, Anoop Kumar made
complaint of broken seals of EVMs of
Booth No. 16 (counting table no. 2) and
counting-agent,
Arvind
Kumar
made
complaint of broken seals of EVMs of
Booth No. 254 (counting table no. 5) etc.

26. From the side of respondent, the
said allegation has been denied and it is
submitted that the petitioner never provided
true/certified copy of the said complaints
allegedly made by her counting agents,
Mahendra, Ram Naresh, Anoop Kumar and
Arvind Kumar.

27. In order to prove this issue, from
the side of petitioner, she herself has been
examined besides the two complainants i.e.
Ram Kumar as P.W.2 and Arvind Kumar
as P.W. 3. besides that some other
witnesses who have been named above,
therefore, an assessment has to be made
about truthfulness of the allegations on the
basis of evidence which has been adduced
from the side of petitioner mentioned
above.

28. The petitioner herself has repeated
the same version in her examination-inchief as mentioned in election petition and
in cross-examination, she has stated that the
name of the election agent appointed by her
was Virendra Sharma. The election was
held on 21.2.20217. She cannot tell the
number of polling agents appointed by her.
On the basis of conjecture, she stated that
approximately 300 polling agents might
have been appointed by her. On the date of
voting, she was out side of the Mandi
Samiti. She cannot tell as to how many
polling booths, she had visited on the date
of polling. On the date of polling, her
agents were on the round. There were in all
three blocks, out of which, on one block
she herself was present and on the
3 All. Seema Sachan Vs. Ajeet Singh Pal & Ors.
527
remaining two blocks, her agents were
present. The name of the said three blocks
are Sikandra, Derapur, the name of third
block she does not recollect. When she was
on the round, she met polling agents. A
question was put to her as to whether any
polling agent had disclosed to her about
any EVMs to be defective, to which, she
answered that she was on the round and she
herself had seen that there was tampering in
the EVMs. She has also stated that the
people who were there, had said that these
peoples were going who would get the
EVMs changed. She had not made any
complaint either orally or written. When
she had reached the polling booth,
regarding mischief, nothing was disclosed
to her by her polling agents but regarding
it, public had told her. She did not stay at
the said polling booth for long so as to see
whether EVMs had been changed or not.
The counting was held on 24.12.2017. She
had appointed 14 counting agents. The
counting was held in Akbarpur Mandi
Samiti.