Andhra HC (Pre-Telangana)
Dr. K. Laxman vs Nayini Narasimha Reddy on 18 January, 2008
Equivalent citations: AIR 2009 (NOC) 423 (A.P.)
JUDGMENT V.V.S. Rao, J.
1. This petition is filed under Sections 100(1) (d)(ii) and (iv), 101 and 123 of Representation of the People Act, 1951 (RP Act, for brevity) to call for the records relating to and connected with election held on 20.4.2004 for 206 Musheerabad Legislative Assembly Constituency, order inspection and scrutiny of the controlling unit and balloting unit of electronic Voting Machines used at polling station (PS) Nos. 91 and 82, order scrutiny and inspection of correlative statements in respect of electoral rolls in P.S. No. 82 and declare the petitioner duly elected as Member of A.P. Legislative Assembly after declaring election of first respondent as M.L.A., from the said constituency as illegal, null and void.
PLEADINGS
i) Case of Petitioner
2. General elections in the State of Andhra Pradesh for electing Members of Parliament and Legislative Assembly were held in March and April 2004. The last date for filing nominations was 31.3.2004 and nominations were to be scrutinized on 02.4.2004. The election/polling was on 20.4.2004. The petitioner contested election as nominee of Bharatiya Janata Party (BJP). First respondent filed his nomination on behalf of Telangana Rashtra Samithi (TRS), which was allotted the symbol of 'car'. Second respondent contested the as the candidate of Bahujan Samaj Party, third respondent contested as a candidate of Marxist Party of India (S.S.Srivatsava) and fourth respondent contested on behalf of Pyramid Party of India. Respondents 5 and 6 filed their nominations on behalf of Janara Party and Rashtriya Janata Dal respectively, whereas seventh respondent contested as a candidate of Majlis Bachao Tahreek. Respondents 8 to 10 were in the fray as independent candidates.
3. In General Elections 2004, Electronic Voting Machines (EVMs) were used in all the legislative assembly and parliamentary constituencies. In 206 Musheerabad Assembly Constituency, in all 206 EVMs were used. The Election Commission of India (ECI) issued manual of electronic voting machine containing instructions to polling staff and returning officers on the manner of commissioning EVMs and alignment of ballot paper on the face of EVM while preparing EVM for use. Before supplying the EVMs for use at polling stations, Returning Officer has to prepare them in the presence of candidate/agent. The Returning Officer is required to fix the date on which preparation of EVM is to be taken up by him at least one week before the date of polling and give notice in writing to each candidate or his election agent intimating the place, date and time of preparation of EVMs. While preparing the balloting unit of EVM, Returning Officer has to insert the ballot paper, masking candidate buttons which are not required to be used, set slide switch at appropriate position i.e., 1, 2, 3 or 4 as the case may be, according to number of such units which are to be used depending upon the number of candidates and sequence, in which they are to be used and seal the unit. If all these operations are not executed meticulously and systematically, there would be improper reception of votes. If the ballot paper is improperly placed with wrong alignment overlapping of symbols or without symbols corresponding with serial number or name of candidate, the votes would be registered wrongly. The Returning Officer did not issue any prior notice to petitioner or his agent notifying the date, time and place of preparation of EVMs and they were not prepared for use in the presence of petitioner or his agent. EVMs are not tested in the polling booths and mock polling was not conducted in P.S. No. 91 in the presence of petitioner or his agent. On 20.04.2004, the polling day, polling could not take place as per schedule at 7.00 am., on account of malfunctioning of EVMs. At P.S. No. 91, polling could commence at 7.45 am., on account of malfunctioning of EVM. On receiving information about non-functioning of EVMs in P.S. Nos. 90, 91, 94, 97, 38 and 47, the petitioner intimated to the Vice President of BJP, Hyderabad, by telephone, who is also election agent of the petitioner. He in turn faxed a letter at 9.14 a.m. to Chief Election Officer, Government of Andhra Pradesh, Hyderabad, request to arrange for rectification of EVMs at these polling stations. A copy of the letter was also faxed to returning officer. No steps Were however taken and consequent upon non-functioning of voting machines in some booths polling was delayed by 30 minutes to one hour twenty minutes. The Vice-President of BJP once again faxed letter to Chief Election Officer at 10.08 am stating that due to non-functioning of EVMs in booth Nos. 90, 91, 94, 97 and 48, there was delay in commencement of polling by 45 minutes, 45 minutes, one hour twenty minutes, one hour and 30 minutes respectively. It was also brought to notice of Chief Election Officer that in booth No. 38 lights to the EVMs are not functioning. Because of this voters were compelled to exercise their franchise in those booths where EVMs were not functioning properly.
4. In P.S. No. 82 polling staff committed grave illegality in permitting persons whose names have been deleted from voters list, to exercise their franchise. During the last hour of polling i.e., after 4.00 pm, polling staff from P.S. No. 82 in collusion with polling agents of first respondent permitted several persons whose names were deleted from voters lists to cast their votes in favour of first respondent. On receiving such information, petitioner rushed to P.S. No. 82 at 05.00 pm and stopped the polling. He made telephonic complaint to Returning Officer who allegedly sent Mr.Chandra Reddy, MRO/Assistant Returning Officer, Musheerabad, who allegedly went to polling station, and on verification found several persons whose names were deleted from voters list were permitted to exercise their franchise, and submitted a report. Petitioner has also listed out 40 deleted voters in the election petition. In addition to these persons, petitioner also came to know that several persons whose names were deleted from voters list were permitted to vote.
5. The counting was conducted on 11.5.2004. First respondent was declared elected with a majority of 240 votes. The number of votes secured by each candidate as per Form No. 21E - Return of Election; is as follows.
Sl. No. Name of the Candidate Party affiliation No. of votes polled
1. Aepuri Satyanarayana Bahujan Samaj Party 2740
2. Dr.K.Laxman Bharatiya Janata Party 53313
3. Karanakote Narender Marxist Communist Party 989
of India (S.S. Srivastsava)
4. Nayini Narasimha Reddy Telangana Rashtra Samiti 53553
5. K.Nirmala Pyramid Party of India 541
6. T.V.Pramod Reddy Janata Party 1222
7. P.Shobha Yadav Rashtriya Janata Dal 238
8. Habeeb Khan Majlis Bachao Tahreek1 621
9. Kuntumalla Narayana Swamy Independent 861
10. Nandiraju Srihari Rao Independent 243
11. Syed Maqdoom Daniyal Independent 447
6. In P.S. No. 91, as many as 511 votes were polled. Petitioner and first respondent received 'zero' votes in the said polling station. But respondents 2 and 3 secured 268 and 224 votes respectively. Respondents 4, 6, 9 and 10 secured single digit votes (3, 9, 2 and 5 respectively) whereas respondents 5, 7 and 8 secured 'zero' votes. Petitioner also contends that area where P.S. No. 91 is located is BJP strong hold area and petitioner could not have secured 'zero' votes there. Several BJP sympathizers and party workers are registered as voters in the said polling station and more than 300 persons exercised their franchise in favour of petitioner in P.S. No. 91. However due to malfunctioning of EVM, there was improper reception of votes. Votes polled in his favour were shown in favour of other candidate(s) on account of technical error in preparation of EVM or its malfunctioning. Petitioner therefore submitted a representation to the Returning Officer, Musheerabad - which was received by the latter making endorsement thereon - requesting to conduct repoll in P.S. No. 91, as the result was a sham and EVM was defective due to which though 511 votes were polled, 'zero' votes were shown to main contestants. Petitioner also insisted that Returning Officer shall not declare the result. Petitioner informed Vice-President, BJP, who faxed a letter to Chief Election Officer with a copy to Chief Election Commission, requesting to withhold announcement of result in respect of Musheerabad Assembly Constituency. Returning Officer passed order dated 11.5.2004 rejecting the representation of petitioner. In the said order, it is alleged that at the time of poll on 20.4.2004 there was no objection from any of the contestants including petitioner and that ECIL Technical Officer certified EVM to be in proper condition. Petitioner alleges that the order passed by the Returning Officer is illegal and that there was no such certification by ECIL Officer. While mentioning the names of 23 voters from the electoral list for P.S. No. 91, petitioner alleges that all those persons and several others cast their vote in favour of petitioner and that there was no means by which petitioner could have secured 'zero' votes in P.S. No. 91. The EVM was malfunctioning resulting in improper reception of votes polled. Malfunctioning of EVM could have been the result of improper preparation of EVM for use by the Returning Officer contrary to the instructions contained in the manual and there is every likelihood that there has been improper alignment of the ballot paper. As the ballot paper was not placed properly in the space provided for the purpose of alignment, each candidate's name and his symbol were in line with corresponding candidate's lamp and button, there was misalignment creating confusion. As a result several votes actually polled in favour of petitioner appear to have been shown as polled in favour of another candidate. It is also possible that EVM was defective. Out of total 511 votes polled in P.S. No. 91, petitioner should have secured substantial number of votes, but on account of malfunctioning of EVM or improper preparation of EVM by the Returning Officer, petitioner was shown as having secured 'zero' votes. It is also alleged that there is every likelihood of tampering with controlling unit and balloting unit of P.S. No. 91. First respondent declared elected with small margin of 240 votes and hence improper reception of votes in P.S. No. 91 materially affected the result of returned candidate. Similarly reception of invalid votes in P.S. No. 82 and the corrupt practice adopted by the agents of elected candidate materially affected the result of the returned candidate.
ii) Case of Respondent No. 17. After service of notices respondents 1 and 11 appeared through counsel. Respondents 2, 3 and 9 were served but they did not appear. They were set ex parte. Notice to respondents 4 to 8 and 10 were served by substituted service by publishing notice in Eenadu telugu daily and Deccan Chronicle English daily on 03.11.2004. They were also set ex parte. Respondents 1 and 11 filed separate written statements.
