Andhra HC (Pre-Telangana)
J. Raghava Rao vs B. Ch. Garataiah on 15 April, 2002
JUDGMENT
1. This is a petition to order recount of the votes and to declare the election of the first respondent to the 114-Addanki Assembly Constituency held on11-9-1999, during A.P. General Assembly Elections, as void and consequently to declare the petitioner as a duly elected member of the A.P.Legislative Assembly from 114-Addanki Assembly Constituency.
2. The averments, in brief, in the petition are, during 1999 A.P. General Assemb ly Elections that were held on 11.09.1999 for 114-Addanki Assembly Constituency of Prakasam District, petitioner contested on behalf of Indian National Congress party, first respondent contested on behalf of Telugu Desam Party, second respo ndent contested on behalf Bahujan Samaj Party, third respondent contested on beh alf of Janata Dal (S) Party, fourth respondent contested on behalf of Communist Party of India (Marxist) Party, fifth respondent contested on behalf of Marxist Communist Party of India and sixth to ninth respondents contested as independent candidates, but the main contest was only between the petitioner and the first respondent. During 1989 A.P. General Assembly Elections petitioner was elected from the same constituency with a margin of about seven thousand and odd votes a gainst the 1st respondent. During 1994 A.P. General Assembly Elections, 1st resp ondent was elected from the same constituency with almost same margin against th e petitioner. During 1999 General Assembly elections the trend was very much in favour of the petitioner and he was expecting to win the election with a margin of more than 10,000 votes. Having come to know that petitioner is likely to ge t elected with a huge margin, first respondent indulged in several mal and corru pt practices and illegalities, and influenced the polling personnel and counting staff by misusing his position as sitting M.L.A. of the party in power. As per the Polling Officers account the total number of ballot papers issued were 1,11, 991 besides postal ballots of 150. But the total number of votes polled as per F orm No.20 were 1,11,960 besides 150 postal ballots. Out of those, 2,178 votes we re rejected. Petitioner is said to have secured 53,421 votes and first responden t is said to have secured 53,670 and therefore first respondent was declared ele cted by a margin of 249 votes. During initial counting in some ballot boxes mor e number of ballot papers than the ballot papers issued and in several ballot bo xes less number of ballot papers than the ballot papers issued were found. In al l, 11 excess ballot papers and 42 less number of ballot papers were found in the ballot boxes at the time of initial counting. Thus, there was a difference of 53 votes between the ballots polled (issued) as per the Polling Officer's accoun t and the ballot papers actually found in the ballot boxes. In Booth No.118 of Timmayapalem, H/o. Ramayapalem there are 218 Harijan voters but only 190 votes w ere polled in that booth.About five years prior to the elections, Harijans in t hat area who took up construction of a Church could not complete the work for wa nt of funds after the construction came up to roof level. On 07.09.1999 first r espondent went to Timmayapalem village at about 8.00 p.m. and called for a meeti ng of all Harijan voters and promised to complete the construction of the Church by donating material worth Rupees One Lakh on condition that they should vote f or him. The Harijans, after deliberations amongst themselves, accepted the offe r. Therefore first respondent asked them to go to Addanki on 09.01.1999 to recei ve the material and cash and accordingly got issued iron worth Rs.36,000/-, 180 cement bags worth Rs.20,000/- and electricity material worth Rs.20,000/- from th e shop of one Kakani Hanumantha Rao, a supporter and follower of first responden t, besides centering material and other expenses. That material was taken in a lorry between 4 and 5 p.m. on the same day and the construction activity was tak en up again. First respondent kept his brother Chenchu Prasad at Valaparla village from 25.08.1999 till the date of poll to induce Congress voters to vote in favour of the first respondent by bribing and supplying cheap liquor to the voters in and around Valaparla village throughout the period of his stay there. On the advice and consent of first respondent, Chenchu Prasad had on 10-9-1999, called the Harijans and elders of Valaparla and offered to pay Rs.62,500/- for cement plastering of the church, in that locality, on condition of their voting in favour of the first respondent. The Harijan elders agreed for the offer and the amount was paid to them, and the Harijan voters cast their votes to the first respondent.In normal course 90% of the Muslim voters of Valaparla would have cast their voters in favour of the petitioner. But, Chintala Hanumantha Rao, a strong supporter of the first respondent had taken Chenchu Prasad in his car to the Muslim locality and called the Muslim elders and promised to pay Rs.60,000/- for maintenance of the Mosque in that locality. The said offer was accepted, but as Hanumantha Rao and Chenchu Prasad were not having ready cash with them, they sent for D.Seetharamaiah, Village Administrative Officer, for scribing an agreement to transfer 50 cents of land in S.No.298 belonging to Hanumantha Rao in favour of the Mosque represented by Sk. Jamula and Sk. Kareem Saheb as security for the amount promised to be paid and put the Muslim elders in possession of the said land. Because of the said corrupt practice 300 votes belonging to Muslims were polled in favour of the first respondent. On 10.09.1999 Chenchu Prasad and Hanumantha Rao went to Harijanawada of Vallapalli village at about 7.00 p.m. and called the Harijan elders and promised to pay Rs.80,000/- in case the Harijans vote in favour of the first respondent, 700 Harijan voters in that locality, who normally vote in favour of the petitioner, after taking Rs.100/- per vote voted in favour of the 1st respondent.
3. 10th respondent, who asked the petitioner to furnish the names of 16 persons to act as counting agents at 14 counting tables by 04.10.1999, arranged 28 table s for counting. Petitioner who furnished names of 16 counting agents only had o n 05.10.1999 requested the 10th respondent in writing to permit him to have 14 m ore persons as his counting agents to supervise the counting process on all the 28 counting tables, but 10th respondent did not agree. Therefore there were no c ounting agents for the petitioner at table Nos.8 to 14 in Hall No.1 and 22 to 28 in Hall No.2 at the time of initial counting. Taking advantage of the absence o f the counting agents of the petitioner on 14 counting tables, the counting staf f who were in favour of the 1st respondent stamped about 300 ballots, which were not having any mark thereon in favour of the 1st respondent, and on about 200 b allots papers polled in favour of the petitioner in order to invalidate those vo tes. In spite of the petitioner bringing that fact to the notice of the 10th re spondent both orally and in writing, she did not take any action. By the end of 6th round of counting and when only two more rounds of counting remained, petitioner was in majority by about 533 votes. During the dinner break for counting staff and agents at the end of 6th round, a counting official by name Malladi Subba Rao, who was at the storage point of counted votes in counting hall No.2, though he was posted as counting assistant at table No.18, informed the 1st respondent over telephone about his possible defeat and asked him to be present in the counting hall at once. On that message 1st respondent arrived at the counting hall during dinner recess, and spoke to Mr. Malladi Subbarao secretly, and thereafter Malladi Subba Rao, brought 1000 votes already counted in favour of the 1st respondent and placed them in the drum containing uncounted ballot papers and removed equal number of ballot papers which are yet to be counted from the drum and took them to the package and sealing room. Petitioner after coming to know about the said fact, made a request to the 10th respondent both orally and in writing to order a recount, but 10th respondent who was under the influence of the 1st respondent, stated that recount of 8th round only could be ordered. Since the entire counting process was videographed, the above fact can be verified from the video tapes. The counting agents of the petitioner at table Nos.4, 15 and 18 found that votes cast in favour of the petitioner were being treated as votes polled in favour of the 1st respondent, and that bundles of votes polled in favour of the petitioner were being put as votes polled in favour of the 1st respondent, by topping those bundles with two or more ballots polled in favour of the first respondent to make it appear that those bundles contain ballots polled in favour of the first respondent. Inspite of the objection of the counting agents of petitioner, the Returning Officer failed to take action and thereby the result of the election was materially affected.
