Delhi High Court Bar Association v. Rajiv Khosla

1. The challenge in the present petition is to the order dated 31st May, 2019 passed by the ld. Trial Court in an application under Order XXXIX Rules 1 & 2 CPC wherein the Trial Court granted an interim order in the following terms: “… Arguments heard and gone through the record. In view of the submissions made, plaintiff has a prima facie case in his favour, and if the documents are destroyed or tampered with, it would cause irreparable loss to the plaintiff. Further balance of convenience is also in favour of the plaintiff and none of the defendants are going to be adversely affected by the present order. In the circumstances, defendants no.1 Delhi High Court Bar Association, defendant no.2 Election Commission, defendant no.3 Registrar General, Delhi High Court and defendant no.12 Registrar, Delhi University are hereby directed to preserve the entire election record in their respective custody till further orders of this Court, including EVM, polling slips, electoral slips, unused and used polling slips and videography of the entry of the polling area and exit of the polling area beside other videography. Application accordingly disposed off.”

2. The background of the present petition is that the Respondent No.1/Plaintiff – Mr. Rajiv Khosla (hereinafter, ‘Plaintiff‟) filed a suit challenging the elections held to the Executive Committee of the Delhi High Court Bar Association (hereinafter „DHCBA’) on 17th May, 2019. The said suit raises various allegations, which are being considered in the pending proceedings before the ld. Trial Court. For the purpose of conducting the elections, Delhi University had provided Electronic Voting Machines (hereinafter „EVMs‟) for which charges were borne by the DHCBA. The Plaintiff had moved an application under Order XXXIX Rules 1 & 2 CPC in the said suit seeking preservation of the documentary evidence in the form of videography, EVMs, polling slips, electoral slips, etc. The above order came to be passed in the said application.

3. Subsequent to the above order, the Delhi University filed an application before the ld. Trial Court seeking release of the EVMs on the ground that the elections to the Delhi University Students Union (hereinafter „DUSU‟) are scheduled for 12th September, 2019 and the EVMs are required for the purposes of conducting the DUSU elections. In the said application, the Court issued notice and the matter was listed on 3rd September, 2019. Considering the proximity of the elections, the DHCBA has filed the present petition seeking permission for release of the EVMs to Delhi University.

4. On 2nd September, 2019, the present petition was listed before this Court and an intimation was given to the Plaintiff and other Respondents for appearance on 3rd September, 2019. On 3rd September, 2019, after hearing parties, the following order was passed:

2. The petition was listed yesterday and the Petitioner was directed to intimate the Respondent no.1 of the filing of present petition.

3. Mr. Rajiv Khosla – Respondent No.1, who has appeared in person, has raised the following objections. a) That the Delhi High Court Bar Association has no locus standi to challenge the order dated 31st May, 2019 (hereinafter „impugned order‟). b) That the said challenge filed before this Court is highly belated. If they were aggrieved by the impugned order and the elections were scheduled for 12th September, 2019 in the Delhi University, they ought to have approached the Court earlier. c) That there are allegations of tampering and also the need for proper maintenance of all the records is required, in order to check the data for the purpose of adjudication of the suit including the number of Votes, numbers of persons who voted, votes polled by the various candidates, NOTA votes etc., all of which is maintained in the said EVMs. d) That the Delhi University has already moved an application before the Trial Court and notice has been issued in the said application and the ld. Trial Court is ceased of the matter today, hence, they should approach the Trial Court.

4. Mr. Sudhir Nandrajog, ld. Senior Counsel appearing on behalf of the Delhi University (DU), however, submits that the Delhi University is also seriously aggrieved by the order dated 31st May, 2019 since as per the said order, the Delhi University has been directed to maintain the EVMs and thus they cannot be put to use. The operative portion of the impugned order requires that the EVMs, polling slips, electoral slips, videography etc. has to be preserved/maintained. He further submits that during the period from May to August, 2019, the Delhi University administration was busy with the new admissions for the next academic year and so, at the earliest opportunity, they have moved the application before the Trial Court. This submission is disputed by Mr. Khosla.

5. Mr. J. P. Sengh, ld. Senior Counsel accepts notice on behalf of Election Committee, constituted to conduct the elections of Delhi High Court Bar Association (DHCBA), which were held on 17th May, 2019.

6. After hearing the parties, this Court is of the opinion that the elections in Delhi University are scheduled on 12th September, 2019 and the EVMs would be needed for the same. According to ld. Senior Counsel for the Delhi University, there are more than 52 colleges and 250 polling booths that have to be manned by the staff and the EVMs would be required for conducting of the said elections. On a query from the Court, the counsels have consulted the personnel of the Delhi University, who are present today, who submit that the EVMs are manufactured by Electronics Corporation of India Limited („ECIL‟), which is a government undertaking.

7. Under these circumstances, this Court is of the opinion that if the data, which is stored in the EVMs, can be copied with the help of technical experts and retained in electronic form then the purpose of both sides would be served. The same can be then filed before the Trial Court in either in the form of a Pen Drive or CD-ROM. Notice be issued to ECIL for appearing through counsel along with a technical expert. The technical expert of ECIL to also be prepared to inform the Court as to whether the data from the EVMs can be copied and preserved and if so, in what manner.

8. Mr. Khosla further submits that three EVMs can be preserved on a random basis in order for the verification to be done. Ld. Counsel for Delhi University has no objection for preserving three random EVMs.

9. Insofar as the retaining of three random EVMs is concerned, let the Plaintiff/his representatives, the representatives of the Election Committee which conducted the Delhi High Court Bar Association‟s elections, remain present in Delhi University where the EVMs are kept, for identification of three random EVMs today. Identification of three random EVMs be done in the Delhi University premises at 6:00 pm in the presence of officials of Delhi University today itself. After identification, the said three EVMs shall be preserved by the Registrar, Delhi University in safe custody until further orders of this Court.

10. Ld. counsel for the Delhi University as well as Petitioner shall serve the ECIL for appearance on the next date. List on 5th September, 2019 at top of board as the first item in the supplementary list.