8. Sri Nayani Narasimha Reddy, elected TRS candidate, filed written statement. The gist of various averments is as follows. The election petition is not maintainable and the petitioner has not made out any case under Sections 4, 100, 101 and 81 of RP Act. The election petition is liable to be dismissed for non-joinder of necessary parties, for not impleading all the contestants for the election to Musheerabad Legislative Assembly constituency. The election petition does not disclose any valid grounds for setting aside the election of first respondent. Petitioner contested election held in 1999 when EVMs were used and got elected as BJP candidate. Petitioner therefore cannot plead ignorance about the use of EVMs. He made allegations regarding conduct of poll and malfunctioning of EVMs for the first time in election petition. He has allowed the poll to continue and also counting. He made a representation for repoll in certain booths on the date of counting while there was a favourable trend for first respondent. Returning Officer conducted preparation of voting machines in accordance with the Rules as prescribed in the manual and handbook to the candidate. Agents of all the candidates appeared for the test preparation. Petitioner never gave any representation about non-preparation of EVMs at any point of time. The EVMs for all polling stations in Musheerabad constituency were prepared in compliance with the instructions of Election Commission in the presence of the candidates/agents and there was no objection raised by any candidate/agent including petitioner.
9. In the election notification issued by the Returning Officer, entire election programme was indicated including the date and hours of poll. Apart from it Returning Officer issued intimation letters to all the candidates from time to time informing about preparation of EVMs, counting etc. In special meetings, Presiding Officers/Assistant Presiding Officers were given practical training in mock poll. Returning Officer instructed all of them to conduct mock poll before commencement of actual poll on polling day. For this purpose political parties, agents of the candidates were asked to report at polling stations at 6.00 am. As per the instructions contained in the handbook for the Presiding Officers, every such officer is required to fill up declaration at the time of commencement of polling indicating that mock poll was conducted. All the Presiding Officers including one at P.S. No. 91 gave such declaration. If the mock poll was not conducted as alleged polling agents of contestants should have brought it to the notice of Presiding Officer and Returning Officer.
10. There was delay in commencement of poll due to problem in functioning of EVM. However no voter was left out from casting his vote at the end of the polling. The polling agents of the petitioner did not make any complaint to the polling officer or anybody concerned. Though allegations are made in respect of polling booth Nos. 90, 91, 94, 97, 38 and 47, petitioner restricted the allegations in the present petition to P.S. Nos. 82 and 91. Petitioner and his agents having allowed the poll to continue in all booths are estopped from alleging malfunctioning of EVMs in P.S. Nos. 82 and 91. In all polling stations before polling started, agents of the petitioner were present. Polling agents of the petitioner in P.S. Nos. 82 and 91 did not raise any objection. They also attested Form-17C without any protest and these copies were issued to all the agents of the candidates.
11. The allegation that forty voters whose names were deleted were allowed to vote in P.S. No. 82 in collusion with first respondent is denied as baseless and incorrect. In the electoral rolls supplied to the polling stations entries of voters whose names were deleted have been scored out with a line and as such there is no scope of allowing the voters to cast their deleted votes. Polling agents did not question nor object anybody to vote. It was not necessary for petitioner alone to rush to polling station to complain as the polling agents were required to raise their objections for any deleted vote being cast. As the polling agents of petitioner did not take any objection at the time of any deleted vote being cast, petitioner is estopped from making such an allegation in the election petition.
12. At P.S. No. 91 out of 511 votes polled, petitioner and first respondent got 'zero' votes. This itself however cannot amount to improper functioning of EVM. Voter of P.S. No. 91 decided not to vote in favour of main contesting candidates i.e., petitioner and first respondent. The scenario appears to be same because in the Lok Sabha election out of 511 votes polled, Congress candidate, Anjan Kumar Yadav, secured '16' votes and BJP candidate, Bandaru Dattatreya, secured '6' votes. There seems to be discontent about major political parties in the said area. For the sole reason that he did not get any vote in P.S. No. 91, petitioner is not entitled to raise objection now. The Technical Officer of ECIL inspected the EVM on objection raised by petitioner before result was announced and certified that the EVM used at P.S. No. 91 is in perfect condition. The Returning Officer invited the candidate/ agent to be present at the time of preparation of EVMs. EVMs were prepared in the presence of candidates/agents with due care following the guidelines. No objection was raised by any candidate/agent including petitioner. Therefore the contention of petitioner that he could not get any vote due to improper preparation of EVM is not correct. It is open to each and every contesting candidate to represent to Returning Officer to conduct enquiry when substantial irregularities committed, on the same day. The very purpose of giving time gap between date of poll and date of counting is to consider such irregularities and to conduct repoll. The counting took place 21 days after the date of polling. Petitioner never bothered to request Returning Officer to conduct repoll and raise such objection until he came to know that he is losing the election on counting day when the results were declared. The allegations of the petitioner are therefore mala fide.
iii) Case of Respondent No. 1113. The Additional Commissioner of Municipal Corporation of Hyderabad was the Returning Officer for Musheerabad Legislative Assembly Constituency. He filed separate written statement opposing the election petition. The allegations and averments therein are as follows. The petition does not disclose any valid grounds for setting aside the election of first respondent. The allegation that there is no guarantee that EVM would function properly and there is every likelihood of failure in function due to technical error or human error is baseless and the same is denied. EVMs were used during general elections conducted to Andhra Pradesh State Legislative Assembly in 1999, when petitioner contested and won the election. Petitioner is well acquainted with the procedural functioning of EVMs. Petitioner or his agents never expressed any doubt about functioning of EVM at any point of time during the entire process of poll. Petitioner raised objection only at the end of counting on 11.5.2004 when first respondent was about to be declared elected. The allegation that there is possibility of tampering with EVMs and that the votes would be registered wrongly if the ballot paper is placed with wrong alignment overlapping of symbols or without symbols corresponding that serial number or the name of the candidate is also quite wrong and baseless. EVMs were prepared in the presence of contesting candidates and their authorized agents on 13.4.2004 as required under law, duly giving advance intimation to all contesting candidates including petitioner. Petitioner was intimated about preparation of EVM on 08.4.2004. Size of the ballot paper affixed in the balloting unit is according to the exact size of the slit and as such there is no possibility of improper alignment or overlapping symbols allotted to the candidates. Petitioner and his agents were present at the time of preparation of EVMs on 13.4.2004 and no objection of any kind was raised either by petitioner or his authorized agent. There is foolproof method prescribed by the Election Commission of India to avoid such contingencies and respondent No. 11 followed the same in letter and spirit. In compliance with the requirement, all the Presiding Officers/Assistant Presiding Officers were given practical training to conduct mock poll and accordingly they conducted mock poll in all polling stations of 206 Musheerabad Assembly Constituency. No reports of non-conducting of mock poll on the poll day were received. Petitioner made such allegation for the first time in the election petition.
14. In order to ensure commencement of poll at the schedule time, Zonal Officers and Assistant Returning Officers were deputed by the Returning Officer to various polling stations. During their visit to P.S. Nos. 38, 47, 90, 91, 94 and 97, the officers found starting problem in the EVMs and such problems were sorted out immediately. Only in P.S. No. 49 an extra control unit was provided due to nonfunctioning of EVM control unit and poll was commenced. All the voters who came to respective polling stations were allowed to cast their votes. The allegation that no action was taken in this regard is not correct and petitioner is put to strict proof of the allegation that he made representation to Chief Election Officer. Respondent No. 11 did not receive any such representation on the polling day.
