Andhra Pradesh High Court - Amravati
Sri Modugala Venugopala Reddy vs Jayadev Galla on 20 March, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010199472019
IN THE HIGH COURT OF ANDHRA
PRADESH
[3206]
AT AMARAVATI
(Special Original Jurisdiction)
FRIDAY, THE TWENTIETH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
ELECTION PETITION NO: 2 of 2019
Between:
Sri Modugala Venugopala Reddy ...PETITIONER
AND
Jayadev Galla and Others ...RESPONDENTS
Counsel for the Petitioner:
1. SRI V.R.N. PRASANTH
Counsel for the Respondent(S):
1. SRI B. ADINARAYANA RAO, LEARNED SENIOR COUNSEL
APPEARING FOR SRI M. BALAJI
2. SHAIK UMAR BASHA
3. G V S MEHAR KUMAR
4. NAGESWARA RAO CHAVA
5. SHAIK UMAR BASHA
6. SHAIK UMAR BASHA
7. SHAIK UMAR BASHA
8. SHAIK UMAR BASHA
The Court made the following:
As part of the General Elections, 2019, elections were
conducted for No.13 Guntur Parliamentary Constituency. It may also
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be noted that there were simultaneous elections to the Legislative
Assembly for the State of Andhra Pradesh also. Guntur
Parliamentary Constituency contained seven (7) Assembly
Constituency segments namely, No.86 Tadikonda, No.87
Mangalagiri, No.86 Ponnur, No.91 Tenali, No.93 Prattipadu, No.94
Guntur West and No.95 Guntur East. Polling was conducted on
11.04.2019 and the votes were counted on 23.05.2019. The
petitioner along with respondents 1 to 18 had contested this election.
After the votes had been counted, the 1st respondent was declared
elected with a majority of 4,205 votes over the petitioner herein.
2. The petitioner herein, being aggrieved by the said result,
has filed the present Election Petition under Section 100(1)(d)(iii) and
(iv) of the Representation of the Peoples Act, 1951 (hereinafter
referred to as „The Act‟). The said provision reads as follows:
100. Grounds for declaring election to be void. (1) Subject
to the provisions of sub-section (2) if (the High Court) is of
opinion--
(a) .....
(b) .....
(c) ....
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected__
(i) ......
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(ii) .....
(iii).....
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act, (the High Court) shall declare the election of
the returned candidate to be void.
3. The relief sought in the Election Petition is as follows:
A) Declare the election of respondent No.1 as Member
of parliament from No.13 Guntur Parliament
Constituency, as null and void;
B) Pass an order for summoning all 9,782 postal
ballot papers including ETPBS in No.13 Guntur
Parliamentary Constituency and to declare the
result after counting them;
C) Pass an order for recounting of the votes in No.13
Guntur Parliament Constituency and to declare the
result after counting them;
D) Award costs of the Election Petition;
E) Pass such other order or direction which the
Hon‟ble Court may deem fit and proper in the facts
of the case.
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4. The grounds on which the election petitioner relies upon,
in support of the reliefs sought by him are as follows:
1) 16,977 postal ballots had been issued and 15,084
postal ballots were polled and counted. Out of these
ballots, 9,782 postal ballots were rejected and only
5,317 votes were counted as valid votes. The rejection
of the aforesaid 9,782 postal ballots is not in
accordance with Act or the conduct of Election Rules,
1961 (herein after referred to as „the Rules‟). In view
of the improper rejection of these ballots, there
should be a direction to validate these ballots and to
count them;
2) About 4,252 employees of private educational
institutions were originally drafted for election duty
and had been issued postal ballots as they would not
be able to exercise their franchise on the day of
polling. These persons were removed from election
duty by proceedings dated 02.04.2019. However, the
postal ballots issued to these employees were not
taken back nor proper steps taken to ensure that
these persons do not vote again in the polling held on
11.04.2019. Since these persons were able to
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exercise their vote twice, the election process has
become vitiated.
3) After removing the aforesaid 4,252 private
employees from election duty, 1,763 government
employees were drafted for election duty on
09.04.2019 and due to the paucity of time between
09.04.2019 and 11.04.2019, these persons were not
given the option of exercising their franchise by
postal ballots and as such, they could not vote and
the denial of such voting rights materially affects the
election which requires to be set aside;
4) The Act and the Rules provide for certain
procedures to be followed to ensure that all the votes
polled are accounted for and counted on the
counting day and to ensure that there are no
discrepancies between the actual votes polled and
the votes counted. For this purpose, the Act and
Rules have provided for forms known as Form-17A
to Form-17C. The Form 17C consists of two parts. In
the first part, the Polling Officer incharge of every
polling station has to record the number of votes
polled in his polling station and certify the same.
