Andhra HC (Pre-Telangana)
Baddi Reddy Appanna Dora vs Atchamamba Korpu And Ors. on 2 May, 2003
Equivalent citations: AIR2003AP368, 2003(6)ALD165, 2003(4)ALT367, AIR 2003 ANDHRA PRADESH 368, (2003) 6 ANDHLD 165 (2003) 4 ANDH LT 367, (2003) 4 ANDH LT 367
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER Goda Raghuram, J.
1. The petitioner and respondents Nos. 2 to 6 herein were candidates for election to the No. 39, Boorugupudi Assembly Constituency in the State of Andhra Pradesh. The poll was held on 11-9-1999. Of the seven contestants in the fray, the petitioner representing the Congress Party and the 1st respondent representing the Telugu Desam Party were the principal contestants.
2. The poll was conducted by the conventional process i.e., by ballots. The counting took place on 6-10-1999 and the results declared on 7-10-1999. The 1st respondent polled 49,930 votes as against 47,955 votes polled by the petitioner, and was declared elected. The other candidates (respondents Nos. 3 to 6) secured a small number of votes each.
3. Having lost the electoral contest to the 1st respondent and by a margin of 1975 votes, the petitioner contests the election by way of this Election Petition. The petitioner asserts that "as many as 5127 votes were rejected due to the ballot adopted by the Election Authority." The petitioner seeks the following reliefs,
(a) Invalidation of the election of the 1st respondent;
(b) Direction to respondents Nos. 7 and 8 to conduct a repoll for the constituency using Electronic Voting Machines; and
(c) Alternatively a direction to respondents Nos. 7 and 8 to recount the votes polled ignoring the counting held on 6-10-1999 and the declaration of the result of the election on 7-10-1999, with a direction that a fresh declaration of result be made consequent on such recount.
4. The petitioner herein challenges the election on two grounds, which are summarised hereinbelow:--
(a) That up to the 4th round of counting (on 6-10-1999), the petitioner was leading by 336 votes. The counting took place at the Arts College, Rajahmundry, in two halls, one in the ground floor and the other upstairs. There were seven (7) tables in the ground floor and seven (7) upstairs. The petitioner had counting agents at both the places. After completion of the 4th round of counting, a fire broke out at about 9.00 p.m. and consequently, the petitioner and his counting agents came out of the halls. There was confusion and commotion. Counting resumed at about 10.45 p.m. Between 9.00 p.m. and 10.45 p.m. ballot papers were lying on the tables and some officers were Inside the counting hall. The 1st respondent was also inside the hall, where the counting tables were arranged. Between the time of occurrence of the fire accident and the resumption of counting, some votes were mixed up and added. As a result, after resumption of counting, in each of the subsequent rounds, the petitioner started trailing over the 1st respondent by 230 votes, 538 votes, 1124 votes, 246 votes and 176 votes in the 5th to 9th rounds. The petitioner, thus, suffered on account of the fire accident, on the date of counting.
(b) The petitioner suffered prejudice on account of the conduct of the poll by the ballot method, The petitioner lost the election by a margin of only 1975 votes, while the number of votes rejected as "Invalid" were 5127. Such large number of rejection of votes was the consequence of polling by the conventional method, If voting were conducted by the use of electronic voting machines, there would not have been such large number of rejected votes. The Supreme Court of India, in A. C. Jose v. Sivan Pillai, while declining to pronounce on the relative advantages or defects of either the conventional system of voting or voting by the use of electronic voting machines, had observed that it is for the legislature and the Government to decide on the merits one or the other system, The Supreme Court, however, observed that voting by electronic machines is a better and sound method to avoid any defects and irregularities that might arise from the manual system, Consequent on the above decision of the Supreme Court, the Representation of the People Act, 1951 (for short the 'Act') was amended by inserting Section 61 (A), by the Amending Act 1 of 1989 and the amended provision came into force with effect from 15-1-1989. Consequent amendments were also made to the Conduct of Election Rules, 1961 (for short the Rules') by amending Rule 49 and introducing Rule 49 (A) to (W). Despite the lapse of ten years since the amendment to the Act, the Election Commission, by adopting a pick and choose method, has directed use of electronic voting machines only in respect of some constituencies and not the entire country. The Election Commission, by it's notification published ort 12-8-1999 in the Andhra Pradesh Gazette, notified that polling to the Hyderabad and Secunderabad Parliamentary Constituencies shall be conducted by the use of electronic voting machines and to the Assembly Constituencies concerned with the above two Parliamentary Constituencies. Other Assembly Constituencies were not notified for use of the electronic voting machines. In India, electronic voting machines are used only to the extent of 15% and in rest of 85%, manual system is adopted. This irrational and discriminatory system causes prejudice to the candidates contesting in the constituencies, where the mechanical system is followed. The petitioner has similarly suffered. The Election Commission acted illegally in not adopting uniform procedures for conduct of elections by use of the electronic voting machines.