15. The allegation that deleted votes have been polled at P.S. No. 82 is absolutely false. There is no report of MRO as alleged and petitioner did not produce a copy of such report if any. The allegation that 40 voters whose names were deleted in voters list of P.S. No. 82 were allowed to vote in collusion with first respondent is baseless and incorrect. In the electoral roll used entries of voters whose names were deleted, have been scored out with a line and as such there is no scope of allowing deleted voters to cast their votes. There is no scope of collusion of Presiding Officer or other polling officer with any of the agent as there are agents of other contesting candidates, whose duty was to object to such illegal acts if any. If such was the case, it was for the polling agent of petitioner to lodge a complaint with the Presiding Officer concerned or to this respondent on the same day so as to take necessary action then and there. But no such complaint was made by petitioner or his polling agent. Petitioner is now coming up with this plea which is purely an after thought. The EVM functioned properly at the time of mock poll and actual polling. No complaint from anybody was received with regard to the same. Petitioner complained only at the fag end of the counting. Before announcing result, Returning Officer got EVM checked up with Technical staff of ECIL, who certified that EVM is in perfect condition. The allegation made in paragraph 10 is false and incorrect. EVM at P.S. No. 91 was functioning perfectly and votes were polled in accordance with the choice of the voters. The allegation of petitioner in paragraph 12 is not correct. The complaint alleged by petitioner on the counting day i.e., on 11.5.2004 was taken into consideration and action was taken in time to verify the functioning of EVM used in P.S. No. 21 by the Technical Officer, who has certified that the functioning of EVM is proper. After poll was conducted, there was no complaint and there was no recount of votes polled for any reason at any polling station including P.S. No. 91. The request of petitioner for conducting repoll in P.S. No. 91, after entire counting was over, was not proper and as such his representation was rejected by respondent No. 11. Petitioner made request for repoll 21 days after the date of polling and he never raised any objection before counting commenced.
16. An objection was raised at the fag end of the counting when result is about to be declared. There were no irregularities much less material irregularities in conducting polling and declaring election to 206 Musheerabad Legislative Assembly Constituency. ISSUES Based on the rival pleadings and petition averments, following issues (after recast) were settled for trial.
(i) Whether the Returning Officer of 206-Musheerabad Constituency has used properly functioning Electronic Voting Machines (EVMs) on the date of election in accordance with Election Manual published by Election Commission of India?
(ii) Whether the polling staff committed any illegalities or irregularities at polling station No. 82 with regard to EVMs and with regard to allowing voters not included in the voters list voting in the election?
(iii) Whether the polling staff committed any illegalities or irregularities at polling station No. 91 with regard to EVMs and with regard to allowing voters not included in the voters list voting in the election?
(iv) Whether the counting in relation to polling station No. 82 is vitiated by irregularities committed by polling staff and returning officer?
(v) Whether the election of the first respondent is vitiated by material irregularities as pleaded in the Election Petition?
(vi) Whether the EVMs used in polling station No. 91 did not receive the votes cast by the voters properly and whether there was an improper reception of votes in favour of respondent Nos. 2 and 3 as a result of which the petitioner hold 'NIL' votes?
(vii) To what relief?
17. During the trial, the petitioner examined himself as P.W.1. Along with the affidavit in lieu of chief examination filed under Order XVIII Rule 4 of CPC, the petitioner filed Exs.A.1 to A.11. In addition to this, petitioner also examined P.W.2 to P.W.26 including some of voters of P.S. No. 91 as well as the election agent and polling agents of P.S. Nos. 91 and 82. After the petitioner closed his evidence, first respondent examined himself as R.W.1 and marked Exs.B.1 to B.15. R.W.2 to R.W.4 were also examined on his behalf. Respondent No. 11 - Returning Officer; deposed as R.W.5, whereas the Technical Manager (Electrical, Manufacturing and Service Division - EMSD), ECIL, on Court summons was examined as C.W.1.
QUESTIONS
18. As seen from the issues framed for trial, issue Nos. (i), (iii) and (vi) deal with the allegation that there was improper refusal/rejection of votes due to non-functioning/malfunctioning of EVMs used in P.S. No. 91. Similarly, issue Nos. (ii) and (iv) are concerned with the allegation of petitioner that polling staff committed illegalities/irregularities at P.S. No. 82 in allowing persons not included in the voters list to vote, whether the alleged irregularities were committed by polling staff and returning officer at the time of counting in relation to P.S. No. 82 and whether such improper reception of votes at P.S. No. 82 has materially affected the result of the election of first respondent. Keeping these issues in mind, question whether the election of first respondent has been materially affected by improper reception of votes at P.S. No. 82 and improper refusal/rejection of votes at P.S. No. 91 can be considered separately.
IMPROPER RECEPTION OF VOTES AT P.S. No. 8219. This topic deals with question emanating from issue Nos. (ii) and (iv). The pleadings are contained in paragraph 8 of the petition. It is the allegation that in P.S. No. 82, polling staff committed grave illegality in permitting some persons including forty (40) persons named therein to exercise their franchise though their names have been deleted from the voters list. It is further pleaded that during last hour of polling i.e., after 4.00 p.m., the polling staff at P.S. No. 82 in collusion with polling agent of first respondent permitted several persons whose names are deleted from the voters list to cast their votes in favour of first respondent. The petitioner also alleged that after receiving information at 5.00 pm on polling day (20.04.2004), the petitioner made a telephonic complaint to R.W.5 and that MRO/ARO Sri Chandra Reddy enquired into same and submitted a report to Returning Officer to the effect that several persons whose names were deleted were allowed to vote.
20. There is no denial that burden is on the petitioner to prove that some persons including forty persons named in paragraph 8 of the petition voted at P.S. No. 82, though names of those persons were deleted from electoral roll for the said polling station and that there was a collusion between the polling staff and the polling agent of first respondent in allowing those deleted voters to cast their vote after 4.00 pm. Needless to mention that petitioner has to prove the allegation that on telephonic complaint made by petitioner, respondent No. 11 sent ARO who verified from voters' list and submitted a report to the effect that deleted voters were permitted to exercise their franchise. These matters may again be considered under different subheadings. a) Whether ARO verified and submitted report:
21. The first respondent in his written statement contended that the petitioner did not make any complaint to respondent No. 11 till 11.05.2004. In his written statement, respondent No. 11 - Returning Officer; denied the allegation that the ARO conducted verification and submitted a report to the effect that the deleted voters were allowed to exercise franchise. An averment is made by respondent No. 11 that the said allegation is false and that there is no report of ARO/MRO as alleged by petitioner. P.W.1 - the petitioner, in his chief examination, reiterated his stand in the pleadings alleging that polling staff in collusion with the Agent of first respondent permitted several deleted voters to vote, that he made a telephonic complaint and that he came to know that ARO conducted verification and submitted a report. He, therefore, admits that he made a telephonic complaint and no further details are coming forth. In cross-examination, he improved his version (departing from the pleadings) that his polling agent Srihari (P.W.3) orally complained to Presiding Officer about deleted voters.
22. P.W.3 is the polling agent of the petitioner at P.S. No. 82. He deposed in his chief examination that Sri Chandra Reddy, MRO, made enquiries and made a note of persons whose names were deleted and who are permitted to vote and prepared a report. This witness further improves stating that though he wanted to submit a written complaint as instructed by petitioner, ARO informed him that there was no need for written complaint as he was enquiring into the matter. In cross-examination, he admits that he did not give written complaint. He also further admitted that P.W.1 or himself never gave any complaint to Returning Officer, and that though he asked for a Xerox copy of the report, the same was not given to him.
23. P.W.25 is Assistant Presiding Officer. She deposed that she does not know whether P.W.1 gave a complaint to Returning Officer about the persons who are illegally permitted to vote. She also deposed that on the election day, no enquiry was conducted and that no complaint was given to her about the election. The evidence of P.W.1, P.W.3, P.W.25 and R.W.5 - Returning Officer; would show that P.W.1 did not give any written complaint. There is no necessity to discard evidence of R.W.5 who is in over all in-charge of election and if any enquiry had been ordered, it would have been only at his instance. When the Returning Officer himself deposed saying that there is no complaint and that there is no enquiry and no report, the version of P.Ws.1 and 3 cannot be believed. The allegation that ARO on an oral complaint of P.W.1 conducted enquiry and submitted report about deleted voters, therefore, far from truth.
b) Whether there was collusion between polling staff and first respondent:
24. The allegation of collusion between polling staff and first respondent in allowing the deleted voters to vote at P.S. No. 82 is sought to be proved by evidence of P.Ws.1 and 3. The chief examination of P.W.1 is reiteration of the petition averments. In cross-examination, he made crucial admissions. He deposed that, "my polling agent did not give any objection letter at P.S. No. 82 at the time of Presiding Officer giving Form No. 17(C).... My polling agent did not object when forty persons shown in election petition at paragraph 8 polled votes...." If there was as alleged - any collusion, the polling agent ought to have raised objection before the Presiding Officer when persons whose votes are deleted from the voters list were permitted to vote. The Conduct of Election Rules, 1961 as well as Election Manual give such a right to polling agent representing a contestant. When no objection was raised with regard to collusion/with regard to allowing deleted voters to vote, a wild allegation in the petition that there was collusion between the polling staff and first respondent has to be thrown out as being far from truth. Be it also noted that the petitioner herein is a seasoned politician and admittedly he contested the election three times and won once in 1999.
c) Whether names of some persons were deleted from the voters list of P.S. No. 82?