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Copies of part-I of Form 17C has to be given to all
the polling agents of the candidates who are present
in the polling station irrespective of the fact whether
they have asked for such copy or not. Subsequently,
at the time of counting, the person incharge of such
counting has to verify the number of votes counted
in relation to each of the polling stations and record
the number of votes counted against each polling
station. These statistics are to be recorded in part-II
of Form-17C. The Returning Officer, on the basis of
part-II of the Form-17C forms prepares the round
wise statements in the proper proforma known as
Form 20. The statistics in part-I of form-I have to be
in total accord with the statistics in part-II of Form
17C as well as the round wise counting figures in
Form 20. Any variation or any discrepancy either in
the recording of the number of votes polled or
counted or any discrepancy between part-I and part-
II of Form 17C or Form 20 would result in
invalidation of the election process. In the present
case, there have been various discrepancies
including, fabrication of Form-17C part-I, incorrect
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filling up of part-I of Form-17C, absence of
signatures of polling officers etc., apart from
variation in the figures between part-I and part-II of
Form 17C. On account of these lacunae, the election
would have to be declared invalid.
5. The 1st respondent filed his counter affidavit denying all
these allegations. The 1st respondent contended that the rejection of
9,782 postal ballots is strictly in accordance with the provisions of
the Act and the Rules and that the remaining grounds raised by the
petitioner are not tenable for various reasons and that the 1st
respondent had no control over any of the grounds raised by the
petitioner due to which the 1st respondent cannot be held responsible
for such alleged lacunae in the election process.
6. This Court, after considering the pleadings in the
Election Petition and the counter affidavit of the 1st respondent and
after hearing both sides, by an order dated 27.04.2023, framed the
following issues.
1) Whether the rejection of postal ballots by the
Returning Officer, on the ground of non-
compliance of Rule 54 of the Conduct of Election
Rules, 1961, is invalid and liable to be set aside?
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2) Whether the issue of alleged non-exercise of
franchise of 1763 government employees who had
been drafted for election duty could be gone into,
without any relief in this regard, being sought in
the election petition?
3) Whether the issue relating to alleged dual exercise
of franchise of 4252 private employees, who had
been initially drafted for election duty, and issued
postal ballots, after which they had been removed
from election duty, can be adjudicated without any
relief being sought in this regard?
4) Whether the question of discrepancy in Form 17
and Form 20 would vitiate the election of the 1st
respondent, could be gone into without any such
relief being sought in the election petition?
5) Whether the discrepancy in Form 17 and Form 20
would vitiate the election of the 1st respondent as
pleaded by the election petitioner, in the event of
the earlier issue being decided in favour of the
petitioner?
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6) If the issues in 3 and 5 are held in the affirmative,
whether the petitioner is entitled for the relief for
setting aside the election of the 1st respondent
without seeking such a consequential relief?
7) Whether the election petitioner was entitled for
relief of recounting of votes on the grounds pleaded
by him in the election petition.
7. The petitioner herein, examined himself as P.W.1 and
marked Exs.P.1 to P.17. The marking of Exhibits P.6 and P8 to P17
were objected on the ground that Ex.P6 is a photo copy and cannot
be marked as primary evidence, Exs.P.8 to P.17 are unattested photo
copies and cannot be marked as primary evidence without a proper
endorsement that they are true copies. The same were marked
subject to objection. No other witnesses were examined by the
petitioner. After cross examination of P.W.1 and closure of the
evidence of the petitioner, the 1st respondent reported that he was
not examining any witnesses. None of the other parties to the
Election Petition have participated in the trial nor sought any
opportunity of cross examination of P.W.1 nor sought to examine
themselves or any other witnesses.
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8. Sri V.R.N. Prasanth, learned counsel for the petitioner, at
the outset of his arguments, had submitted that the petitioner was
not pressing ground Nos.2 and 3. In view of this submission, issues
2 and 3 do not arise for consideration.
ISSUE NO.1: "Whether the rejection of postal ballots by the
Returning Officer, on the ground of non-compliance of Rule 54 of the
Conduct of Election Rules, 1961, is invalid and liable to be set
aside"?