4. The averments in brief in the written statement filed by the 1st respondent a re as the petitioner failed to comply with the provisions of Secs.81, 82, 85 and 177 of the Representation of Peoples Act, (the Act) the petition is liable to b e dismissed in limine. As per the Presiding Officer's report, the total votes po lled excluding postal ballots of 150 were 1,11,983. The total number of votes p olled as per the initial counting were not 1,11,960 as alleged by petitioner but were 1,11,955. Since the petitioner admittedly did not give any complaint eith er to the Election Observer or to the Returning Officer bringing about the varia tions alleged in the petition, the variation cannot be said to have materially a ffected the election. The allegation that he induced Timmayapalem voters by pro mising to give aid for completion to the church and the alleged supply of iron, cement and electricity material from the shop of Kakani Hanumantha Rao is not tr ue. The allegations he promised to give Rs.62,500/- for the cement plastering o f the church at Vallapalli and that he induced the Muslim voters of Vallapalli b y promising to give Rs.60,000/- through his brother and the alleged execution of an agreement of sale by Hanumantha Rao for that purpose and putting the Muslims in possession thereof, and the alleged payment of money by Hanumantha Rao and h is (1st respondent) brother to Harijan voters for distributing Rs.100/- to each Harijan voter in Vallapalli village are all not true. The alleged request of the petitioner to the Returning Officer to appoint 14 more persons to supervise the counting on all the 28 tables and the alleged refusal of that request by the Re turning Officer are not true. To the knowledge of the first respondent, no such request either oral or in writing was made by the petitioner to the Returning O fficer. Since only one ballot box was provided for both Assembly and Parliamentary constituencies, at the time of initial counting all the tables were used for dividing the votes in the ballot boxes for Assembly and Parliamentary which was done in the presence of the counting agents of all the Assembly and Parliamentary constituency candidates. Thereafter 14 tables were used for counting the Assembly ballots and 14 tables were used for counting Parliamentary ballots. Three henchmen of the petitioner, who filed nominations as independent candidates also appointed their counting agents at the instance of the petitioner and they also were watching the counting. There was no possibility for any malpractice at the time of counting and so the alleged marking of blank ballot papers on Cycle symbol and the alleged double marking on the ballots polled in favour of the petitioner is not and cannot be true. No complaint either oral or written complaint was given by the petitioner during the initial counting or at the time of main counting. The alleged representations dated 05.10.1999 and 6.10.1999 are created and fabricated for the purpose of this petition. Malladi Subba Rao allegedly informing him about his possible defeat over telephone and asking him to be present at the counting hall and Malladi Subba Rao bringing the already counted votes from the storage point and putting them in the votes to be counted is an invention by the petitioner. The allegation of the alleged misbundling of the votes at counting table Nos.4,15 and 18 during 4th and 6th round of counting is not true.If any such incident took place, Sri P.L.N. Prasad, Senior Advocate who was the chief agent of the petitioner and was present throughout the counting and some of the counting agents of the petitioner who are advocates and who were present throughout the counting process would not have failed to give a report to the Returning Officer or the Election Observer or the Election Commission.
5. Respondents 2 to 9 did not file any written statement.
6. 10th respondent who is the Returning Officer filed his written statement. The number of votes polled by the petitioner and the first respondent on each round is as follows:
RoundValid votes polledRound wise majority Numberin favour ofof votes in favour of
-----------------------------------------------
PetitionerR.1Petitioner R.1 HALL No.1 (odd rounds) I34973222275--
III33843312 72--
V33813338 43--
VII33013389--88 IX33113387--76 XI33503363--13 XIII32803382-- 102 XV31413497-- 356 XVII 342 341 1- Hall No.2 (Even rounds) II34573268189--
IV33793325 54--
VI34083257151--
VIII33213394--73 X34243315109--
XII33133390--77 XIV33783218160--
XVI27043204-500 Postal Ballot 50 68-18 The total number of votes polled as per the Presiding Officer's report was 1,11,983, but not 1,11,991 and the total number of votes polled as per the initial counting was 1,11,955, but not 1,11,960, as alleged by the petitioner. Since the difference in votes polled between the petitioner and the first respondent was 249, i.e., less than 1%, after getting permission from the Election Commission of India only was the result declared on 07.10.1999. The discrepancy recorded by the counting table supervisors in 22 polling stations was as follows:
Polling Ballot papers to Ballot DiscrepancyStation be fond in ballot papers actually noted Boxes.
Box as per Col. In the ballot ------------- No.5 in Form.16box as recorded ShortExcess As recorded by by the counting The Presiding Supervisor Officer 37357341--
97637621--
177517501--
187447431--
256416401--
327547504--
336156141--
38A4784771--
48739740--1 536606591--
60A39538510-- 828818738--
925745731--
1056496481--
107722729-7 1314554541- 134760763-3 1445465451- 1517887871- 1585795781- 1706506491- 1778488462-
7. In all there were 11 excess votes and 31 votes shortage but not 42 as alleged by the petitioner. The total votes polled actually found in the ballot boxes at the initial counting was 1,11,955 and at second stage of counting was 1,11,950. No mischief or malpractice took place at the counting. Petitioner furnished a list of 17 counting agents but did not file a petition seeking permission to appoint 14 more agents as alleged in the petition. When the ballot papers are taken out of the ballot boxes for the initial counting the horizontal fold alone would be unfolded and the vertical fold will be kept intact to ensure that the voting mark in the ballot papers may not be observed to preserve the secrecy of the ballot. No counting agent of any contesting candidate raised any objection nor was a complaint given during the initial counting. The entire counting process was witnessed by all the counting agents at all the tables. They were satisfied that the counting was done properly and that no recount is necessary. Signatures of the counting agents of candidates that were present were obtained, to endorse that the counting was conducted in a proper manner. Petitioner or his election or counting agents would not have failed to complain to the Election Observer, who was present at the counting centre throughout had there been an irregularity in counting. The result of every round of counting was attested and faxed by the Election Observer to the higher authorities.
8. Basing on the above pleadings, the following issues were settled for trial:
"1.Whether there is difference of 53 votes in between the polled votes as per the Presiding Officers account and the votes actually found in the initial counting and there is a difference of 10 votes in between the initial count and the final count as stated in para 6 (a) and 6 (b) of the Election Petition?
2. Whether the first respondent herein promised to the Harijan Voters of Thimmayapalem village, hamlet of Ramayapalem to give assistance by providing material and cash worth Rs.one lakh to complete the construction of a church, in case they agreed to extend their support in the elections to be held on 11.9.1999?
3. Whether the first respondent arranged three tons of Iron, 180 bags of cement and electricity material worth Rs.20,000/- from the shop of Kakani Hanumantha Rao for the construction of the Church to Addanki Kotayya, Addanki Yogu and other committee members of the Church at Thimmayapalem for the purpose of inducing the Harijan voters to vote for him and thus the first respondent is guilty of corrupt practice within the meaning of Section 123 (1)(A) of Representation of Peoples Act, 1951?