25. The gravaman of the allegation is that forty persons mentioned in paragraph 8 and some others were deleted from the voters list of P.S. No. 82 and that they were allowed to vote by the polling staff in collusion with first respondent. The collusion theory cannot be accepted as discussed hereinabove. The next question is whether these forty persons and Ors. were in fact deleted from the voters list of P.S. No. 82, and whether these deleted voters were permitted to vote? Ex.A.6 is the electoral list of P.S. No. 82. It has supplemental details regarding additions, details regarding deletions and summary of electors after summary revision 2004. This part of the electoral roll needs to be extracted.
Parts Summary of Electors Summary of Electors No, Name and Reservation Status : 206 Musheerabad Assembly Constituency General Part No. 82 A) Number of Electors Roll Type Roll Identification No of Electors Men Women Total I Original 0 1081 1081 Mother Roll Special Revision 2003 II Additions List 0 139 139 Supplement 1 Summary Revision 2004 Sub Total 0 139 139 III Deletions List 0 222 222 Supplement 1 Summary Revision 2004 Sub Total 0 222 222 Net Electors in the Roll after Summary Revision 2004 (I+II+III) 0 998 998 B) Number of Modifications Roll Type Roll Identification No.of Modifications Supplement 1 Summary Revision 2004 19 Sub Total 19
26. First respondent is R.W.1. Apart from denying allegation in the written statement, he stated in his chief examination that polling agents of any candidate including that of the petitioner did not object or question any vote? R.W.5 is the Returning Officer, who deposed that he is not aware of any incident of voting bar persons who are not included in the voters list. With regard to the alleged irregularities at P.S. No. 82, he was not cross-examined except asking him whether he received any telephone call from petitioner about irregularities, to which he replied that he received number of telephone calls on that day and he did not remember any such call from petitioner. He also denied the suggestion that he sent Assistant Returning Officer, or that he submitted a report. P.W.25 is an important witness. She was Assistant Presiding Officer at P.S. No. 82 on the day of the polling. She was summoned by petitioner himself. She was confronted with Ex.A.6, voters list and she recognized the same. She was specifically asked whether certain persons shown at different serial numbers in the voters list cast their vote. Her reply thereto is as below.
27. Ex.A.6 is the voters list of Polling Station No. 82. It contains original voters list as well as supplemental voters list. I cannot say which list was followed by me on the election day. I followed the list of voters which was given to me by the Presiding Officer. I do not remember the name of the Presiding Officer. Supplemental voters list in Ex.A.6 relates to the list of deleted voters or deletions. At Sl. No. 36 of supplemental list, the name of Smt.Goribee, W/o Mohd.Rasool is mentioned. At Sl. No. 49, the name of Smt.Bondamma, w/o Durgaiah is mentioned. At Sl. No. 50, the name of Smt.Padma, w/o Madhava Rao is mentioned. These persons did not vote on that day. The voters mentioned at Sl. Nos. 52, 53, 54, 58, 59, 70, 72, 75, 80 to 82, 85, 106, 172, 177, 178, 179, 182 to 185, 223, 228, 284, 285, 316, 317, 384, 405, 496, 601, 624, 625, 677, 867, 902 and 1031 (in all thirty seven (37) voters mentioned in the Supplemental List) also did not vote on that day. I do not know whether petitioner gave a complaint to Returning Officer about the persons who are permitted to vote on that day though their names were deleted. I do not remember that any enquiry was conducted. The witness again says that on that day no enquiry was conducted. It is not correct to suggest that on election day after 4'0 clock some of the persons, whose names were deleted from voters list, were permitted to vote as complained by the petitioner. It is not true to suggest that the Presiding Officer and the Assistant Presiding Officer of Polling Station No. 82 allowed number of persons to vote whose names were deleted, in collusion with respondent No. 1.
28. As seen from Ex.A.6 to which reference is already made above (supra), the entire voters list consisted of original voters list, the revision of voters list and the list of additions and deletions. The persons pointed out to P.W.25 and the persons mentioned in paragraph 8 of the election petition are the same. These names found included in the supplemental list of deletions of Ex.A.6. Therefore, one can believe the evidence of P.W.25, who says that all those persons mentioned in the list of deletions are not allowed to cast the vote. In view of this clinching evidence, the evidence of P.Ws.1, 2 and 3 cannot be given any credence for below noticed reasons more than one.
29. P.W.1 and P.W.2 were not present at P.S. No. 82. They only deposed that they went to P.S. No. 82 on information received that deleted voters were allowed to vote. They went to the polling station at 5.00 pm by which time P.W.3, the polling agent endorsed on Form 17-C prepared in accordance with Rule 49 of the Conduct of Elections Rules. Secondly, P.W.3 admittedly did not challenge any vote nor he raised any objection when some of alleged deleted voters were allegedly casting their votes. Thirdly, P.W.3 admits that at about 4.00 pm on election day, his reliever had come asking him to go for lunch, that as it was past lunch time, he went out for a cup of tea, that when he returned to polling station after fifteen minutes, he found Smt.Bala Vasantha, W/o K.L.Pandu at serial No. 583 of the voters list trying to cast vote, and that Presiding Officer sent her away. That is the only instance he gave. The pleadings on this are silent. P.W.1 and P.W.2 are silent on this aspect. Not even a suggestion was made to P.W.25, who was admittedly present from 6.00 am till 5.00 pm and beyond at the polling station. Lastly, it has been the case of petitioner that ARO came to the polling station, verified and submitted report. When petitioner summoned P.W.24, P.W.25, C.W.1 and P.W.5 to P.W.23, nothing precluded petitioner to summon Sri Chandra Reddy, ARO-cum-MRO. For reasons best known to him, petitioner did not do so. Therefore, allegation that polling staff at P.S. No. 82 in collusion with first respondent allowed the persons named in paragraph 8 of the petition and some other persons whose names were deleted from voters list to cast votes is not proved. Therefore, in the absence of any acceptable and unimpeachable evidence and proof, the allegation that the election of first respondent is vitiated by improper reception of valid votes cannot be accepted.
d) Whether counting in relation to P.S. No. 82 is vitiated by irregularities?
30. This relates to issue No. (iv). The elections for Musheerabad Assembly Constituency were held on 20.04.2004 and counting was held on 11.05.2004. The petitioner has not let in any evidence to prove this issue. On the contrary, he let in evidence only in relation to his allegation that the EVM used at P.S. No. 91 was not functioning properly and because of such improper functioning, it resulted in improper rejection of the votes polled in favour of petitioner. Therefore, the issue is decided against petitioner and in favour of first respondent.
31. Therefore, on issues (ii) and (iv), this Court holds against petitioner and in favour of first respondent. IMPROPER REJECTION OF VOTES AT P.S. No. 91
32. Issue Nos. (i), (iii) and (vi) need to be considered under this topic. The petitioner contested the election as nominee of BJP. He polled 53,313 votes whereas first respondent polled 53,553 votes and he was declared elected with a majority of 240 votes. In P.S. No. 91, petitioner as well as first respondent polled 'zero' votes. The petitioner alleges that P.S. No. 91 is a stronghold of BJP with large number of supporters and therefore, it is quite unimaginable for him to have polled 'zero' votes in P.S. No. 91. According to petitioner, use of improperly functioning and malfunctioning EVM in P.S. No. 91 resulted in improper rejection of votes. He further alleged that as many as twenty three persons listed in paragraph 11 of petition allegedly cast their vote in favour of petitioner.
33. The submissions of learned Counsel for petitioner on this aspect are as follows. The result of first respondent has been materially affected as per Section 100 (1)(d)(iii) of RP Act and that if the petitioner is able to show reasonable evidence, that voters' choice in P.S. No. 91 is not recorded properly and hence result of the returned candidate has been materially affected, the Court can draw an inference to that effect. He relies on S.N. Balakrishna v. Fernandez , Chhedi Ram v. Jhilmit Ram , Santosh Yadav v. Narender Singh and T.A.Ahammed Kabeer v. A.A.Azeez .
34. In substantiation of his submission that there was improper reception of votes at P.S. No. 91 and that votes polled in favour of petitioner were not properly recorded by EVM at P.S. No. 91, learned Counsel lays emphasis on the following. The EVM at P.S. No. 91 was initially malfunctioning and that the plea of rectification of EVM set up by the respondents has not been proved by them and that Ex.B.12, Certificate, cannot be given any importance as its author was not examined and nature of defect and how it was rectified is not mentioned. The record of complaints was not maintained and all the complaints and orders were received telephonically. He points out certain improbabilities in the voting pattern at P.S. No. 91 to submit that such events could not have been possible especially when the petitioner got elected in 1999 and the evidence of P.Ws.5 to 23 shows that they voted for the petitioner. Respondents 2 and 3 in the election petition who got single digit and double digit votes in other polling stations, got maximum number of votes in P.S. No. 91 which itself improbablise and therefore, it is urged that an inference has to be drawn that there was improper reception of votes by the EVM used at P.S. No. 91.