9. Sri V.R.N. Prasanth, contends that postal ballots are
given along with three covers which are being referred to as Form-
13A, Form-13B and Form-13C. A declaration is also given, in Form
13 A, along with the postal ballots. The voter exercising his franchise
through a postal ballot, is expected to make the necessary marking
on the postal ballot and keep the same in the cover marked as Form-
13B. The voter is also required to make a declaration, in form 13 A,
which is to be attested/certified by an appropriate authority. This
declaration is to be kept in the cover marked as Form-13A. These two
covers are to be kept in a cover marked as Form-13C. The manner in
which these postal ballots are to be validated and counted are set out
in the Rules as well as the instructions/guidelines given to the
Returning Officer in the hand book for Returning Officer, issued in
February, 2019. The Rules as well as the guidelines state that Form-
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13C will be opened first and the two covers namely, Form-13A and
Form-13B are to be taken out at the time of counting of all the votes
polled in the election. Thereafter, the declaration in Form-13A is to
be taken out and checked if it is in accordance with the Rules
including the signature by the elector as well as due attestation by
an officer competent to do so. If the declaration is not found to be in
order, the cover-B, in Form-13B will not be opened and the postal
ballot will stand rejected. If the declaration is found to be in order,
the serial number of the ballot paper in the declaration in Form-13A
is compared with the serial number endorsed on the cover in which
form 13B has been placed. If there is no discrepancy between the
said numbers on Form-13A and Form-13B, the Form-13B cover
would be opened for taking the postal ballot into account and for
further verification of the validity of the postal ballot. However, in the
event of a discrepancy between the serial number of the ballot paper
inscribed on the cover in which form-13B is enclosed and the serial
number of the ballot paper appearing as declaration in Form 13B,
the cover containing Form-13B postal ballot will not be opened and
the postal ballot will stand rejected.
10. Sri V.R.N. Prasanth would contend that the
aforesaid 9,782 postal ballots were rejected on the ground that the
cover in which the postal ballot paper in Form-13B was placed did
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not have any serial number inscribed on the cover. He would
contend that such rejection is invalid in as much as the circular
issued by the Election Commission of India dated 04.10.2016
required the staff of the Returning Officer to fill up the ballot paper
numbers before sending the postal ballot papers to the elector. He
would submit that in such circumstances, the non filling of the serial
number of the ballot paper on the cover containing Form-13B is the
fault of the staff of the Returning Officer and as such, the covers
should have been opened and the ballots should have been counted.
11. Sri B. Adinarayana Rao, learned Senior Counsel
appearing for Sri M. Balaji, learned counsel for respondent No.1
would submit that the Rules are very clear in this regard and require
rejection of the postal ballots as the absence of any serial number of
the paper ballot, contained in Form-13B cover would automatically
mean there is a discrepancy between whatever number was available
on the Form-13A declaration. He would further submit that a closer
look at the circular relied upon by the petitioner, would show that
even the circular specifically stipulates that any discrepancy between
the serial number of the ballot paper on Form-13B cover and the
serial number of the ballot in Form-13A declaration would result in
invalidation of the postal ballot.
Consideration of the Court:
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12. The Rules relating to the manner in which postal
ballots are to be issued and counted are contained in Rules 23, 24,
27E and Rule 54-A of the Rules. Apart from this, certain instructions
issued to the Returning Officer, as contained in the hand book for
Returning Officer, issued in February 2019 would be relevant.
Instruction 11.12 and instruction 15.15 are relevant for the purpose
of this case. Rule 23 states that a postal ballot paper is given to the
elector together with a declaration in Form-13A, a cover in Form-
13B, a large cover addressed to the Returning Officer in Form-13C
and instructions to the elector in Form-13D. The elector, who
chooses to exercise his franchise, after receipt of these forms and
covers shall record his vote on the ballot paper, in accordance with
the directions contained in Form-13D and enclose it in a cover
marked as Form-13B. The elector shall also sign a declaration in
Form 13A, in the presence of the appropriate authority set out in
Rule 24(2) and the same would be attested by the said authority.
Rule 27 E and Rule 27 F prescribed the same procedure for notified
electoral personnel.
13. Rule 54-A sets out the procedure to be followed for
counting of votes received by post. Rule 54-A (4), which is extracted
below, is relevant for our purposes.