4. Whether Mr. Chenchu Prasad the brother of the first respondent with the consent and knowledge of the first respondent was kept incharge of Valaparla village, which is having 6800 votes, to induce the voters by offering liquor and also money to vote in favour of first respondent?
5. Whether Mr. Chenchu Prasad with the consent and knowledge of his brother, the first respondent, entered into a deal with the Harijans of Valaparla village by paying Rs.62,500/- for the purpose of cement plastering to the walls of the church for extending their support by voting all the Harijans in favour of the first respondent and thus the first respondent is guilty of the corrupt practice within the meaning of Section 123 (1) (A) of the Representation of Peoples Act, 1951?
6. Whether Mr. Chintala Hanumantha Rao of Vallapalli village the follower of the first respondent and Mr. Chenchu Prasad, the brother of first respondent, met the Muslim leaders in Vallapalli village and entered into a deal with them by paying Rs.60,000/- for the maintenance of the Mosque for extending the support of the entire Muslim voters in the said village to the first respondent?
7. Whether Mr. C. Hanumantha Rao, follower of the first respondent, executed an agreement transferring 50 cents of wet land in Sy.No.298 belonging to him in favour of the Mosque represented by Mr. Shaik Jamala, S/o.Budda Kareem and Shaik Kareem Saheb, S/o. Karim Sha, till the amount of Rs.60,000/- is paid to them by the first respondent, as a security and thus the first respondent is guilty of corrupt practice?
8. Whether the first respondent's brother Mr. Chenchu Prasad and his follower Mr. Hanumantha Rao with the consent and knowledge of the first respondent went to Harijanwada of Vallapalli village on 10.09.1999 and distributed money at the rate of Rs.100/- to each voter numbering 700 for the purpose of voting in favour of the first respondent and thus the first respondent is guilty of corrupt practice?
9. Whether the counting agents of the first respondent and the counting staff indulged in putting the mark on the cycle symbol in about 300 empty ballots and also on 200 ballots which were already marked in favour of the petitioner with a view to invalidate the same to affect the prospects of the petitioner?
10. Whether Mr. Malladi Subba Rao, who was at storage point of counted votes in Hall No.2 went to the counting hall and brought one thousand ballots which were already counted in favour of the first respondent and mixed them with the votes to be counted which were in the drum and taken out equal number of ballot papers from the drum, thus materially affecting the result of the election of the petitioner?
11. Whether Mr. Subba Rao who was posted as counting assistant at table No.18 was at Returning Officer's table unauthorisedly indulged in mischief of mixing 1000 ballot papers counted in favour of the first respondent in the uncounted ballot papers and taking out the equal number of votes from the drum?
12. Whether the counting staff indulged in several irregularities during the counting as alleged in para 8 (c) of the election petition and thus material affecting the result of the election?
13. Whether the first respondent is guilty of corrupt practice and as such the election of the first respondent from 114, Addanki Assembly Constituency has to be declared as invalid and void?
14. Whether the petitioner made out a case for scrutiny and inspection of all the ballots polled in favour of respondents 1 to 9 including the rejected votes?
15. Whether the petitioner is entitled for a declaration that he is duly elected from 114, Addanki Assembly Constituency?
16. To what relief?"
9. In support of his case, petitioner examined himself as P.W.1 and nine other witnesses as P.Ws.2 to 10 and marked Exs.A.1 to A.8. In support of his case, first respondent examined himself as R.W.1 and another witness as R.W.2, but did not adduce any documentary evidence.No evidence, either oral or documentary, was adduced by the 10th respondent.
10. As stated above PW.1 is the petitioner. He spoke about his case. PWs.2 and 3 are the counting agents of the petitioner at counting tables 15 and 4 respectively. They are examined to speak about the irregularities during counting. PWs.4 to 6, who are residents of Timmayapalem are examined to speak about the corrupt practices of 1st respondent at Timmayapalem Harijanawada. PWs.7 to 9, residents of Vallampally are examined to speak about the corrupt practices of 1st respondent at Vallampalli. PW.10, a resident of Varaparla is examined to speak about the corrupt practices indulged in by the brother of the 1st respondent in that and surrounding villages. R.W.1, the 1st respondent spoke about his case. R.W.2 is the Chief Counting Agent of the 1st respondent.
11. The learned counsel for the petitioner relying on A. Neelalohithadasan Nadar vs. George Mascrene and Ors., , S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra and Ors., , contended that since purity of elections is the larger public interest, secrecy of ballot pales into insignificance when petitioner establishes ground for recount and recount cannot be rejected merely on the ground secrecy of ballot. He also relied on V.S. Achuthanandan vs. P.J. Francis and Ors., , Mahendra Pal vs. Ram Dass Malangar and Ors., , Shashi Bhushan vs. Balraj Madhok, , Raj Narain vs. Indira Gandhi, , P.H. Pujar vs. Kanihi Rajashekhar Kidiyappa and Ors., 2001(5) Scale 61, Bhabhi vs. Sheo Govind and Ors., , and Km. Shradha Devi vs. Krishna Chandra Pant and Ors.,
12. The learned counsel for the 1st respondent relied on the following decisions: Vadivelu vs. Sundaram, , Smt. Ram Rati vs. Saroj Devi and Ors., , V. Narayana Swamy vs. C.P. Thirunavukkarasu, (, Ravindra Singh vs. Janmeja Singh and Ors., , Ram Sewak vs. H.K. Kidwai, , Beliram Bhalaik vs. Jai Behari Lal Khachi and Anr., , Chanda Singh vs. Ch. Shiv Ram Varma and Ors., , M.R. Gopalakrishnan vs. Thachady Prabhakaran And Ors., 1995 Supp (2) S.C.C. 101.
13. The learned Government Pleader in support of his contention that 10th respondent is not a necessary party relied on Section 82 of the Act, Shri K.N.Nagegowda vs. D.O. Thammanna and Ors., ,Ram Raj Tewari vs. Smt.Vijaya Laxmi, , Shrilal Janva vs. Udai Ram Dhakad, , and Iqbal Singh vs. Avtar Singh and Ors., and B.S. Yadiyurappa vs. Mahalingappa and Ors., 2001(7) SCALE 225
14. In NEELALOHITHA DASAN NADAR case (1 supra), MAHENDRA PAL case (4 supra) and RAGHBIR SINGH case (21 supra) it is held that purity of election is more important than secrecy of ballot and a recount cannot be rejected merely on the basis of secrecy of ballot. As rightly contended by the learned counsel for petitioner after the procedure of counting of votes as per Rules 59A, 55B and 56B of Conduct of Election Rules, 1961 came into vogue, secrecy of ballot is maintained because nobody knows which area people voted most in favour of whom. Earlier when counting was being held booth wise, it could have been said that there would a breach of the secrecy of ballot if recount of the votes is ordered because it would be easy to know which candidate got more votes in what polling booth. But merely because there was no booth wise counting, an order for recount cannot be passed on the mere assumptions or apprehension of the petitioner. Petitioner has to make out a case for recount by establishing by acceptable evidence that there were irregularities in counting. Achutanandan case (3 supra) is not helpful for the petitioner because though respondent sought dismissal of the petition at the threshold, the said prayer was rejcted.Therefore the case has to be decided on the evidence adduced in this case.