35. Learned Counsel for first respondent submits that in 1999 voting was conducted by use of EVM and therefore, there is no element of surprise to the petitioner. There is no possibility of improper alignment of ballot paper and balloting machine and the petitioner or his election agent or polling agent never gave any complaint during the polling or after polling at P.S. No. 91. All the candidates, election agents, polling agents and counting agents were given instructions to be vigilant at the time of preparation of EVMs, conduct of mock poll, ceiling of EVMs and breaking seals at the time of counting. The petitioner has not produced any evidence before this Court to show that at different stages in the use of EVM, there was any reason or cause to lead to an inference that there was improper reception of votes. The petitioner and first respondent polling 'zero' votes at P.S. No. 91 does not lead to any inference that the EVM functioned improperly and it would be a surmise and unproven assumption to allege that EVM at P.S. No. 91 is faulty. It is pointed out that the petitioner demanded for repoll on counting day, which is again contrary to Section 58(1)(aa) of RP Act. Lastly, learned Counsel submits that when petition rests on falsehood, the same is liable to be dismissed when there is no strict proof of election of returned candidate being affected materially. He placed reliance on Ram Autar v. Ram Gopal , Shiv Charan Singh v. Chandra Bhan Singh , Jeet Mohinder Singh v. Harminder Singh Jassi and Mahender Pratap v. Krishan Pal .
a) Whether the EVM at P.S. No. 91 was malfunctioning and whether it was rectified?
36. It is pleaded by petitioner that on the election day, though the voting was scheduled to commence at 7.00 a.m., at several booths, namely, P.S. Nos. 90, 91, 94, 97, 38 and 47, the voting did not commence due to nonfunctioning of EVMs. It is also admitted by petitioner that at P.S. No. 91 polling commenced at 7.45 am, presumably after rectification. P.W.1, P.W.2 and P.W.4 - the petitioner, his election agent and polling agent respectively; deposed on this aspect. P.W.1 did not give any complaint. P.W.2 sent a communication, Ex.A.2 to Chief Election Officer, Government of Andhra Pradesh, by facsimile at 9.14 a.m., followed by Ex.A.4 at 10.08 a.m, but, he admits in his cross-examination that he was not present at P.S. No. 91 and nor did he visit P.S. No. 91. On receiving information from somebody (Ex.A.2 and Ex.A.4 themselves would show this) P.W.2 sent these communications. In both these complaints, the allegation is EVMs are not functioning and the allegation is not that they are malfunctioning. R.W.1, the returned candidate, asserts that there was no mistake of any nature in the functioning of EVM at P.S. No. 91. He also deposed that the polling agents of the petitioner did not make any complaint nor they were present at the time of mock poll at P.S. No. 91. In cross-examination, he deposed that the EVM in P.S. No. 91 recorded the voters' choice correctly and that the functioning of EVM was proper. He did not receive any information about malfunctioning though the polling started with some delay. The Returning Officer, R.W.5, admits that he received complaints from Zonal Offices from six places relating to starting problems with EVMs at P.S. Nos. 38, 47, 90, 91, 94 and 97. Immediately after receiving complaints, he deputed technical officers from ECIL to rectify the defects and all EVMs were rectified. In P.S. No. 49, balloting unit of EVM was not functioning and therefore, it was replaced. Thereafter, polling went on. P.W.1, P.W.2, P.W.4, R.W.4 and R.W.5 did not say that by reason of such delay, all voters could not vote at P.S. No. 91.
37. The analysis of the evidence as above would show that P.W.1, P.W.2 and R.W.5 were not present at P.S. No. 91 when the voting commenced. P.W.4 admits that he was present at the polling station where polling commenced at 7.45 a.m. He did not give any complaint about voters who could not exercise their votes. He denied the suggestion that the mock poll was conducted before 7.00 a.m., on polling day. P.W.4 is certainly interested to strengthen the case of petitioner. When polling could not commence due to malfunctioning of EVM at P.S. No. 91, nothing prevented him to lodge a complaint with Presiding Officer, if any of the voters were not able to exercise their franchise. He did not do so. P.W.2, election agent, received complaints from some persons, who are not examined. Therefore, the evidence that is available on this aspect is evidence of R.W.5. He is candid enough to say that in other polling stations, there was starting trouble with the EVMs and they were rectified. Merely because on election day, returning officer gives instructions on telephone and completes the task as per schedule, the same does not lead to an inference that proper action was not taken as per the procedures. Absence of logbook to record complaints and action takes thereon lead to inference that petitioner's allegation is incorrect.
38. Learned Counsel has not placed before this Court any normative standards as contained in the Election Manual or instructions to various officers which requires a log book to be maintained for entering the complaints and for recording rectification details.
39. Learned Counsel for petitioner submits that though R.W.5 deposed that the EVM at P.S. No. 91 and other polling stations being P.S. Nos. 38, 47, 90, 94 and 97 were rectified, the same stands not proved. The learned Counsel would like this Court to ignore Ex.B.12, which is a test certificate given by the District Coordinator, ECIL, Hyderabad. To appreciate the contention, the starting point is the finding on the other aspect of the matter mentioned above. The petitioner or the election agent or polling agent in P.S. No. 91 did not lodge any complaint which was not based on personal knowledge. Then why Ex.B.12 came into existence. Counting of votes took place on 11.05.2004. As deposed by Returning Officer, R.W.5, the complaints regarding defective EVMs were received and they were rectified, that the mock poll was conducted at all the polling stations and that there is no procedure to obtain certificate from the Technical Officer after EVM is rectified. He further deposed that on 11.05.2004, P.W.1 gave a complaint, Ex.B.11 to R.W.5. In this, P.W.1 informed that out of 511 total votes polled at P.S. No. 91, he and candidate of TRS, who are main contenders, polled 'zero' votes and that he has a suspicion that EVM at P.S. No. 91 is faulty. He requested R.W.5 to look into the matter and take necessary action for doing justice. After receiving Ex.B.11, R.W.5 verified EVM used at P.S. No. 91 to see whether alignment of ballot paper is properly arranged or not. R.W.5 then asked Technical Officer to be present to verify the EVM and tell whether EVM was properly functioning or not. The Technical Officer reported that EVM at P.S. No. 91 is working properly. Again, R.W.5 called a Senior Technical Officer of ECIL. He came, verified and gave certificate Ex.B.12. A suggestion was made to him that Ex.B.12 was prepared recently, which he denied. That is not the end of the episode. Ex.B.12 is "tested certificate" given by one T.Shanker, District Coordinator, ECIL, Hyderabad (Senior Technical Officer). He certified that in Ex.B.12 that, "the controlling unit bearing No. F94650 used for polling station No. 91 for 206 Museerabad Assembly Constituency has been tested on the request of Returning Officer, on 11.05.2006 and found that that the control unit is in perfect working condition. The total votes polled in P.S. No. 91 is tallied with the votes polled in P.S. No. 91." On the reverse side of Ex.B.11, the election observer one Sri Waseed Arshad (Election Observer E-2330) made the following endorsement addressed to R.W.5.
40. I have talked to other EC observers. The integrity of the machines have been demonstrated beforehand and duly checked even by the candidates' representatives.
41. The total tallies
42. The complaint pertaining to 8th round is preferred after 15th round, keeping in mind the results. As a result, the complaint is dismissed as lacking substance.
43. Hence, no recount is ordered.
44. Results may declared by the R.O.
45. Thus, Ex.B.12 is a document, which was prepared and kept during the course of official business following logical steps. The same cannot lightly be rejected simply because the author of Ex.B.12 has not been examined. It is the petitioner who alleges that the EVM at P.S. No. 91 was not rectified and therefore, burden was on him to show that because of such alleged defective/malfunctioning EVM at P.S. No. 91, there was improper rejection of the votes. The petitioner has not taken any steps in that direction. Therefore, on this aspect, it must be held that though initially the EVM at P.S. No. 91 had some trouble, it was rectified and the voting went on peaceful and there was no instance of any voter complaining that by reason of delayed commencement, he/she could not vote.
b) Whether the petitioner's election in 1999 improbablises 'zero' votes polled by him at P.S. No. 91?