Rule 54A:
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(4) If the said declaration is not found, or has not been
duly signed and attested, or is otherwise substantially
defective, or if the serial number of the ballot paper as
entered in it differs from the serial number endorsed on
the cover in Form 13B, that cover shall not be opened, and
after making an appropriate endorsement thereon, the
returning officer shall reject the ballot paper therein
contained.
Instructions 15.15.4.14 reiterates Rule 54-A (4).
14. Ex.P3 is the representation of the petitioner, on
23.05.2019 protesting the rejection of the postal ballots. This protest
was rejected by the Returning Officer by an endorsement on Ex.P3.
This endorsement has been marked separately as Ex.P4. The
endorsement records that the postal ballots could not be accepted as
they did not have any serial number of the postal ballot on the Form-
13B cover.
15. In view of Rules 23, 24, 27E and Rule 54-A of the Rules
and the instructions contained in the hand book of Returning
Officer, the rejection of the postal ballots is in accord with the
aforesaid Rules.
16. It is the contention of the petitioner that the Circular
No.52/ECI/LET/FUNC/JUD/SDR/2016 issued by the Election
Commission of India dated 04.10.2016 casts the duty of filling up of
ballot paper number on the staff of the Returning Officer and as
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such, the postal ballots could not have been rejected. Paragraph
Nos.3 & 4 of the circular, which are extracted below are instructed.
"3. On the aforesaid smaller envelope (Form 13 B), there
is a column to write the serial number of the ballot
paper. There are cases where this column is not filled
up and as a result, the ballot contained in such envelop
gets rejected at the time of counting of votes.
4. In order to ensure that the ballot papers do not get
rejected on this ground, the Commission has directed
that the aforesaid column, for writing the serial number
of ballot paper in Form 13B, shall be filled up by the
returning Officer‟s staff itself before sending the postal
ballot paper to the elector. The staff entrusted with this
duty should be instructed to be very careful while filling
up the serial number so that the serial number is
entered correctly. In the case of polling staff voting in
facilitation centre, they should be asked to make sure
that the serial number of ballot paper is duly entered
(on Form 13 B), so that rejection of ballot paper on this
ground is avoided."
17. Paragraph No.3 of the circular further elucidates that
non mentioning of the serial number of the ballot paper on the Form-
13B cover would amount to creation of a discrepancy between the
serial number of the ballot paper given in the declaration in Form
13A and the ballot paper number that should have been recorded on
the Form 13B cover. Paragraph No.4 also states that such
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discrepancy would result in rejection of the ballot papers. The said
circular only strengthens the contention of the 1st respondent and
does not assist the petitioner in any manner.
18. Accordingly, this issue is answered against the petitioner
and in favour of the 1st respondent.
ISSUES 4 to 7:
19. These issues are dependent on the question of whether the
said discrepancies in the statistics set out in part-I of Form 17C and
part-II of Form 17C have been demonstrated by the petitioner and
such discrepancies require the setting aside of the election of the 1st
respondent.
20. Sri V.R.N. Prasanth, learned counsel for the petitioner
would contend that the petitioner, had pleaded the details of
fabrication and discrepancies in part-I of Form 17C and part-II of
Form 17 C, in paras 24 to 26 of the Election Petition and had further
detailed and explained the discrepancies along with elaborate tables
in paragraph No.25 of the affidavit filed in lieu of chief examination of
P.W.1. He has taken this Court through various forms which have
been marked as Exs.P.11 to P.17 in both part-I and part-II of the
Form 17C as well as in Form 20 to contend that the variation in
these records show a variation of 10,959 votes which are more than
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the difference of 4,205 votes with which the 1st respondent had been
declared as a returned candidate.
21. Sri V.R.N. Prasanth, after taking this Court through the
record, relied upon the Judgments of K M. Shradha Devi vs.
Krishna Chandra Pant and Ors, 1A.C. Jose vs. Sivan Pillai and
Ors.,2 M. Chandregouda vs. J. Shantha3 and Ashwani Kumar
Sharma vs. Yaduvansh Singh and Ors.,4 to contend that once an
error is shown in the conduct of election, and especially in terms of
counting of votes, there has to be a recount of votes and further
elaborate proof of all errors is not needed.