15. In SHASHI BHUSHAN case (5 supra) the election petitioner alleging that the ballot papers were chemically treated sought to prove that fact by inspection of ballot papers. The Supreme Court held as follows:
"It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers.The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one. If these conditions are satisfied, the court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society".
16. This principle laid down by the Supreme Court would be kept in view while considering the evidence adduced, for giving findings on the issues framed.
17. In RAJ NARAIN case (6 supra) the Supreme Court held that the person accused of corrupt practice must know precisely what he is accused of so that he can meet that allegation. It is further held that fresh charges of corruptions cannot be added after the period of limitation.
18. P.H.PUJAR (7 supra) is a case where the election petitioner was defeated by 138 votes.His contention was that 387 votes were wrongly rejected and that his counting agents were not provided an opportunity to inspect the ballot papers. The High Court while allowing the Election Petition directed recount of the ballot papers. On appeal by the returned candidate the Supreme Court holding that since the grievance of the election petitioner is that 387 ballot papers were rejected as invalid by the Returning Officer without providing an opportunity to his counting agents to inspect them, and since P.W.2 the Additional Assistant Returning Officer stated that he rejected ballot papers on which the Swastik mark was found to be less than 50% of the candidate area, when the Election Commission directed that a ballot paper should not be rejected if the ballot mark is only partially in the candidate's area, directed the Registrar of the High Court to recount the 387 rejected ballot papers in the presence of the candidates or their representatives or counsel.
19. In BHABHI case (8 supra) the Supreme Court held that before the Court can order inspection of the ballot papers in an election petition, the six conditions should be satisfied i.e.,
1. That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
2. That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
3. The Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made for a recount;
4. That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
5. That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
6. That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
20. Km.SHRADHA DEVI case (9 supra) relates to an election to Rajya Sabha with a prayer to recount the votes on the ground that there was miscounting and improper rejection of valid votes. It was held that when prima facie proof of error in respect of some ballot papers is furnished, scrutiny and recount can be ordered and that that scrutiny and recount cannot be limited to those ballot papers only.
21. In VADIVELU (10 supra) it is held that only when the Court is satisfied about the truthfulness of the allegations in the petition can it order recount and that application for recount should be made before declaration of results, stating the grounds on which the recount is sought either by the petitioner or his agent before the Returning Officer and if application for recount is made after declaration of result, it is not valid.
22. In SMT.RAM RATI case (11 supra) the election to the post of Sarpanch of the Gram Panchayat under the M.P. Panchayat Raj Adhiniyam was in question it is held that since an application in writing to the Returning Officer is an essential condition precedent for recounting of votes; when no such application was filed before the Returning Officer, the Court ordering recount without a proper application under Rule 76 of M.P. Panchayat Raj Election Rules (1994) is held to be bad.
23. In V.NARANAYANASWAMY case (12 supra) the Supreme Court considered the distinction between material facts and material particulars.
24. In RAVINDER SINGH case (13 supra) the Supreme Court held that the requirements of Section 83 of the Act are mandatory and require not only a concise statement of material facts and full particulars of the alleged corrupt practices being detailed in the election petition but as per the proviso to Section 83(1) of the Act, an affidavit disclosing the source of information in respect of the commission of that corrupt practice also has to be sworn to by the election petitioner and in the absence of proper affidavit in the prescribed form, allegation pertaining to corrupt practice need not be put to trial.
25. In RAM SEWAK case (14 supra) it is held that an order for inspection of ballot papers may be granted only if the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary, and if adequate statement of material facts are made in the petition and that inspection of ballot papers cannot be granted on vague unsupported by material facts, to fish out evidence to support such pleas.
26. In BELIRAM case (15 supra) it is held that a whimsical and bald statements of the candidate that he is not satisfied with the counting do not tantamount to a statement of 'ground' within the contemplation of Rule 63(2) of the Conduct of Election Rules, 1961 and that the Court would be justified in ordering a recount, or permitting inspection of the ballot papers, only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
27. In CHANDA SINGH case (16 supra) it is held that since Rule 63 of the Conduct of Elections Rules, 1961 obligates the candidate to state 'the grounds' on which he demands recount, a mere doubt or unspecified blemish in the manner of the counting falls short of the need of the said rule, that suspicions of possible mischief in the process, or likely errors in counting always linger in the mind of the defeated candidate, and a victory by a very few votes may certainly be a ground to fear unwitting error in count given other circumstances tending that way, that the Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desperate and defeated candidates.
28. In M.R.GOPALAKRISHNAN case (17 supra) it is held that when no grievances were advanced by the election petitioner or his agents at the time of counting either orally or in writing to the Returning Officer or the election observers, or the counting staff, and when application for recount was made only after counting was over and the result was declared, recount cannot be ordered.
29. In K.N.NAGE GOWDA (18 supra), RAM RAJ TEWARI (19 supra), SHRILAL JANVA (20 supra) and IQBAL SINGH (21 SUPRA) it is held that persons other than the contesting parties cannot be impleaded as party respondents to an election petition as per Section 82 of the Act and if such parties like Returning Officer are made respondents to the petition, they can be struck of from the array of parties.
30. In B.S.YADIYURAPPA (18 supra) the election petitioner not only impleaded the returned candidate and other contesting candidates but the Returning Officer and the District Election Officer also as respondents to the election petition by making allegations against the Returning Officer and the District Election Officer. The returned candidate moved an application for dismissal of the election petition on the ground that Returning Officer and the District Election Officer, who are not necessary parties, are also impleaded as parties to the petition. The High Court allowed that petition. On appeal the Supreme Court held that merely because unnecessary parties are also added as parties to the election petition, it cannot be dismissed, as the petition can be amended by striking out unnecessary parties from the array of parties, directed the deletion of the Returning Officer and the District Election Officer from the election petition and restored the election petition. From the said decisions it is clear that 10th respondent is not a necessary party to this petition.
31. ISSUE NO.1:
The averment in para 6(b) of the petition is that in polling booth No.48 the total votes polled as per the Presiding Officer's account were 739, but according to the initial counting 740 ballots were found in the ballot box; in polling booth No.107 where 722 votes were issued, as per the Presiding Officer's account, 729 votes were found in the ballot box during the initial counting i.e., 7 ballots extra; in polling booth No.134 as per the Presiding Officer's account 760 ballot papers were issued, but during the initial counting 763 ballot papers i.e., three ballot papers extra were found, and in each polling booth Nos.3, 9, 17, 18, 25, 32, 33, 38(A), 53, 105, 131, 151, 158 and 170, one vote less than the ballots issued; in polling booth No.53 ten votes less than the ballots issued, in polling booth 60A eight votes less than the ballots issues, in polling booth 151 four votes less than the ballots issued and in polling booth 177 two ballots less than the ballots issued were noticed, and thus, in all 42 less ballots and eleven extra ballots were found in the ballot boxes during the initial counting. In para 7 of the counter/written statement filed by the 10th respondent - Returning Officer admitted that some discrepancies between the ballots issued and ballots found in the ballot boxes were found.