5. On 28-1-2000, this Court ordered respondents Nos. 2, 4, 5 and 6 to be set ex parte as they did not respond to the election petition, despite notices having been served on them, As the 3rd respondent was not served, fresh notice was directed to the said respondent. Eventually, the notice sent to the 3rd respondent was returned unserved with the postal endorsement "Insufficient address".
6. The 1st respondent filed her written statement in respect of the 1st ground of attack to the validity of the election pleaded by the petitioner, the 1st respondent stated that all the allegations in paragraphs Nos. 6 and 7 of the election petition are false and baseless. The written statement denies the allegation that any fire broke out after the 6th round of counting was over, that due to the fire accident the petitioner and the counting agents all came out of the hall or that there was confusion or commotion. It is also denied that counting did not take place between 9.00 p.m. and 10.45 p.m. on the date of counting, The allegation that ballot papers were lying on the table, that some officers went inside the counting hall or that the answering respondent alone was inside the counting hall at that time, has also been denied. The allegation that between the period of the occurrence of fire accident and resumption of counting, some votes were mixed up and added, as a result of which, after resumption of counting for each round, the petitioner fell short by several votes, was denied. The number of votes which the petitioner allegedly fell short by in the 5th to the 9th rounds, as set out in paragraph 7 of the election petition was denied and characterized as false and fictitious". The 1st respondent contended that there was a short circuit at the time of counting, but no fire accident. The short circuit is stated to have occurred in the electrical connections outside the counting hall and that the counting was continued with the help of "generator light system". It is further stated that the petitioner employed fourteen (14) counting agents for each table and no one on behalf of the petitioner ever raised any objection either at the time of the short circuit or, at any time thereafter. It is also asserted that the concerned parties and agents signed the papers without protest or demur. The 1st respondent further pleads that as the counting took place in accordance with law and without any error, the declaration was given in her favour.
7. In respect of the second ground of attack, the 1st respondent in her counter affidavit reiterates, there was no illegality, that the petitioner never voiced any objection to the conventional system of voting adopted in the constituency and the petitioner is, therefore, estopped from urging this aspect. According to the 1st respondent, the system of voting by use of the electronic voting machines is not a mandatory procedure and the adoption of the conventional system or the electronic voting machines is a matter of policy and convenience left to the convenience and discretion of the election authority and the State Government, The decision of the Supreme Court relied upon by the petitioner in support of this aspect of his contention is characterized in the written statement of the 1st respondent as "Irrelevant" to the facts of the case. The 1st respondent further pleads that this part of the challenge in the election petition is based on a mis-conception of the relevant provisions of law and the decisions of the Courts.
8. On 1-8-2000, this Tribunal framed the following issues :--
(i) Can the petitioner call in question the election of the 1st respondent from the Boorugupudi Assembly Constituency of East Godavari District (Assembly Constituency No. 39) in the General Election that was held on 11-9-1999 on the ground that the polling was not conducted by respondents 7 and 8 by using Electronic Voting Machines ?
(ii) Whether respondents 7 and 8 are necessary parties to the Election Petition?
(iii) Whether the Election Petition is liable to be rejected under Order 7, Rule 11, CPC on the ground that it does not disclose a cause of action?
(iv) Whether fire broke out in the counting hall at about 9-00 P.M. on the counting day i.e., 6-10-1999, as a result of which counting was stopped between 9-00 P.M. and 10-45 P.M.?
(a) If so, whether some votes, which were lying on the tables, were mixed and added before resumption of counting, which has resulted in the petitioner falling abort of votes from 5th round to 9th round of counting as alleged in para 7 of the Election Petition?
(b) If so, whether the election of the 1st respondent can be declared as void on that ground?
(v) Whether the petitioner is entitled to claim recount of the entire votes polled in the Constituency ignoring the counting done on 6-10-1999 and declaration made on 7-10-1999?