46. Petitioner as P.W.1 deposed that he was elected as M.L.A., in 1999 when EVMs were used for polling. He did not give the number of votes he secured in 1999 or the margin with which he was declared elected. He also did not give the number of votes he secured at P.S. No. 91 or similar polling station, which is now P.S. No. 91. In the absence of such details, it is not possible to go into the question of probabilities. Indeed, as rightly pointed out by learned Counsel for first respondent, there is no pleading in the petition touching upon this aspect. Therefore, it would only be surmise to assume that the petitioner getting 'zero' votes in P.S. No. 91 is improbable. A voter who expressed his choice for a candidate in one election can always change his option and vote for other candidate. That is the democracy. Democratic alliance or allegiance of a voter to a political party is not constant loyalties shift from time to time and it is also sometimes on issue based. Therefore, even if the petitioner had succeeded in 1999 elections with all the votes polled in P.S. No. 91, the same cannot itself lead to a conclusion that EVM at P.S. No. 91 in 2004 improperly rejected favourable votes. For the query involved and enquiry required, the question whether the petitioner was elected in 1999 or whether such election was with high margin is irrelevant question. The point is decided accordingly. c) Whether negligible votes polled by respondents 2 and 3 improbablise their getting highest number of votes in P.S. No. 91?
47. Respondent No. 2 contested as the candidate of Bahujan Samaj Party and respondent No. 3 contested as a candidate of Marxist Communist Party of India (S.S.Srivatsava). As per Ex.A.11 (Form No. 20 - final result sheet), respondent No. 2 polled 2,740 votes whereas respondent No. 3 polled 989 votes. As rightly contended by learned Counsel for petitioner, respondent Nos. 2 and 3 polled single digit or double digit votes in all the polling stations, surprisingly in P.S. No. 91, respondent No. 2 polled 268 votes and respondent No. 3 polled 224 votes. In these two polling stations, the candidates of major political parties like BJP (petitioner) and TRS (first respondent) polled 'zero' votes. From this it is contended that respondent Nos. 2 and 3 having polled single/double digit votes in all the other polling stations could not have got large number of votes in P.S. No. 91 but for the reason that EVM allegedly did not record the votes or the voters' choice properly.
48. In this regard, it is submitted by learned Counsel for petitioner that improper procedure adopted during the first phase of preparation of EVMs by the Returning Officer or in the commissioning of EVM by Presenting Officer at the polling station could result in improper registering of voters' choice. It is also submitted that if the ballot paper is not properly aligned in the EVM, there is likelihood of votes polled in favour of petitioner getting registered as if they are polled for second respondent. The possibility or likelihood of such thing happening at the time of preparation of EVM by Returning Officer or the commissioning of EVM by the Presiding Officer, itself is not proof of the allegation that there was improper use of EVM. In the election petition, after narrating the EVM, its components and its functioning, the petitioner made the following averments.
49. As per the instructions contained in the manual, the Balloting Unit has to be prepared by the Returning Officer by:
(e) Inserting the Ballot Paper
(f) Masking the candidates buttons which are not required to be used.
(g) Setting the Slide Switch at the appropriate position i.e., 1, 2, 3 or 4 as the case may be according to the number of such units which are to be used depending upon the number of candidates and the sequence in which, they are to be used, and
(h) Sealing the Unit.
50. If any of the above operations are not executed meticulously and systematically there would be improper reception of votes.
51. The Electronic Voting Machine Manual is marked as Ex.A.1. Though the petitioner comments that if any of the operations are not executed meticulously and systematically, there would be improper reception of votes, no attempt is made to plead and prove properly this aspect of the matter. The petitioner has summoned an expert from ECIL to give evidence touching this aspect. Sri Syed Shakeeluddin, Technical Manager in ECIL (Electrical Manufacturing and Service Division), Hyderabad, is examined as C.W.1. He was summoned to produce EVMs used at P.S. No. 91 and to explain the operation of the EVM. Returning Officer was summoned to cause production of the EVM used at P.S. No. 91. He in turn sent the technical expert, who has produced balloting unit as well as control unit of EVM used at P.S. No. 91. The Government Pleader for GAD also filed affidavit of C.W.1 in lieu of Chief Examination. On 16.11.2006, C.W.1 was cross-examined by the counsel for petitioner and counsel for first respondent. The balloting unit of EVM with Serial No. F94818 is marked as M.O.1 and controlling unit of EVM with Serial No. F94650 is marked as M.O.2. During the examination of C.W.1, M.O.1 and M.O.2, which were kept in sealed cloth box were opened in the Court to examine whether there was proper alignment of the ballot paper. It is observed that the alignment is proper and the name of the person with the election symbol are in a serial order as per the ballot paper, which is inserted in the balloting unit.
52. C.W.1 deposed that he knows entire operating system of the EVMs and that he is working as Technical Manager for the last six years. He was training the polling officers and polling personnel about the functioning of EVMs. Before they are supplied to Election Commission of India, EVMs are thoroughly tested and even after supply they are tested in the premises of the customer. The technical personnel of ECIL are made available with the Returning Officer for assistance on the date of polling. The control unit of the EVM records voting in respect of contesting candidates and it shows the number of candidates contested, total number of votes polled in a particular booth and also number of votes polled to each candidate when the result button is pressed. In the cross examination by counsel for petitioner, he deposed that the micro controller (micro chip) used in EVM is manufactured in USA and the data also fed into the micro controller in USA. He, however, admitted that he does not know much about the security measures in manufacturing of micro controller and data entry. But, he asserted that manufacturer is given identification code with digital signature which is programmed only once. He was asked to say whether there is any way to check whether the voters' choice or franchise has been correctly recorded in the controlling unit or not. He replied that there is no such way in the EVM or controlling unit, but he denied the suggestion that a person, who has access to software before programme is installed in the EVM can tamper with the data and that EVM being a stand alone device, manipulations are not possible. He also deposed that the possibility of malfunctioning is less and that the ballot paper is prepared in full size as per the Rules of ECI and when it is fixed on the balloting unit, there is no chance of going this way or that way.
53. Though C.W.1 was summoned by petitioner, nothing came out of him to help the case of petitioner that there was improper alignment. The theory of improper alignment is misconceived. When once - as seen by this Court, the ballot paper is fixed in proper place on the balloting unit, as per Ex.A.1, Manual, there is no chance of ballot paper moving sideways, upward or downward and therefore, the allegation made by petitioner that there was improper alignment is only an imagination.
54. It is no doubt true that respondent Nos. 2 and 3 polled highest number of votes. As already discussed, that itself cannot lead to a conclusion that there was improper alignment or improper reception or improper rejection of votes by EVM used at P.S. No. 91. It is quite possible that the voter in P.S. No. 91 decided not to vote for candidates of major political parties. Support can be drawn for this, by the admitted fact that the BJP candidate for Parliamentary Constituency for which elections were held simultaneously got only six (6) votes in P.S. No. 91 and Congress-I candidate for Parliamentary Constituency got sixteen (16) votes at P.S. No. 91. This also compels an inference that voter at P.S. No. 91 was not inclined to express his choice in favour of the petitioner or first respondent. Therefore, the submission of learned Counsel cannot be accepted. The mere fact that respondent Nos. 2 and 3 polled maximum number of votes at P.S. No. 91 even though they polled single/double digit votes in all other polling stations does render 'zero' votes polled by petitioner improbable? d) Whether small margin of 240 votes by which first respondent won leads to an inference that there was improper rejection of votes?
55. A reference is made to Form No. 21E - Return of Election. As per this, the petitioner polled 53,313 votes and first respondent polled 53,553. Thus, there was a margin of 240 votes. Form No. 21E, however, is not marked. Form No. 20 - final result sheet, under Rule 56C (2c) of the Conduct of Elections Rules is marked as Ex.A.11. This contains the number of valid votes cast in favour of all the contestants in each polling station as well as grand total of votes polled. This also shows that first respondent won the election by a margin of 240 votes. When returned candidate is declared elected with narrow margin, should one draw conclusion that there is improper reception of votes materially affecting the election of the returned candidate? Here a reference may be made to Sections 65 and 66 of the RP Act.
56. In the prayer portion of the petition, the petitioner prayed this Court to call for the entire records relating to and connected with election, order inspection and scrutiny of the control unit and balloting unit used at P.S. No. 91 and P.S. No. 82. He did not specifically ask for recounting of votes. This is presumably because he got 'zero' votes. Mere margin of defeat by itself cannot be a ground to order recount of votes. It is well settled. Even if the petitioner is defeated with meager margin of votes in a case where the election is assailed on the ground of improper reception of votes, the relevant issue would be whether such improper reception of votes insofar as it is concerned with the returned candidate has materially affected or not. The relevant issue in such a case cannot and should not be whether meager margin of defeat by itself is relevant to come to a conclusion that election of returned candidate is affected.
57. It is well settled now that a defeated candidate who seeks recounting of the votes has to fulfil two conditions. These are i) petition should contain adequate statement of material facts on which the petitioner relies to support his case; and ii) there is material to arrive at prima facie satisfaction that recount of ballot papers is necessary to do complete justice between the parties (see M.China Sami v. K.S.Palani ). The petitioner has not even made an allegation that margin of 240 votes is itself indicative of improper rejection of votes. Therefore, the submission cannot be accepted. Election law contemplates that the contesting candidate who polled maximum number of votes shall have to be declared elected even if such margin is one. Indeed, Section 65 of the RP Act contains a fiction. This provision stipulates that if equity of votes is found to exist between the candidates and addition of one vote will entitle in all the candidates to be declared elected, the Returning Officer shall decide between those candidates by lot and proceed as if the candidate on whom the lot falls had received an additional vote. It only means that in a given case, the candidate can be declared elected even if he has margin of one vote. Such a situation does not necessarily lead to conclusion that there was improper reception or rejection of votes. The point is therefore decided against the petitioner and in favour of contesting respondents.
e) Whether the evidence of P.W.5 to P.W.23 proves the improper rejection?