32. Ex.A3 is the bunch of certified copies of the Form No.16-A and Check Memos of counting of votes in respect of all the polling stations in the Constituency. They contain the details of the ballots given to the Presiding Officer of every polling station, ballots used i.e., given to the voters, ballots returned by the Presiding Officers, ballots which are to be found in the ballot boxes and the ballots actually found in the ballot boxes. If ballots found in the ballot box are less than the ballots issues, it can be taken that some of the voters have taken away those ballot papers or tore them away without putting them into the ballot box or might have misused them. If more ballots than that were issued are found in the ballot box, it may give raise to suspicion of malpractice depending on their volume. The discrepancy in the ballots issued and ballots found in the ballot boxes mentioned in the petition and spoken to by the petitioner as PW.1, are obviously based on figures mentioned in Form No.16-A contained in Ex.A3.
33. As per the check memos prepared at the time of initial counting found in Ex.A3, the ballot papers found in the ballot boxes in all the polling stations are 636, 671, 734, 663, 754, 663, 495, 456, 476, 423, 762, 715, 590, 597, 516, 496, 716, 629, 750, 743, 656, 619, 850, 209, 606, 491, 640, 337, 669, 719, 857, 792, 710, 770, 750, 614, 636, 613, 464, 495, 350, 477, 356, 478, 706, 428, 306, 740, 725, 445, 404, 675, 740, 453, 535, 354, 299, 659, 618, 490, 463, 501, 471, 403, 461, 403, 385, 557, 558, 433, 344, 353, 340, 374, 550, 571, 823, 794, 695, 662, 437, 414, 650, 659, 748, 767, 414, 422, 873, 545, 491, 870, 802, 513, 779, 504, 377, 699, 573, 542, 486, 486, 718, 729, 785, 647, 616, 475, 460, 443, 440, 790, 807, 648, 602, 729, 633, 348, 345, 323, 356, 553, 585, 670, 660, 541, 602, 940, 824, 688, 521, 845, 536, 504, 445, 299, 590, 640, 620, 690, 495, 454, 413, 401, 763, 731, 399, 365, 675, 360, 304, 304, 543, 557, 545, 699, 603, 610, 523, 455, 467, 787, 506, 509, 440, 343, 643, 790, 578, 526, 399, 417, 707, 323, 411, 436, 556, 532, 273, 871, 649, 710, 659, 622, 707, 692, 858, 846, 598, 883, 756, 431, 422, 514, 384 and 452, the total of which comes to 1,11,958. As per Form No.20, i.e., Ex.A5, the total number of valid and rejected votes found in the ballot boxes was 111950, apart from 150 postal ballot papers. We are not concerned with postal ballots in this petition. Thus, as per Ex.A5, only 1,11,950 ballots, out of 1,11,958 ballots found in the ballot boxes (as per the Check Memos in Ex.A3) were counted i.e., there is a shortage of 8 ballots.
34. On verification of the entries in all the Check Memos in Ex.A3 I noticed that one ballot in polling station No.48, 7 ballots in polling station No.107, and 3 ballots in polling station No.134 were found in excess of the ballots issued in the ballot boxes of those polling stations. Form No.16A of polling station No.48 shows that 1039 ballots bearing Nos.0044333 to 0045374 were given to the Presiding Officer. If 0044333 to 0045374 ballot papers were issued, the total of ballots given should be 1042, but not 1039, as mentioned in Form No.16A. Since 300 ballots were returned, 742 ballots should be found in the ballot box but not 739 as mentioned in Form No.16A. Since only 740 ballots were found as per the Check Memo, there was a shortage of 2 votes.
35. The difference of 8 votes as per the entry in ExA5 and the Check Memos in Ex.A3 could be a human error. Supreme Court in Mahendra Pal vs. Shri Ram Dass Malanger, 2002 AIR SCW 1100 held that if no witness was examined to establish that excess ballot papers were unauthorisedly added by somebody, and when Returning Officer is not examined and when no objection was taken during the course of counting, discrepancy could be attributed to accidental slip or clerical or arithmetical mistake.In this case since the difference in the votes between initial counting and final counting was only 8 votes, and the difference in ballots issued and ballots actually polled comes to 55 as per Ex.A3 in the various polling stations, the difference of 8 votes can be taken to be human error because petitioner did not, admittedly, taken an objection regarding the said difference at the time of counting before the Returning Officer and since he did not adduce any evidence to show that ballot papers were unauthorisedly added by somebody. Issue is answered accordingly.
36. ISSUE Nos.2 and 3:
Since these issues are interconnected, they are being discussed together.Issue No.2 relates to the 1st respondent promising to give assistance to the Harijan voters at Timmayapalem, hamlet of Ramayyapalem, by providing material and cash worth Rs.1,00,000/- to complete the construction of the Church, after taking a promise that they would extend their support to him, and issue No.3 relates to his arranging three tones of iron, 180 bags of cement and electricity material worth Rs.20,000/- from the shop of Kakani Hanumantha Rao for completion of the Church at Timmayapalem for inducing the Harijan voters to vote for him.
37. As held in V.NARAYANA SWAMY case (12 supra) election petitioner has to disclose his source of information in respect of the commission of corrupt practice, and state which of the allegations are true to his knowledge and which to his belief on information received and believed by him is true and should establish only what has been specially alleged, because charge of corrupt practice is quasi criminal in nature.
38. The specific averment in para 7(a) of the petition, relating to corrupt practices covered by issues 2 and 3, is that the incidents alleged were witnessed by Mudravati Nageswar Rao (PW.4) and Jada Nelson (P.W.5), Addanki John Pitchiah (not examined) and that those persons informed about those events to T.Venkateswarlu (PW.6), who in turn passed on the information to the petitioner. Petitioner, who asserted in the verification appended to the petition asserted that the facts stated in paras 7 and 8 are true to his information, and he believes that information to be true and correct, did not specifically disclose the source of information in his affidavit filed along with the petition. This is an infirmity, and so corrupt practices covered issues 2 and 3 need not be decided for that lapse on the part of the petitioner failing to disclose the source of information in his affidavit. Even assuming that petitioner complied with the provisions of Section 83 of the Act, since the specific case of the petitioner is that he became aware of the incidents covered by issues 2 and 3 through PW.6, he has to establish it through P.W.6, who also was not a witness to the incidents. According to the averments in the petition P.W.6 came to know about the said incidents through PWs.4 and 5.