22. Sri B. Adinarayana Rao, the learned Senior Counsel
appearing for Sri M. Balaji, learned counsel for respondent No.1
would submit that the pleadings in the election petition had pointed
out discrepancies only in relation to two polling stations in detail. He
would submit that there are no specific allegations in relation to any
of the alleged discrepancies in Form 27C part-I and part-II. He would
submit that a bald allegation that there are discrepancies and
dumping of all Forms-27C certificates without any further
elaboration would not amount to necessary pleadings and statement
1 (1982) 3 SCC 389 (2)
2 (1984) 2 SCC 652
3 2012 SCC Online Kar 8572
4 (1998) 1 SCC 416
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of material particulars required under Section 83 of the
Representation of the Peoples Act. He relies upon the Judgments in
Samant N. Balakrishna and another vs George Fernandez and
others5, Kalyan Singh Chouhan vs C.P. Joshi6 and Arikala Narasa
Reddy vs. Venkata Ram Reddy Reddygari and Another 7.
23. Sri B. Adinarayana Rao, the learned Senior Counsel
submits that the 17 C forms produced by the petitioner are not
certified copies, as required under Section 65 of the Evidence Act
read with Section 74 and 77 of the Evidence Act. He would further
submit that the contention of the petitioner that these are
documents obtained under the R.T.I. Act would not assist the
petitioner in getting the said documents marked as proper exhibits.
In such circumstances, these cannot be looked into and would have
to be eschewed. He would rely upon Section 2(f) of the R.T.I Act and
Rule 93 of the Election Rules, to contend that Form 17C produced by
the petitioners are not certified copies which can be marked as
exhibits. He also relies upon the judgment of Chief Information
Commissioner vs. High Court of Gujarat and Another8.
5 1969 3 SCC Page 238 (para 29)
6 (2011) 11 SCC 786
7 (2014) 5 SCC 312
8 (2020) 4 SCC 702
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24. Sri B. Adinarayana Rao, the learned Senior Counsel
would submit that the documents referred to in paragraph 25 of the
Election Petition relate to alleged fabrication of records for polling
stations No.102 and 103 situated in the Zilla Parishad High School,
Etukuru. The discrepancies pointed out in relation to these polling
station is that the part-I of Form 17C register recorded for polling
station No.102 and part-I of Form-17C register recorded for polling
station No.103 are one and the same with no difference except that
the number of the polling station has been corrected from 102 to 103
in the 2nd form. However, no polling officer or agent has been
examined as to the circumstances in which the same presiding
officer is said to have signed both forms in relation to these polling
stations. He would submit that there can be various circumstances
due to which one presiding officer may have been allotted to both the
polling stations especially as they were both situated in the same
premises. He would submit that in the absence of any further
elucidation in relation to these two polling stations nothing further
can be made out on account of this issue.
25. Prior to the reply given by Sri V.R.N. Prasanth, Sri Balaji
Medamalli, appearing for the 1st respondent, had also drawn the
attention of this court to the Form 20 prepared by the Returning
Officer which showed that the petitioner had got 242 votes in polling
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station No.102 while the 1st respondent had only got 155 votes and
that in polling station No.103 the petitioner had polled 76 votes,
while the 1st respondent had polled 87 votes. He would submit that
the voting in these two polling stations was in favour of the petitioner
and no advantage accrued to the 1st respondent on account of any
alleged fabrication of Form 17C, in either of these polling stations.
26. Sri V.R.N. Prasanth, in reply to the aforesaid contentions
submits that all the Form 17, marked by P.W.1 had been filed along
with the Election Petition and specific pleadings in relation to these
Form 17C had been set out in para No.24 of the Election Petition. He
would submit that such mention in para No.24 fulfils all the
requirement of necessary pleadings under Section 83 of the Act. He
would further submit that the 1st respondent was fully aware of all
the documents relied upon by the petitioner and was not taken by
surprise to contend that such documents cannot be taken into
account or that they cannot be marked. He would further contend
that the 1st respondent had not disputed the genuineness of these
forms and cannot now seek to challenge the consequences of these
documents by contending that they are not admissible in evidence.
He would also rely upon the Judgments in Dahiben vs Arvindbhai
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Kalyanji Bhanusali9 and Shri Balwan Singh vs. Lakshmi Narain10
to contend that all documents filed with the plaint would have to be
treated to be the part of the plaint and as such would amount to
pleadings by themselves. He would also contend that relying upon
R.M. Seshadri vs. G. Vasantha Pai11 that the 1st respondent was
aware of the forms and the question of the authenticity of documents
would not arise.