9. It was also directed that as the election petition could be disposed of on issue Nos. 1 to 3, which are issues of law, those issues be tried in the first instance. Thereafter, the election petition was adjourned from time to time on a number of occasions either at the request of the election petitioner, the 1st respondent or both, The petition eventually came to be heard on 19-2-2003 and 3-3-2003 and was reserved for pronouncement of judgment on the latter date.
10. On 19-2-2003 Mr. K. Venkata Ramaiah, learned counsel for the election petitioner orally submitted that the election petitioner does not wish to pursue the 1st ground of attack to the validity of the election as urged in the election petition viz., on the basis of the allegation regarding the fire accident that allegedly occurred at 9-00 P.M. on the date of counting and the other allegations encompassing to the said Incident. Mr. K. Venkata Ramaiah, learned counsel also stated that he would file a memo giving up this ground of challenge on the next date of hearing. On 3-3-2003 Mr. K. Venkata Ramaiah, learned counsel filed an undated memo into the court, which reads as under :
"1. The case was argued by me for 2 days and cited . This is directly on the point. I reiterate the same. The elections for assembly was held on 11-9-1999. The result was declared on 7-10-1999. My client was defeated by narrow margin of 1975 votes. In this case the total number of votes registered 5127. This is because of using manual system.
2. If electronic system is used there will not be any rejection of votes. This point is decided by . The copy of which filed by me.
3. In that case, the Polling took place with voting mission and not electrical method. The Supreme Court ordered re-election for those places to use electronic system, and ordered re-election.
4. That is the same point in this case. Rule 7, Rule 8 are necessary parties of Rule 1 to Rule 6 are contesting parties.
5. Though several Issues were framed for trial I am giving up some of the issues which requires roving enquiry, which will not benefit to my client and it is a matter of consuming lot of time.
6. And the point relevant in this case is covered by judgment of Supreme Court . So I am not pressing all other issues which are of no use to my client that is petitioner.
Hence the above memo may be received for my sub-mentions".
11. He also reported on 3-3-2003 that he is giving up the 1st ground of attack to the election and would pursue the election petition only on other surviving ground viz., the illegality of the election process on account of failure to employ electronic voting machines, Mr. K. Venkata Ramaiah, learned counsel contended that he was giving up the 1st ground of attack as it would entail leading of evidence and thus delay in the adjudication of the election petition.
12. In view of the above submission made on behalf of the election petitioner by Mr. K. Venkata Ramaiah, learned counsel and the memo filed by him on 3-3-2003, the only issue that survive for consideration is issue No. 1 viz., "Can the petitioner call in question the election of the 1st respondent from the Boorugupudi Assembly constituency of East Godavari District (Assembly Constituency No. 39) in the General Election that was held on 11-9-1999 on the ground that the polling was not conducted by respondents 7 and 8 by using Electronic Voting Machines?
13. The other issue viz., (2) as to whether the respondents Nos. 7 and 8 are necessary parties to the Election Petition also falls for consideration.
14. Section 100 of the Act sets out the grounds, on which, an election might be declared void; and Section 101 sets out the grounds for which a candidate other than the returned candidate may be declared to have been elected. An election cannot be invalidated on any ground other than the grounds enumerated in Section 100 of the Act.
15. According to the learned counsel for the petitioner, the failure of the Election Commission in employing electronic voting machines in the election to the 39th Assembly Constituency of Andhra Pradesh constitutes non-compliance with the provisions of Section 61-A of the Act and the amended rules incorporated in Chapter-11, Part-IV of the Rules.