39. The evidence of PW.4 is that when 1st respondent requested the residents of the Harijanawada of Timmayapalem to vote for him, they sought his help for compl etion of the unfinished Church in Harijanawada as a quid pro quo to vote for him and that 1st respondent agreed to supply the material and asked them to go over to Addanki to collect the material on 9-9-1999 and that some of the residents w ent to Addanki and brought the material in a lorry, and that he and others unloa ded that material from the lorry and subsequently on 10-9-1999, when P.W.6 informed some of the residents of the Harijanawada that he would visit Harijana wada to campaign on behalf of the petitioner, he was asked not to come because t hey already promised to support the 1st respondent. P.W.5 in his chief examinat ion stated that when P.W.6 came to Harijanawada on 10-9-1999 to campaign on beha lf of petitioner, they informed him that they already promised their support to 1st respondent. The evidence of P.Ws.4 and 5 is contradictory because according to P.W.4, P.W.6 sent word to some of the residents of the Harijanawada that he would come for campaign and that they asked him not to come to Harijanawada, bec ause they already promised their support to 1st respondent. According to P.W.5, P.W.6 came to Harijanawada on 10-9-1999. The evidence of PW.6 is that he came to know that the T.D.P. candidate supplied three Metric Tonnes of iron, 180 bag s of cement and electrical goods and promised to pay money to meet the labour ch arges for laying the roof.Significantly he did not state who gave that informat ion to him. During cross-examination he stated that when he went to Harijanwada of Timmayapalem on 5-9-1999, he was informed about the promise made by the 1st r espondent to provide material for construction of the Church. According to P.W. 4, 1st respondent came to Harijanawada on 7-9-1999 for election campaign and at that time, on the request of the residents of Harijanawada, he (1st respondent) promised to supply the said material. By 5-9-1999 no promise could have been made by 1st respondent to the residents of Harijanawada as stated by P.W.6 because according to P.W.4, 1st respondent visited the Harijanawada on 7-9-1999. PW.6, who was not an eye witness to the alleged incident, admitted during cross-examination that he brought PWs.4 and 5 to Court along with him. So it is clear that PWs.4 and 5 are the men of PW.6, who admittedly is a supporter of the petitioner. PW.4, who was examined on 13-3-2001, stated that the roof of the Church in the Harijanwada was laid about one month earlier from that date. If really the 1st respondent supplied money and the material for laying the roof in September, 1999, there can be no earthly reason for not laying the roof for over an year after receiving the material and money. If really the 1st respondent supplied the material from the shop of Kakani Hanumantha Rao, the account books of Hanumantha Rao would reveal the sale of that material either on 8th or 9th September, 1999. But petitioner did not take steps for production of the account books of the said Hanumantha Rao. He also did not examine Hanumantha Rao. Since PW.6 is admittedly a supporter of the petitioner and since PWs.4 and 5 are the men of PW.6, the ipsi dixit of PWs.4 to 6 that some material was brought from Addanki from the shop of Kakani Hanumantha Rao at the instance of the 1st respondent and that that material was used for laying the roof of the unfinished Church in Harijanawada of Timmayapalem, cannot be believed or accepted.Therefore, I hold that the petitioner failed to establish that the 1st respondent promised to assist the Harijans of Timmayapalem to provide material and cash worth about Rs.1,00,000/- for completion of the Church at Harijanwada and supplied material, and thereby indulged in a corrupt practice. Issues 2 and 3 are answered accordingly, against the petitioner and in favour of the 1st respondent.
40. ISSUE NOS.4 to 8 and 13:
Since all these are issues relate to the 1st respondent keeping his brother Chenchu Prasad, in-charge of his election campaign at Valaparla and neighbourin g village and inducing the voters at Valaparla and Vallapally villages by supply ing liquor and money to them, they are interconnected and so are being discussed together. PW.1, the petitioner, admittedly is not a witness to the said corrupt practices alleged against the 1st respondent.His knowledge about Chenchu Prasa d being kept in-charge and his indulging in supplying liquor and money to the vo ters at Valaparla and Vallapally villages is only through hearsay. The averments in para 7(b) of the petition, which relates to Chenchu Prasad purchasing 380 vo tes of Madigas of Madigapally village for Rs.62,500/-, through K.Anjaneyulu (PW.
10). The averments in para 7(c) relate to his (Chenchu Prasad) influencing the Muslim voters by promising to give Rs.60,000/- for improvement of the Masjid, an d their accepting the offer and his getting executed a document in respect of th e immovable property of Hanumantha Rao as security for that money of Rs.60,000/-
. The source of knowledge of the petitioner in respect of those incidents is not disclosed either in the petition or in the affidavit of the petitioner. But pe titioner as P.W.1 stated that Bala Nagi Reddy (PW.9) informed him about the said incident. The averments in para 7(d) relate to Chenchu Prasad bribing the Harijans of Vallapalli by paying Rs.80,000/-. The specific allegation is that the said Chenchu Prasad and Hanumantha Rao called Manda Seshaiah (not examined), M.Elaiah (P.W.8) and Manda Asserwadam (not examined) and paid Rs.80,000/- to them to bribe the Harijans to vote in favour of 1st respondent and that that fact was informed to the petitioner by A.Bala Nagi Reddy (P.W.9). Since the name of P.W.7 is not mentioned in the petition, his evidence that he was paid money for voting in favour of 1st respondent cannot be believed or accepted. P.W.8 admittedly is a supporter of Congress party. He admitted that P.W.9 brought him to Court to give evidence. It is not his evidence that he informed P.W.9 about the brother of 1st respondent paying Rs.80,000/- to the elders in Harijanawada for being distributed among Harijan voters at Rs.100/- per vote. The evidence of PW.9 is that he supported the petitioner during 1999-A.P.General Assembly Elections and campaigned for him, and that his knowledge about Chenchu Prasad promising to pay Rs.60,000/- and Hanumantha Rao executing a document as security for Rs.60,000/- was through one Mastan, who is not examined. The further evidence of P.W.9 is that on the day of election when he found that majority of voters are casting their vote in favour of the 1st respondent, in both the polling booths in his village, he made enquiries and the elders of Harijanawada informed him that during the previous night (during the intervening night of 10/11-9-1999) the younger brother of the 1st respondent gave money and purchased their votes. This evidence of P.W.9 establishes that P.Ws.7 and 8 did not inform him (P.W.9) that Chenchu Prasad paid Rs.80,000/- to the Harijanawada elders to distribute it among the voters at Rs.100/- per vote. Therefore, the evidence of PWs.7 to 9 regarding Chenchu Prasad purchasing Harijan votes at Vallapalli by paying Rs.80,000/- cannot be believed or accepted.
41. The evidence of P.W.10 is that on 10-9-1999 Chenchu Prasad promised the Harijans of Varaparla that he would give money for plastering of the Church and so they agreed to vote in favour of the 1st respondent and that that information was given to him by Jirra Nageswara Rao, Talluri Chitti Babu and that Chenchu Prasad supplied arrack to the villagers of Varaparla and neighbouring villages.P.W.10 admittedly is a Congress supporter i.e., supporter of the petitioner. Though he stated that Jirra Nageswara Rao and Talluri Chitti Babu, who allegedly informed him that Chenchu Prasad paid Rs.62,500/- for purchase of Harijan votes, for reasons best known to petitioner did not examine those two persons. So from the hearsay evidence of P.W.10, it cannot be said that petitioner established that Chenchu Prasad purchased the Harijan votes of Varaparla for Rs.62,500/- and supplied arrack to the voters to induce them to vote in favour of the 1st respondent.
42. Regarding Chenchu Prasad influencing Muslim voters of Vallapalle, if really a document was executed by Hanumantha Rao in favour of the elders of the Muslim community and if it is really in existence, nothing prevented the petitioner from taking steps to summon the production of the said document into Court. Since the petitioner did not take steps to summon the document, an adverse inference has to be drawn. Merely on the basis of the hearsay evidence of P.W.9, who admittedly is a strong supporter of the petitioner, it cannot be said that Chenchu Prasad influenced the Muslim voters of Vallapalle to vote in favour of the 1st respondent by inducing them with money.The hearsay evidence of P.Ws.1 and 9 regarding the corrupt practices allegedly indulged in by the brother of the 1st respondent cannot be believed or accepted, more so when it is the specific case of the 1st respondent that his brother Chenchu Prasad did not look after his election, and was campaigning at Parchur, supporting the Parchur Assembly T.D.P. candidate, as he is a native of a village within the Parchur Assembly Constituency.