Consideration of the Court:
27. The question whether the petitioner has been able to
demonstrate various discrepancies between the different forms would
be dependant upon whether such documents are held to be
admissible and proved. Sri B. Adinarayana Rao raises two objections
on this. He contends that the documents are inadmissible as
necessary pleadings have not been set out and secondly, the
documents cannot be admitted as they are not primary or secondary
evidence under the provisions of the Evidence Act,
28. It is settled law, that there can be no evidence without
pleading. This requires a decision as to whether necessary facts, for
the purposes of marking and considering the 17C forms, have been
pleaded.
9 (2020) 7 SCC 366 (para 23.8)
10 (1982) 3 SCC 389 (2)
11 (1969) 1 SCC 27
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29. The pleadings, in the election petition, in this regard,
are contained in paras 24 to 27. Paragraph 25 and 26 contain
specific pleadings relating to discrepancies in polling station 06, in
Tadikonda assembly constituency and polling stations 102 and 103
in Prathipadu Constituency. The remaining paragraphs 24 and 27
read as follows:
"24. I submit that in addition to above, on the basis Form
17C duly completed by counting supervisor, Returning
Officer will get prepared a round wise statement in the
following proforma. A copy of the detailed polling station-wise
breakup of the votes as shown in the said proforma will be
kept by the Observer in his folder. In addition, on the
computer installed in the Counting Hall here parallel
tabulation work will be done in an Excel Sheet to counter
check any human error. This date entry will also be done
polling station wise and Round wise. Even though computer
tabulation will not substitute the manual tabulation being
done for obtaining final result of the counting of votes, the
Computer based parallel tabulation/totalling will be helpful
as a double check on the accuracy of manual tabulation. The
said date shall be entered in the excel sheet in the computer
and a print out of the same shall be taken out and compared
by the observer and also be signed by the officer. Both
Returning Officer and the Observer should be satisfied after
due checking that the number of votes posted against the
name of leach candidate in respect of every counting table
tally with the figures as shown in Part-II of Form 17C (result
of counting) pertaining to that counting table. Then it should
be signed by Returning Officer and Observer. Thereafter
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Returning Officer should announce the result of that round
loudly or using loudspeaker for every body‟s information. The
total etc. Done manually may be tallied by entering all the
counting date in an Excel sheet and computing the total.
27. It is respectfully submitted that in respect of Mandadam
Village of Tadikonda Constituency, which falls under Guntur
Parliament Constituency, at Polling Station No.06, the
Presiding Officer, in Form 17 C, justifies the difference
between Column No.1, 2 and 6 by stating that mistake 5
voters have left without voting. This is not possible for the
reason that once the slip is given for voting, the EVM opens
up for casting the vote and only when the vote is cast, the
EVM would be ready for the next voter. As such, 5 voters
leaving by mistake does not arise."
30. Section 83 of the Act, which is relevant, reads as follows:
83. Contents of petition.-- (1) An election petition--
(a) shall contain a concise statement of the material facts on
which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges including as full a statement as
possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of
the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
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Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner as
the petition.
31. The present petition is not on the basis of any corrupt
practices, alleged against the 1st respondent. Therefore, the pleadings
in the petition would have to meet the requirement of section 83 (1)
(a) of the Act. The Hon‟ble Supreme Court, while dealing with the
scope of this section, in Samant N. Balakrishna and another vs
George Fernandez and others12, had held as follows:
29. Having dealt with the substantive law on the subject of
election petitions we may now turn to the procedural
provisions in the Representation of Peoples Act. Here we have
to consider Sections 81, 83 and 84 of the Act. The first
provides the procedure for the presentation of election
petitions. The proviso to sub-section alone is material here. It
provides that an election petition may be presented on one or
more of the grounds specified in sub-section (1) of Section
100 and Section 101. That as we have shown above creates
the substantive right. Section 83 then provides that the
election-petition must contain a concise statement of the
material facts on which the petitioner relies and further that
he must also set forth full particulars of any corrupt practice
12 1969 3 SCC Page 238 (para 29)
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that the petitioner alleges including as full a statement as
possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of
the commission of each such practice. The section is
mandatory and requires first a concise statement of material
facts and then requires the fullest possible particulars. What
is the difference between material facts and particulars? The
word "material" shows that the facts necessary to formulate a
complete cause of action must be stated. Omission of a single
material fact leads to an incomplete cause of action and the
statement of claim becomes bad. The function of particulars
is to present as full a picture of the cause of action with such
further information in detail as to make the opposite party
understand the case he will have to meet. There may be some
overlapping between material facts and particulars but the
two are quite distinct. Thus material facts will mention that a
statement of fact (which must be set out) was made and it
must be alleged that it refers to the character and conduct of
the candidate that it is false or which the returned candidate
believes to be false or does not believe to be true and that it is
calculated to prejudice the chances of the petitioner. In the
particulars the name of the person making the statement,
with the date, time and place will be mentioned. The material
facts thus will show the ground of corrupt practice and the
complete cause of action and the particulars will give the
necessary information to present a full picture of the cause of
action. In stating the material facts it will not do merely to
quote the words of the section because then the efficiency of
the words "material facts" will be lost. The fact which
constitutes the corrupt practice must be stated and the fact
must be co-related to one of the heads of corrupt practice.