58. The case of petitioner has been that the area of the constituency falling under P.S. No. 91 is a stronghold and he could not have polled 'zero' votes therein. He further alleges that as many as 23 persons listed in paragraph 11 of the election petition, and Ors. voted in his favour. From this the petitioner would request this Court to come to a conclusion that the EVM at P.S. No. 91 did not receive the votes properly. He further alleges that the ballot paper was not placed properly in the space provided for the purpose, and that it was not aligned properly so that each candidate's name and symbol were in line with corresponding candidates lamp and button. According to petitioner, misalignment created confusion and as a result of this several votes actually polled in favour of petitioner appear to have been shown as polled in favour of another candidate.
59. During trial of election petition, petitioner filed Election Application No. 146 of 2005 to summon twenty nine (29) persons who are registered voters and allegedly sympathizers of BJP. The application was opposed. This Court relied on decision of Supreme Court in S.Raghbir Singh Gill v. S.Gurucharan Singh Tohra 1980 Supp SCC 53 and A.Neelalohithadasan Nadar v. George Mascrene 1994 Supp (2) SCC 619 and directed to issue summons. After receiving summons, twenty-two (22) of the witnesses were present on 31.03.2005. On that day, P.W.5 - a voter was examined but first respondent sought time to get instructions from his client. The matter was again called on 19.04.2005. It was brought to the notice of this Court that first respondent preferred Special Leave Petition in Supreme Court against the order in E.A. No. 146 of 2005. Therefore, from that date, till 09.06.2006, the matter was kept pending as there was an order of stay passed by Supreme Court. The SLP was dismissed on 05.05.2006. Thereafter, P.W.14 to P.W.19 were examined on 21.06.2006 and P.W.22 and P.W.23 were examined on 19.07.2006. Section 94 of the RP Act is to the effect that 'no witness or other person shall be required to state for whom he has voted in the election'. In Raghbir Singh (supra), Supreme Court held that, 'where a voter waives his privilege not to be compelled to disclose for whom he voted...it does not violate any other principle because it was enacted to help him to vote free from any inhibition or force or apprehension of being subjected to some calamity. Inescapable conclusion is that Section 94 of the RP Act enacts a qualified privilege in favour of a voter not to be compelled to disclose for whom he voted but if he chooses to volunteer the information, Section 94 is not violated'. In Nayini Narasimha Reddy v. Dr. K. Laxman (which was filed against the order of this Court in E.A. No. 146 of 2005, dated 11.03.2005), Supreme Court observed that when voter is summoned and asked to state to whom he has voted, the Court has to inform such witness about the privilege conferred by Section 94 of the RP Act. In spite of such information, if voter chooses to answer, there is no contravention of secrecy of voting. It was observed therein as below.
60. Secrecy of ballots indisputably goes to the root of democracy, but the same in our opinion may not itself be a ground to refuse issue of summons to the witnesses, Section 94 of the Act merely confers a privilege upon a voter. He may even waive his right. It is not in dispute that any person can be produced as a witness by the parties to an election petition. Witnesses so produced on behalf of the parties without any summons being issued would be at liberty to disclose in the Court as to in whose favour he had exercised his right of franchise. It is, therefore, evident that the question as to whether a witness will exercise his right/privilege conferred in terms of Section 94 of the Act is a matter of volition.
61. The law may be taken as well settled that Section 94 of the RP Act confers a privilege and right on the voter. But if voter himself offers to waive the privilege and right, he can always state to whom he has voted. In case voters are brought to the Court in election petition and are asked to give evidence that they voted for a defeated candidate, can it be the basis for rendering the election of returned candidate invalid? This question needs to be considered after analyzing evidence on this point.
62. P.W.5, P.W.7 to P.W.13 depose that they voted in the elections. They also deposed that they supported BJP. They did not specify that they voted for BJP or they voted for petitioner. P.W.14 to P.W.22 assert that they supported BJP and cast their vote for BJP. P.W.23 is sister of P.W.4 (polling agent of P.W.1). According to her, P.W.17 is the wife of P.W.4 and P.W.18 to P.W.19 are sisters-in-law of P.W.23. She also stated that she voted for BJP. Thus, one group of witnesses say that they voted by pressing the EVM button, another group says they voted for BJP. In such situation, what is the importance to be attached to the evidence of these voters?
63. In a democracy where citizens by exercising their adult franchise elect representatives to rule/govern them, many factors influence voting patterns. Vote bank politics, party membership, party stronghold and committed voters are some of the parameters often pressed into service while analyzing elections pre and post poll stage. Notwithstanding this there is always an important place to undecided voters as distinguished decided/committed voters. Studies have shown that when there is vertical polarization of a group of voters into two or three identifiable groups supporting the opposite political parties in elections, ultimately undecided voters play a crucial role in the result. This group of people is noncommittal at every stage of election and only on polling day or at the time of actually casting their votes, they tilt the advantage/disadvantage in favour or against a candidate. All said and done any forecast or analysis of elections is not without substantial conjuncture. Hence, it is not always safe to rely on the witness who come to the Court and depose that they voted in favour of a defeated candidate, seeking redressal before the election tribunal/Court. Based on such assertions, if elections are declared void or invalid or it is declared that victory of the candidate is materially affected by such improper reception/rejection of votes, there cannot by any end to the elections, which ultimately require some finality at least for a given period. Therefore, the evidence of persons, who depose that they voted for the defeated candidate, has to be considered very carefully.
64. As noticed supra, though an attempt was made by learned Counsel for first respondent that P.Ws.5 to 23 are interested witnesses, their evidence cannot be totally ignored nor totally accepted. The legislature has taken extreme care in this regard. Every improper reception/improper rejection of votes polled cannot by itself render the election of returned candidate void. Every improper reception/refusal/rejection of any vote must be shown to have materially affected election of returned candidate. This point is, therefore, decided accordingly.
f) Whether alleged malfunctioning/improper functioning of EVM at P.S. No. 91 and whether the alleged improper rejection of the votes of P.Ws.5 to 23 as alleged materially affected the result of election of returned candidate?
65. The election of returned candidate cannot be interfered with lightly. It is an axiom of election law. In Jyoti Basu v. Debi Ghosa this principle was lucidly reiterated by Supreme Court as below.
66. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down.
67. Section 100 of RP Act enumerates grounds for declaration of elections void. Sub section (1) thereof with all its clauses and sub clauses reads as under. 100. Grounds for declaring election to be void: (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, The High Court shall declare the election of the returned candidate to be void.
68. The above provision fell for consideration before a Constitution Bench of Supreme Court in Jabar Singh v. Genda Lal . Their Lordships laid down as below.
69. In dealing with the challenge to the validity of the election of the returned candidate under Section 100(1) (d), it would be noticed that what the election petition has to prove is not only the existence of one or the other of the grounds specified in Clauses (i) to (iv) of Section 100(1) (d), but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election in so far as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is: has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case.... In other words, the scope of the enquiry in a case falling under Section 100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100 (1) (d) (iii), the result of the returned candidates election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100 (1) (d) itself.
70. As laid down by Supreme Court, no other enquiry is legitimate or permissible in an election case based on Section 100(1)(d) of RP Act. In S.N. Balakrishna (supra), the same view has been taken when their Lordships approvingly quoted placitum from Judgment of Justice Grove in Hackney Case (1870) 2 O' M and H Election Rep. 77. Justice Grove in his opinion had said:
It seems to me to be a problem which the human mind has not yet been able to solve, namely, if things had been different at a certain period, what would have been the result of the concatenation of events upon that supposed change of circumstances. I am unable at all events to express an opinion upon what would have been the result, that is to say, who would have been elected provided certain matters had been complied with here which were not complied with. It was contended that I might hear evidence on both sides as to how an elector thought he would have voted at such election. That might possibly induce a person not sitting judicially to form some sort of vague guess, but that would be far short of evidence which ought to satisfy the mind of a Judge of what any individual who might express that opinion would really do under what might have been entirely changed circumstances. But, besides that, one of the principles of the Ballot Act is that voting should be secret, and voters are not to be compelled to disclose how they voted except upon a scrutiny after a vote has been declared invalid. Notwithstanding that, I am asked here, assuming the construction for which Mr. Bowen contends to be correct, to ascertain how either the 41,000 electors of this Borough, or any number of them, might have wished to vote had they had the opportunity of doing so, and what in that event would have been the result of the election. It seems to me that such an inquiry would not only have been entirely contrary to the spirit of the Act, but also that it would be a simple impossibility.