16. Learned counsel for the petitioner places reliance on the judgment of the Supreme Court in A. C. Jose's case (supra) in support of his contention. In this case, the election to the No. 70 -- Parur Assembly Constituency in Kerala held on 19-5-1982, at which, the respondent (Sivan Pillai) has declared elected, was questioned. The elected candidate secured 123 votes more than the appellant. Of the 30,450 votes polled, 11,268 were cast manually according to the conventional ballot method as provided in the Rules and 19,182 votes were cast by means of electronic voting machines. The electronic voting machines were employed in fifty (50) out of 84 polling stations of the Constituency, pursuant to a direction issued by the Election Commission of India by virtue of a notification published in the Kerala Gazette on 13-5-1982. This notification was purportedly made by the Election Commission under Article 324 of the Constitution of India. The trial Court upheld the validity of the election rejecting the contention of the appellant that the conduct of the election by electronic voting machines was contrary to the provisions of the Act. The Issue, thus, fell for consideration of the Supreme Court. On an analysis of the constitutional position, in particular the provisions set out in Part-XV of the Constitution of India and the provisions of the Act and the Rules, the Supreme Court declared that the power of superintendence, direction and control of elections vested in the Election Commission is neither un-canalized or paramount, but is available for operation only in areas left unoccupied by Legislation. Reiterating the ratio enunciated in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi. , the Apex Court ruled ".......when Parliament or any State legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition." Applying this principle to the statutory position applicable, as on the date the impugned election was held, the Supreme Court ruled that as the Act and the Rules prescribed a particular method of voting, the Commissioner could not innovate a new method and contend that the use of the mechanical process was not covered by the existing law and, therefore, did not come in conflict with the law in the field. Interpreting the provisions of Section 59 of the Act and Rule 49 of the Rules, the Apex Court concluded that the provisions of the Act and the Rules completely excluded conduct of elections by employment of electronic voting machines. Consequent on the above conclusion, the Supreme Court allowed the appeal and set aside the election of the respondent in respect of fifty (50) polling stations where electronic voting machines were used and directed that re-poll be held in those fifty polling stations. After repoll, the court directed, the result of the election should be announced afresh after taking into account the votes already secured by the candidates. In paragraph Nos. 36 and 37 (of the AIR Report), the Supreme Court merely set out the contentions urged on behalf of the respondent enumerating the advantages and disadvantages of conduct of elections by employing the electronic voting machines or by the conventional method of ballot.
17. Mr. K. Venakata Ramaiah, learned counsel for the petitioner urged that the Supreme Court in A. C. Jose's case (supra) approved the advantages of conduct of elections by employing electronic voting machines. This contention is fallacious and based on a misconceived perusal of the decision of the Supreme Court. In paragraph No.37 (of the AIR Report), after enumerating the advantages of using electronic voting machines, as urged by the respondent, the Supreme Court observed :"...... .The fact, however, remains that if the mechanical process is adopted, full and proper training will have to be given to the voters which will take quite some time. However, we refrain from making any comments on either the defects or advantages of voting machines because it would be for the Legislature and the Government, if it revises its decision at one time or the other, to give legal sanction to the direction given by the Commission. For these reasons, it is not necessary for us to go into the very detailed notes of arguments submitted by the parties in respect of this aspect of the matter."
18. As is apparent from a true and fair comprehension of the decision of the Supreme Court in A. C. Jose's case (supra), the question whether it is mandatory to employ electronic voting machines, did not fall for consideration of the Apex Court. The matter came to be considered by the Supreme Court in the context of elections held in an Assembly Constituency in Kerala State, where in a part of the Constituency electronic voting machines were employed for conduct of elections and in a situation where the provisions of the Act and the Rules ordained conduct of elections only by the conventional method of ballot.
19. Subsequent to the decision in A. C. Jose's case (supra), the Act was amended and Section 61 -A of the Act was introduced by the Representation of the People (Amendment), Act 1988 (Act No. 1 of 1989) with effect from 15-3-1989. Section 61-A of the Act reads as under :--
"61-A. Voting machines at elections :--Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.
Explanation :-- For the purpose of this section, "voting machines" means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot papers in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election."
20. It is relevant to consider that Section 59 of the Act, which was analyzed by the Supreme Court in A. C. Jose's case (supra) continues on the statute book, Therefore, what the legislative dynamics qua Section 61-A of the Act does is to enable the giving and recording of votes by voting machines in such manner, as may be prescribed, in such constituency or constituencies, as the Election Commission may, having regard to the circumstances of each case, specify.