Just as a plaint without disclosing a proper cause of action
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cannot be said to be a good plaint, so also an election
petition without the material facts relating to a corrupt
practice is no election petition at all. A petition which merely
cites the sections cannot be said to disclose a cause of action
where the allegation is the making of a false statement. That
statement must appear and the particulars must be full as to
the person making the statement and the necessary
information. Formerly the petition used to be in two parts.
The material facts had to be included in the petition and the
particulars in a schedule. It is inconceivable that a petition
could be filed without the material facts and the schedule by
merely citing the corrupt practice from the statute. Indeed
the penalty of dismissal summarily was enjoined for petitions
which did not comply with the requirement. Today the
particulars need not be separately included in a schedule but
the distinction remains. The entire and complete cause of
action must be in the petition in the shape of material facts,
the particulars being the further information to complete the
picture. This distinction is brought out by the provisions of
Section 86 although the penalty of dismissal is taken away.
Sub-section (5) of that section provides:
"(5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any
corrupt practice alleged in the petition to be amended or
amplified in such manner as may in its opinion be
necessary for ensuring a fair and effective trial of the
petition, but shall not allow any amendment of the petition
which will have the effect of introducing particulars of a
corrupt practice not previously alleged in the petition."
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The power of amendment is given in respect of particulars
but there is a prohibition against an amendment "which will
have the effect of introducing particulars of a corrupt
practice not previously alleged in the petition." One alleges
the corrupt practice in the material facts and they must
show a complete cause of action. If a petitioner has omitted
to allege a corrupt practice, he cannot be permitted to give
particulars of the corrupt practice. The argument that the
latter part of the fifth sub-section is directory only cannot
stand in view of the contract in the language of the two
parts. The first part is enabling and the second part creates
a positive bar. Therefore, if a corrupt practice is not alleged,
the particulars cannot be supplied. There is, however, a
difference of approach between the several corrupt
practices. If for example the charge is bribery of voters and
the particulars give a few instances, other instances can be
added; if the charge is use of vehicles for free carriage of
voters, the particulars of the cars employed may be
amplified. But if the charge is that an agent did something,
it cannot be amplified by giving particulars of acts on the
part of the candidate or vice versa. In the scheme of election
law there are separate corrupt practices which cannot be
said to grow out of the material facts related to another
person. Publication of false statements by an agent is one
cause of action, publication of false statements by the
candidate is quite a different cause of action. Such a cause
of action must be alleged in the material facts before
particulars may be given. One cannot under the cover of
particulars of one corrupt practice give particulars of a new
corrupt practice. They constitute different causes of action.
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32. This principle was further elaborated in Kalyan Singh
Chouhan v. C.P. Joshi, 13which held as follows:
17. During the trial of an election petition, it is not
permissible for the court to permit a party to seek a
roving enquiry. The party must plead the material fact
and adduce evidence to substantiate the same so that
the court may proceed to adjudicate upon that issue.
Before the court permits the recounting, the following
conditions must be satisfied:
(i) The court must be satisfied that a prima facie case
is established;
(ii) The material facts and full particulars have been
pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be
directed by way of an order to re-count the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot requires to be guarded.
[Vide Jagjit Singh (Dr.) vs. Giani Kartar Singh 14, Suresh
Prasad Yadav vs. Jai Prakash
Mishra 15, M.Chinnasamy vs. K.C.Palanisamy 16,
Chandrika Prasad Yadav vs. State of Bihar 17, Tanaji
Ramchandra Nimhan v. Swati Vinayak
13
(2011) 11 SCC 786 : (2011) 4 SCC (Civil) 656 : 2011 SCC OnLine SC 229 at page
794
14 AIR 1966 SC 773
15 (1975) 4 SCC 822: AIR 1975 SC 376
16 (2004) 6 SCC 341 : AIR 2004 SC 541
17 (2004) 6 SCC 331 : AIR 2004 SC 2036
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Nimhan 18, Gursewak Singh vs. Avtar Singh 19and Baldev
Singh vs. Shinder Pal Singh 20]
18. In Gajanan Krishnaji Bapat v. Dattaji
Raghobaji Meghe, 21 this Court held that the court
cannot consider any fact which is beyond the pleadings
of the parties. The parties have to take proper pleadings
and establish by adducing evidence that by a particular
irregularity/illegality the result of the election has been
materially affected.