43. Therefore, I hold that the petitioner failed to establish that Chenchu Prasad, brother of the 1st respondent, was kept in-charge of Valaparla village to induce the voters by offering liquor and money and that he had paid Rs.62,500/- to the Harijans of Valaparla for cement plastering the Church in Harijanwada and lured the Muslim voters of Vallapally by offering to pay Rs.60,000/- an got executed an agreement to transfer 50 cents of wet land in S.No.298 belonging to C.Hanumantha Rao in favour of the Mosque, represented by Shaik Jamal and Shaik Karim Saheb as security for Rs.60,000/- and had distributed Rs.80,000/- for purchase of 800 votes at Rs.100/- per vote from the Harijanwada of Vallapally village and so I hold issues 4 to 8 and 13 against the petitioner and in favour of the 1st respondent.
44. ISSUE NO.9:
This issue relates to the counting staff putting mark on cycle symbol in about 300 unmarked ballots papers and putting a double mark on about 200 ballots polled in favour of the petitioner. Since the petitioner was not in the counting hall he was not a witness to the incidents alleged. His knowledge about those incidents is only through his counting agents i.e., P.Ws.2 and 3. The evidence of PW.2, the counting agent of the petitioner at table No.15, is that he found Assembly ballots being marked at table No.22 during initial counting. The evidence of PW.3, the counting agent of the petitioner at table No.4, is that on the table opposite to his table, an Officer allotted for counting was found marking pink coloured ballots on cycle symbol, and that he informed the petitioner and his chief counting agent of the petitioner about the same.
45. The evidence of P.Ws.2 and 3 shows that marking on unmarked ballot papers and putting a second mark on the ballots polled in favour of the petitioner, did not take place at the tables where they were acting as counting agents. Since a counting agent at a particular counting table would be concentrating his attention on his table only, the evidence of PWs.2 and 3 that they saw something happening at the counting tables at which they are not the counting agents has to be viewed with suspicion. P.W.2 during cross-examination stated that a (marked) ballot paper, before its being put into the ballot box would be folded vertically in the first instance and horizontally next, and during initial counting, counting personnel, who were supposed to open only the horizontal fold (but not the vertical fold), opened both the folds of the ballot papers and put back the vertical fold and so he raised an oral objection and did not give a written complaint as he was deeply engrossed in the counting taking place at his table and was observing the counting process keenly, and so had no time to inform the chief counting agent (of the petitioner) about the counting staff opening both the folds of the ballots during the initial counting. This evidence of PW.2 also establishes that there can be no possibility for him to observe what was happening at table No.22. Therefore the evidence of PW.2 that he observed counting staff marking on the ballot papers at another table i.e., table No.22, cannot be believed or accepted.
46. PW.3, during cross-examination, stated that he does not know if either the petitioner or the chief counting agent of the petitioner gave any written compla int to the Returning Officer on his report about the counting officers marking t he pink coloured ballots on the cycle symbol at table No.4 and that the counting officers, after opening the ballot papers held them vertically and affixed the Swastik mark on cycle symbol. This evidence of PW.3 cannot be believed or accept ed, because it would not be possible for any counting staff to take the marking instrument into the counting hall. When all the counting agents of all the cand idates for Parliament and Assembly Constituencies, remaining counting staff, Ret urning Officer and other officials are present in the counting hall, no ordinary prudent counting official would take the risk of marking a ballot paper in thei r gaze, by putting up the ballot paper vertically. In fact Rule 54 of the Conduc t of Election Rules, 1961 lays down that the Returning Officer, before commencem ent of counting, should read out the provisions of Section 128 of the Act, which contemplates maintenance secrecy of voting and penalty for violating the secrec y, to all the persons present in the counting hall. Opening the vertical fold o f the ballot during initial counting and marking it in the gaze of the counting agents of all the candidates and counting staff and others present in the counting hall would but be a violation of secrecy of the ballot. For that reason also no ordinary prudent counting officer would indulge in such an act. If really such incidents took place, petitioner and his counting agents would not have kept quite. No doubt petitioner produced Ex.A1 to show that he gave such representation to the Returning Officer. Ex.A1 relied on by the petitioner does not contain the initial or seal or acknowledgement of receipt of its original by the Returning Officer. Petitioner, who contested in previous elections and who knows the rules and procedure at counting, cannot be believed to have delivered petitions without obtaining acknowledgements. Documents like Ex.A1 can be brought into existence at any time. So I am not taking Ex.A1 into consideration. Similarly Ex.A2 also cannot be taken into consideration because it also does not contain the acknowledgement or signature of the Returning Officer.All these apart, if incidents as spoken to by P.Ws.2 and 3 took place, apart from PWs.2 and 3, many others would have noticed the same. Failure of the petitioner to examine the counting agents of other candidates present at that time, who can be considered as independent witnesses, entails an adverse inference being drawn against the petitioner. PWs.2 and 3 being the supporters of petitioner, naturally would support his version. Their interested evidence cannot be taken to be true. Though the petitioner alleged in the petition that the entire counting was videographed, for reasons best known to him, he did not get the video tape marked. That fact also entails an adverse inference being drawn against him. Therefore I hold that the petitioner failed to establish that counting staff indulged in a malpractice of marking 300 blank ballots in favour of the 1st respondent and 200 ballots with a second marking to invalidate the ballots polled in favour of the petitioner. The issue is answered accordingly.
47. ISSUE Nos.10 AND 11:
Since these issues are interconnected, they are being answered together. The case of the petitioner is that during dinner recess after the sixth round of counting, one Malladi Subba Rao, who originally was posted at a counting table No.18 but was kept in-charge of the storage point, had brought 1000 ballots counted in favour of the 1st respondent earlier and put them in the drum of uncounted ballots, and took away 1000 ballots from the drum containing the uncounted ballots. The petitioner is not an eye witness to the said alleged incident. The case of the petitioner is that PW.2 informed him about the said incident.
48. Petitioner, as PW.1, admitted during his cross-examination that counted ballots would be bundled after fully opening the ballot papers, and uncounted ballots would remain vertically folded, and if counted ballots are to be shown as uncounted ballot, each ballot has to be folded again vertically and rebundled. The contention of the learned counsel for the 1st respondent is that if counted ballots were to be put into the drum containing uncounted ballots, all the ballots have to be folded in the middle vertically and for refolding 1000 ballots it would take a considerably long time and it would not be possible for one person to re-fold thousand ballots already counted and unfold the uncounted ballot papers in the drum in such short time and rebundle them into bundles of 25 ballots each. There is force in the said contention. If a thing as spoken to by P.W.2 happened it means that the said Subba Rao must have unfolded 1000 ballots, and folded 1000 ballots in the middle with vertical fold and bundled those 2000 ballots into 25 ballots each. Such process consumes a considerably long time.
49. No doubt Ex.A4 shows that Malladi Subba Rao was posted as an Assistant at table No.18. 10th respondent in his written statement alleged that Subba Rao was entrusted with the work at Pigeon hole in hall No.2, and since the entire counting process was videographed, the same can be verified by the Court. At page 27 of deposition petitioner stated "Ex.A1 report was given by me at the time of completion of eighth round of counting and before commencement of ninth round of counting." PW.2 stated "After I went out of the counting hall, after entire counting of ballots were over, I informed the petitioner about Subba Rao (Food Inspector) meddling with the ballot papers during dinner recess".