71. In S.N. Balakrishna (supra), while referring to Vashist Narain Sharma v. Dev Chandra , Supreme Court held that strict burden of proof lies on the election petitioner to prove that the election of the returned candidate has been materially affected and that there is no room for reasonable judicial guess. In saying so, the apex Court declined to follow English rulings and took the view that it is always permissible for the Judge to look to the substance of the case to know whether there were reasonable grounds to substantially affect elections. The "principle of presence of reasonable grounds" materially affecting the election is thus not followed in India. The relevant observations in S.N. Balakrishna (supra) read as follows.
72. In our opinion the matter cannot be considered on possibility. Vashist Narain (supra) insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature. In Vashist Narain (supra) and in Inayatullah v. Diwanchand Mahajan (1958) 15 Ele LR 219 at pp. 235236 (MP) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged. We cannot overlook the rulings of this Court and follow the English rulings cited to us.
73. In Ram Autar (supra), Supreme Court reiterated that when a case falls under Section 100(1)(d)(iii) of RP Act, the scope of enquiry is limited to the question whether the election of the returned candidate has been materially affected and nothing else. The relevant observations are.
74. As clarified by this Court in Jabar Singh (supra), the scope of the inquiry in a case under Section 100(l)(d)(iii) is to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant for deciding whether the election of the returned candidate had been materially affected or not. At such an enquiry the burden is on the petitioner to prove his allegations. In fact Section 97(1) of the Act has no application to a case falling under Section 100(1)(d)(iii). The scope of the enquiry is limited for the simple reason that what the clause requires to be considered is, whether the election of the returned candidate has been materially affected and nothing else.
75. In Jeet Mohinder Singh (supra), Supreme Court reiterated inter alia the following legal principle in the field of election jurisprudence.
76. The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. (See Jagan Nath v. Jaswant Singh and Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe ).
77. In Santosh Yadav (supra), a Division Bench of Supreme Court followed Vashist Narain (supra), S.N. Balakrishna (supra) and other cases and laid down the law as regards the result of election having been materially affected in case of improbable acceptance of nomination as below.
1. A case of result of the election, insofar as it concerns the returned candidate, having been materially affected by the improper acceptance of any nomination, within the meaning of Section 100(1)(d)(i) of the Representation of the People Act, 1951 has to be made out by raising specific pleadings setting out all material facts and adducing cogent evidence so as to enable a clear finding being arrived at on the distribution of wasted votes, that is, the manner in which the votes would have been distributed if the candidate, whose nomination paper was improperly accepted, was not in the fray.
2. Merely because the wasted votes are more than the difference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner.
3. The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and cogent evidence. If the petitioner is unable to adduce such evidence the burden is not discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but the court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof.
4. The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is no room for any guesswork, speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice merely to say that all or the majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature.
78. The reference to case law as above on which reliance is placed by counsel for petitioner as well as counsel for first respondent would show that unless and until it is shown by election petitioner that by improper rejection of the votes as alleged the election of first respondent is materially affected, the election cannot be interfered with. To prove the burden, the law requires strict proof of such an allegation and in this case, to say the least, no effort was made by petitioner to lead evidence on this aspect. Learned Counsel during the course of the arguments presented 'theory of probabilities' as might be - in his perception applicable to the case. According to him, the petitioner ought to have been polled 396 votes in P.S. No. 91. He has given the following calculation to arrive at this aspect.
Candidates Votes Secured Proportion of Calculations for Votes that could
total votes P.S. No. 91 have been secured
polled in P.S. No. 91 -
Averages
Aepuri
Satyanarayana 2740 0.02 0.02 of 511 10
Dr. Laxman 53,313 0.46 0.46 of 511 236
Narender 989 0.008 0.008 of 511 5
Narsimha Reddy 53,553 0.46 0.46 of 511 237 - 0
K. Nirmala 541 0.004 0.004 of 511 3
T.V. Pramod Reddy 1,222 0.01 0.01 of 511 6
P. Shobha Yadav 238 0.002 0.002 of 511 2
Habeeb Khan 621 0.005 0.005 of 511 3
K. Narayana Swamy 861 0.007 0.007 of 511 4
Srihari Rao 243 0.002 0.002 of 511 2
Maqdoom Daniyal 447 0.003 0.003 of 511 3
237 Votes of Narsimha Reddy have to be divided amongst the other contestants proportionately - which would roughly give Dr.Laxman about 160 votes.
Total Votes secured by Dr. Laxman - 236 + 160 = 396
79. Out of 1,14,768 votes, the petitioner polled 53,313 or 0.46 proportion to the total votes. From this, out of 511 votes polled in P.S. No. 91, first respondent must have been polled 236 votes. That is how the counsel would like this Court to conclude on the question of improbability of polling 'zero' votes in P.S. No. 91. This preposterous argument cannot be accepted. As mentioned supra and also as observed by Supreme Court, issue whether election of the returned candidate has been materially affected or not is not a matter for judicial guess. Probabilities or improbabilities, likelihood etc are of least relevant in such an enquiry. In this case, first respondent also polled 'zero' votes in P.S. No. 91 and he would have polled-by the same theory 237 votes. Counsel, however, submits that 237 votes polled in favour of first respondent have to be divided among other contestants proportionately, which would give 160 votes more in P.S. No. 91 to petitioner, in which event, he would get 396 votes in the said polling station. This again cannot be accepted. The basis for such distribution of probable votes in favour of first respondent has not been substantiated by counsel for first respondent. At the cost of repetition, it may again be observed that casting of votes in election depends on variety of factors and it is not possible to predict how many or which proportion of votes will go to one or other rival candidates, nor is it permissible to accept the 'ipse dixit' of witnesses coming from one side or other to say that all of the votes would have gone to one or the other. (See Santosh Yadav (supra)).
80. Therefore, on this point, this Court holds that petitioner failed to prove that the allegation that election of first respondent has been materially affected by such alleged improper rejection of votes at P.S. No. 91. Before concluding this Judgment, an important aspect of the matter repeatedly referred to by learned Counsel for first respondent may be noticed. He placed reliance on Mahender Pratap (supra), wherein it was observed that if false facts are pleaded and false evidence is produced in election petition, the Court should view such cases seriously. Supreme Court further laid down that, "in election petition, if the parties are found to have made incorrect statements in the pleadings, affidavits or depositions,...to mislead the Court, appropriate deterrent action like dismissal of their cases with costs, prosecution for perjury or initiation of contempt proceedings should be taken by the Court lest the judicial process would continue to be polluted and misused by undeserving parties to have no real grievance or cause for seeking the aid of judicial forums". In this case, petitioner sought to project a case that at the time of preparation of EVMs by Returning Officer and at the time of conducting mock poll, he or his election agent or polling agent is not present for want of notice. This is belied by Exs.B.13, B.14 and B.15. B.13 is a communication bearing letter No. M/Bad/EVMs/04/08.04.2004 addressed by R.W.5 to R.W.1 (first respondent). In this, R.W.5 informed R.W.1 that as per the procedure prescribed by ECI, general elections will be conducted with the EVMs in stead of ballot boxes and ballot papers, and that as per the procedure prescribed by ECIL; EVMs will be prepared in two phases. The first phase preparation of EVMs to be used in all the polling stations will be prepared and sealed in the presence of Returning Officer and all the contesting candidates, and that first phase preparation of EVMs will be taken up on 13.04.2004 from 9.00 a.m., onwards at MCH Indoor Stadium, Amberpet, Hyderabad. R.W.1 was requested to appoint ten agents @ one for each table where Zonal Officers will take up preparation of EVMs with the help of Assistants for all the 206 plus 10 Reserve EVMs. R.W.1 was requested to send names and addresses of Agents to be appointed on or before 12.04.2004. A similar communication was sent to P.W.1 (petitioner), which is marked as Ex.B.14. Ex.B.15 is the attendance of representatives of contesting candidates at the time of first phase of preparation of EVMs by Returning Officer on 13.04.2004. It contains names of ten persons who represented petitioner and names of the seven persons who represented first respondent. This documentary evidence would show that P.W.1 resorted to falsehood in pleadings as well as in his deposition.
CONCLUSION
81. In view of the findings on issue Nos. (ii) and (iv) relating to polling station No. 82, which are against petitioner and in view of the findings on issue Nos. (i), (iii) and (vi) relating to polling station No. 91, which are also against petitioner, this Court holds that the petitioner has not proved the petition allegations regarding improper reception of votes at P.S. No. 82 and improper rejection of votes at P.S. No. 91. On issue Nos. (v) and (vii), having regard to the findings recorded hereinabove, this Court holds that petitioner failed to prove that the election of first respondent has been materially affected by improper rejection or improper reception of votes. Therefore, the election petition is liable to be dismissed.
82. The Election Petition is accordingly dismissed with costs.