19. Pleadings and particulars are required to
enable the court to decide the rights of the parties in the
trial. Thus, the pleadings are more to help the court in
narrowing the controversy involved and to inform the
parties concerned to the question in issue, so that the
parties may adduce appropriate evidence on the said
issue. It is settled legal proposition that "as a rule relief
not founded on the pleadings should not be granted".
Therefore, a decision of a case cannot be based on
grounds outside the pleadings of the parties. The
pleadings and issues are to ascertain the real dispute
between the parties to narrow the area of conflict and to
see just where the two sides differ. (Vide Sri Mahant
Govind Rao v. Sita Ram Kesho [(1897-98) 25 IA
195], Trojan & Co. v. Nagappa Chettiar 22, Raruha
Singh v. Achal Singh 23, Om Prakash
Gupta v. Ranbir B. Goyal 24, Ishwar Dutt v. Collector
18 (2006) 2 SCC 300 : AIR 2006 SC 1218
19 2006) 4 SCC 542 : AIR 2006 SC 1791
20 2007) 1 SCC 341
21 (1995) 5 SCC 347: AIR 1995 SC 2284
22 AIR 1953 SC 235
23 AIR 1961 SC 1097
24 (2002) 2 SCC 256 : AIR 2002 SC 665
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(L.A.) 25 and State of Maharashtra v. Hindustan
Construction Co. Ltd. 26 )
20. This Court in Ram Sarup Gupta v. Bishun
Narain Inter College 27held as under: (SCC pp. 562-63,
para 6)
"6. ... It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot be
considered. It is also equally settled that no party
should be permitted to travel beyond its pleading and
that all necessary and material facts should be pleaded
by the party in support of the case set up by it. The
object and purpose of pleading is to enable the
adversary party to know the case it has to meet. ... In
such a case it is the duty of the court to ascertain the
substance of the pleadings to determine the question."
[
33. These judgments are to the effect that, the details of how the
17C forms produced by the petitioner reveal discrepancies, which
would affect the outcome of the election have to be pleaded. Except in
the case of about 3 17C forms, no details of the discrepancies in the
other forms have been given. In the absence of these details, omnibus
allegations of improper form 17C would not answer the requirement of
furnishing material particulars, under section 83 of the Act. Even if the
25 (2005) 7 SCC 190 : AIR 2005 SC 3165
26 (2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207
27 (1987) 2 SCC 555 : AIR 1987 SC 1242
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contention of the petitioner that the documents filed along with the
plaint or petition, have to be treated as part of pleadings, the same
would still not answer the requirement of setting out material
particulars, detailing how the 17C forms are not in proper order or how
such discrepancies, available in the forms would vitiate the election.
[
34. In view of the above, the 17C forms marked as exhibits
P.11 to P.17 would have to be eschewed. In the circumstances, there
would not be any further need to go into the question of whether
these documents are to be treated as certified copies which are
admissible as evidence as opposed to true copies which, the learned
senior counsel contends, cannot be admitted in evidence, as
secondary evidence.
35. This would only leave the forms relating to polling
stations 6, 102 and 103. The discrepancies pointed out in these
forms have not resulted in any damage to the interests of the
petitioner. In fact, the petitioner had obtained more votes in these
polling stations. Further, none of the appropriate persons who can
speak about these documents had been examined and the
evidentiary value of these documents is highly doubtful. In any
event, it would not be possible to extrapolate these discrepancies,
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claimed by the petitioner, to the entire counting process, so as to
vitiate the entire election.
36. For all the aforesaid reasons, this Election Petition
must fail and is accordingly dismissed without costs.
As a sequel, pending miscellaneous petitions, if any, shall
stand closed.
____________________________
R. RAGHUNANDAN RAO, J.
RJS 33 RRR,J E.P.2 OF 2019 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO ELECTION PETITION No.2 of 2019 20-03-2024 RJS