21. Rule 49-A to X of the Rules were Incorporated in Chapter-II in Part-IV of the Rules by a notification of the Central Government in S. O. 230 (E) dated 24-3-1992. Rule 49-A of the Rules enumerates the design of electronic voting machines; Rule 49-B: Preparation of voting machine by the Returning Officer; Rule 49-E: Preparation of voting machine for poll; Rule 49-L: Procedure for voting by voting machines; 49(M): The requirements to be complied with for the maintenance of secrecy of voting by electors permitted to vote under Rule 49-L; Rule 49(N) : The provisions to facilitate voting by blind or infirm electors where in an election voting is conducted by employment of voting machines ; Rule 49-O: Procedure to be followed by the Presiding Officer of the polling booth in circumstances where the elector decides not to vote after his electoral roll number had been duly entered in the register of voters; Rule 49-P : The procedures to cast tendered votes; Rule 49-Q: The powers of the Presiding Officer to enter the voting compartment during poll for the purpose of taking such steps as are necessary to ensure prevention of tampering or Interference with the balloting unit; Rule 49-T : The sealing of voting machines after the poll; Rule 49-V : Transmission of voting machines etc., to the returning Officer and Rule 49-X : The procedure for closing of voting machines in case of booth capturing. On a true and fair analysis of the provisions of the above Rules, it is apparent that these are facilitative regimes created for enabling the conduct of polls by employing electronic voting machines.
22. Nothing is, however, apparent either expressly or by any necessary implication, from the analysis of the provisions of the Act and the Rules, signifying any obligation on the part of the Election Commission to conduct elections only by employing electronic voting machines nor is there any obligation discernible disabling the conduct of elections by the conventional method of the ballot. The relevant provisions of the Act and the rules are in the nature of enabling provisions empowering the Election Commission to conduct elections in such constituency or constituencies, as it may, having regard to the circumstances of each case, specify. This is a discretion the Act has reposed in the Election Commission having regard to its Constitutional powers and functions under Article 324 of the Constitution of India. In exercising it's discretion, the Election Commission may legitimately consider the multitude of relevant factors, such as the extent of the availability of electronic voting machines, practicability of employing them in particular constituency/constituencies, the awareness of the electors of particular constituency/constituencies to make effective and efficient use of the voting machines and a host of other such factors. Such a broad discretion conferred on a constitutional functionary like the Election Commission cannot be confined or cribbed by construing the enabling and facilitative provision in Section 61-A of the Act, as a mandatory fiat directing a linear obligation on the Election Commission to hold elections only by employing the mechanical process -- i.e., by electronic voting machines. The relevant provisions of the Act and the rules either construed on their terms or in the setting in the statutory text as a whole permits no such extravagant curial voyage as is urged by the Election Petitioner.
23. On the above analysis, I am satisfied that the election to the 39th Assembly Constituency of Andhra Pradesh --Boorugupudi Assembly Constituency in East Godavari District of Andhra Pradesh held on 11-9-1999 by employing the conventional method i.e., by use of ballots is valid and is not in violation of the Act and the Rules.
24. As the singular surviving ground of challenge to the election fails, so does the election petition.
25. The other issue is as regards whether the respondents Nos. 7 and 8 are necessary parties to the election petition. The petitioner has impleaded the Election Commission of India, New Delhi as respondent No. 7 and has impleaded as respondent No. 8 -- "The State Election Commission, Hyderabad".
26. Application No. 168 of 2000 is an application filed in this election petition on behalf of the 7th respondent to pass an order that the 7th respondent be struck off from the array of respondents.
27. Section 82 of the Act enumerates the parties, who may be Joined as parties to an election petition. Section 82 of the Act reads as under :--
"82. Parties of the petition :-- A petitioner shall Join as respondents to his petition -
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates ; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
28. Section 86(4) of the Act enables "Any candidate who is not already impleaded as respondent, to apply to the High Court to be joined as a respondent. No other person or party, except those enumerated in Sections 82 and 86 (4) of the Act may be joined as respondent to an election petition. This position is no longer res integra and has been decided by the Supreme Court in Jyothi Basu v. Debi Goshal, and in Sundararami Reddy v. Election Commissioner of India, (1991) Suppl (2) SCC 624 : (1991 AIR SCW 772). In the circumstances, the impleading of respondent No. 7 is not warranted. The 7th respondent is accordingly struck off from the array of respondents. On the analysis above, Application No. 168 of 2000 is allowed.
29. The petitioner has impleaded the "State Election Commission, Hyderabad", as the 8th respondent. The State Election Commission is a constitutional functionary appointed to perform the functions enumerated in Articles 243-K and 243-ZA of the Constitution of India having the powers of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats and the Municipalities in the State of Andhra Pradesh, respectively. The State Election Commission, Hyderabad has no role in the conduct of elections to Assembly Constituencies. The State Election Commission, Hyderabad is neither a necessary nor a proper party to the election petition and is, therefore, struck off from the array of respondents.
30. In the result, the election petition is dismissed with costs.