50. Since Ex.A7 which does not contain the initial or acknowledgement of the Returning Officer, contains a recital about the mischief allegedly committed by Malladi Subba Rao, petitioner must be imputed with knowledge of the alleged mischief of Malladi Subba Rao even before the commencement of ninth round of counting. If such a serious incident of meddling with counted ballots took place, no ordinary prudent counting agent would keep quite. He, naturally would go to his candidate or the chief election or counting agent of the candidate and bring that fact to his or their notice. From this also it is clear that Ex.A7 was brought into existence for the purpose of this petition and so no reliance can be placed thereon. In view of the above, the mere fact that Malladi Subba Rao, who was allotted duty at a counting table was asked to discharge duty at Pigeon hole, by itself, cannot be a ground for holding that he committed some mischief. The mischief allegedly committed by M.Subba Rao is alleged in para 8(b) of the petition. Towards end of para 8(b) petitioner clearly alleged that the entire counting was videographed and that the facts mentioned in para 8(b) can be seen from the video. But, for the reasons best known to him petitioner failed to bring on record the video tape. Therefore an adverse inference has to be drawn against the petitioner. So, I answer issues No.10 and 11 against the petitioner by holding that he failed to prove that Malladi Subba Rao placed thousand votes already counted in favour of the 1st respondent in the drum containing the uncounted ballots and took away 1000 uncounted ballots from the drum and further hold that the result of the election is materially effected for that reason.
51. ISSUE No.12:
The case of the petitioner is that some ballots polled in his favour were counted as the ballots polled in favour of the 1st respondent, and that the ballots polled in his favour were wrongly bundled with more than 25 ballots, and that the ballots polled in favour of the 1st respondent were bundled with less than 25 ballots and wrongly shown as bundles containing 25 ballots. Petitioner admittedly was leading in all the first six rounds of counting. According to the petitioner trouble started only after 8th round. Petitioner admittedly was not a witness to the malpractices alleged. PW.2 stated that due to lack of facilities he did not make any complaint about the malpractices observed by him and that he informed the petitioner about the malpractices after the completion of the entire process of counting and that after completion of 4th and 5th rounds of counting he refused to sign on the satisfaction memos because the marked ballots were not shown to him properly, and since counting staff were not giving proper replies to his questions, and that during the sixth round of counting a Counting Officer who came to pacify him promised that he would see that no irregularities would henceforth occur and that he would rectify the earlier mistakes, and on such assurance he signed on the Memos for 4th, 5th and 6th rounds of counting. Thus it is clear that satisfaction memos for rounds 1 to 6 were signed by PW.2. His explanation that he signed those memos only because of the assurance given by the counting officer cannot be believed or accepted. If really he informed the chief counting agent about the irregularities, the chief counting agent of the petitioner would not have failed to make a written report to the Election Officer seeking recount.
52. PW.3 admitted that he signed on the satisfaction memos for five rounds, and that during the 5th round, ignoring his objection, invalid votes were put in the compartment of T.D.P. and that during the 7th round an altercation took place between him and the counting agent of 1st respondent when the counting officials were placing the ballots polled in favour of the petitioner in the compartment of the 1st respondent, and that he informed his chief counting agent and the petitioner about the same, and that petitioner informed him that though he spoke to the Returning Officer, no steps for rectification were taken up.
53. If there was wrong bundling of votes, nothing prevented the petitioner, or his counting agents P.W.2 or or PW.3 from giving a written complaint to the Returning Officer. Admittedly no written representation or complaint was given by PW.2 or PW.3 about the alleged irregularities. For reasons best known to him, petitioner did not examine his Chief Counting Agent to whom P.Ws.2 and 3 allegedly made a report.The non-examination of the Chief Counting Agent of petitioner entails an adverse inference being drawn against him.
54. Rule 63 of the Conduct of Election Rules 1961, lays down that a candidate or his election agent or any of his counting agent may apply "in writing" to the Returning Officer to recount the votes either wholly or in part stating the grounds on which the recount is sought after Form No.20 is filled in by the Returning Officer. Except Ex.A7, the genuineness of which is doubtful, admittedly there is no other written request for recount. In P.H. PUJAR (7 supra) the Supreme Court held that recount of votes cannot be ordered in a casual manner, more so because the margin of defeat is meager and that for seeking recount, proper foundation is to be laid in the pleadings by setting out material facts and later proving them by adducing requisite evidence and merely on the ipse dixit of the election petitioner recount cannot be ordered. Since the evidence of PWs.2 and 3, who are close supporters of the petitioner, is not corroborated by any independent evidence of counting agents of other candidates, and since there is no valid written request for recounting as contemplated by Rule 63 of the Conduct of Election Rules, 1961, on vague allegations of irregularities in bundling and wrong placing of the ballot papers in the compartments, recount cannot be ordered. So, I hold that the petitioner failed to establish that the counting staff indulged in irregularities and that those alleged irregularities materially affected the result of the election. The issue is answered accordingly.
54. ISSUE NO.14:
As held by the Supreme Court in RAM RATI case (11 supra) and VADIVELU case (10 supra) since the petitioner did not make a prayer for recounting under Rule 63(2) of the Conduct of Election Rules, 1961 before the Returning Officer and since I do not find a ring of truth in the petitioner's case, I hold that the petitioner did not make out a case for scrutiny and inspection of all the ballot papers. The issue is answered accordingly.
55. ISSUE NO.15:
In view of my findings on issues 1 to 14 above, petitioner is not entitled to any relief in this petition.
56. ISSUE NO.16:
In the result, the petition is dismissed with costs.
57. Since the petition is dismissed, recrimination filed by the 1st respondent also is dismissed as unnecessary.
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15-04-2002 SSR LIST OF WITNESSES EXAMINED FOR THE PETITIONER PW.1. Jagarlamudi Raghava Rao.
PW.2. Korrapati Rajagopala Rao.
PW.3. M.Subba Rao.
PW.4. Budavarthi Nageshwar Rao.
PW.5. Jada Nelson.
PW.6. Thikala Venkateswarlu.
PW.7. Inturi Kotaiah.
PW.8. Mutuluri Elaiah.
PW.9. Avisana Bala Nagi Reddy.
PW.10.Kalahasti Anjaneyulu.
LIST OF WITNESSES EXAMINED FOR THE RESPONDENTS RW.1. B.Ch.Garataiah.
RW.2. Singamaneni Peraiah.
LIST OF DOCUMENTS MARKED FOR THE PETITIONER Ex.A1.Carbon copy of the representation given by PW.1 to the Returning Officer.
Ex.A2.Copy of written complaint.
Ex.A3. Certified copies of Form No.16-A and Check Memos of counting of votes in respect of all the Polling stations and ballots found in ballot boxes Containing 784 pages.
Ex.A4.Copy of the proceedings appointing the counting staff.
Ex.A5.Form No.20 i.e., the Final Result which shows that the 1st respondent got 249 votes more than PW.1.
Ex.A6.Copy of Form No.21-C Declaration of results.
Ex.A7.Representation given by PW.1 for recount on 7-10-1999.
Ex.A8.Diagram of counting halls drawn by RW.2 while giving evidence in Court hall.
LIST OF DOCUMENTS MARKED FOR THE RESPONDENTS
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