Andhra HC (Pre-Telangana)
Koneru Nageswara Rao vs Vanama Venkateswara Rao And Ors. on 1 January, 1800
Equivalent citations: 1992(1)ALT30
ORDER Neeladri Rao, J.
1. This Election Petition was filed praying for recount of all votes counted in favour of R. and rejected votes, for declaration that the election of R.1 to Andhra Pradesh Legislative Assembly from 276 Kothagudem Assembly constituency is void and for further declaration that the petitioner is validly elected from the said constituency.
2. The elections for Andhra Pradesh Legislative Assembly were held on 22-11-1989. The petitioner and 1st to 7th respondents herein contested for 276 Kothagudem Assembly constituency. In the said election the petitioner and 1st to 7th respondents got the following votes:-
Petitioner : 49,267 votes
1st respondent : 49,514 votes
2nd respondent : 235 votes
3rd respondent : 316 votes
4th respondent : 524 votes
5th respondent : 1,067 votes
6th respondent : 1,468 votes
7th respondent : 240 votes
4,781 votes were rejected. 1st respondent was declared elected with a margin of 247 votes.
3. Though the petitioner alleged that 1st respondent incurred election expenditure exceeding limits prescribed in Section 77 of Representation of People's Act, 1951 (in short R.P. Act) and it amounts to corrupt practice Under Section 123(6) of R.P. Act, no evidence was adduced in regard to the same. Thus the issue No. 1 which was framed in regard to the same had to be held against the election petitioner.
4. The petitioner alleged various illegalities and irregularities on the part of the counting staff and pleaded that the same materially affected the result of the election. The said illegalities and irregularities as alleged in election petitions are:
1) the 746 votes referred to in Annexure VII to the petition were polled in favour of the petitioner. But the counting staff illegally counted them in favour of 1st respondent.
2) Though the 1021 votes referred to in Annexure VIII of the election petition were validly polled in favour of the petitioner they were wrongly rejected and
3) Though the 410 votes referred in Annexure IX to the election petition were invalid, they were counted in favour of 1st respondent.
The petitioner belongs to Telugu Desam Party (for short T.D.P.) while 1st respondent belongs to Congress-I. The petitioner pleaded that most of the counting staff are government employees, some of them are employees of Zilla Praja Parished and the rest are lecturers working in Government Colleges in Khammam District and the employees of the State Government are hostile to T.D.P. since 1983 on wards due to the reduction of the age of retirement from 58 years to 55 years and as the Salaries were not paid for 53 days strike period and the employees of the State Government threatened T.D.P. Government, just before elections held in November, 1989, that they would go on strike unless their demands are fulfilled. It was further pleaded for the petitioner that there was not sufficient accommodation at the place of counting and there was also insufficient illumination in counting hall. It was also alleged in the petition that the Returning Officer, (R.8) conducted in a partisan manner in favour of 1st respondent and he did not announce the votes polled for the candidates for each round and he did not write the result of votes polled on the black board and he did not cross-check the votes counted for the candidates at the counting tables. It was also pleaded that 8th respondent invalidated most of the votes validly polled in favour of the petitioner which were kept in the doubtful compartment at the counting tables and he did not head to the requests made by the counting agents of the petitioner to cross-check the votes counted for the candidates. The petitioner also pleaded that the signatures of the counting agents were not obtained for each round and the petitioner and his counting agents did not sign, in protest for the illegal counting of votes. It was further pleaded for the petitioner that a petition for recount of all votes was filed immediately after counting was completed and before declaration of result pointing out the defects in the counting of votes, and though R.8 acknowledged the receipt of that petition he did not pass any order nor he had given a copy of it. It was further alleged for the petitioner that after he and his counting agents left the counting hall in protest, he learnt that 8th respondent declared the result after 1.00 A.M. on 27-11-1989.
5. 1st respondent denied the alleged irregularities and illegalities in counting and also the allegations against 8th respondent. 1st respondent also pleaded that the election petitioner-was physically present through out the day and night when the counting took place and neither the election petitioner nor his counting agents raised any objections before 8th respondent. It was further pleaded for 1st respondent that central observers deputed by the Election Commission were present and they were watching the counting. The allegation in regard to insufficient lighting was also denied. It was further pleaded for 1st respondent that 8th respondent used to announce the votes polled to each contesting candidate and note down the same on the black board put in the counting hall, at the end of counting of each round, and cross-checking was done in the presence of candidates and their counting agents. It was also pleaded for 1st respondent that government employees were never instrumentalities of success of any candidate.
6. 8th respondent the Returning Officer filed counter denying illegalities and irregularities in the counting. He further pleaded that the petition for recounting was filed after he announced the results and signed in Form No. 20, and then he rejected the same for the reasons stated therein.
7. The petitioner was examined as P.W.1. P.Ws.2, 3, 5, 7 and 8 deposed that they were the counting agents of the petitioner at counting table Nos. 13, 8, 12, 2 and 4 respectively. P.W.4 deposed that he went into the counting hall on behalf of the petitioner but on the authorisation given by 7th respondent and he was at table No. 5. P.W.6 deposed that he was the counting agent of R.4 herein at table No. 7.
The 1st respondent had come into the witness box as R.W.1. R.Ws.2 to 8 deposed that they acted as counting agents of 1st respondent at table Nos. 2, 12, 13, 7, 8, 5 and 4 respectively. R.W.9 deposed that he acted as counting supervisor at table No. 7 pertaining to counting of votes of Kothagudam Assembly constituency and he stated that there was sufficient lighting inside the tent in which the counting had taken place and there were no irregularities in counting of votes at that time. P.W.2 is President of Telugu Yuvatha of Khammam District from six months prior to his deposition (he was examined on 2-7-91). He deposed that he had been an activist of T.D.P. and he was also President of Khammam District Co-operative Marketing Society. He also deposed that about 30 votes validly polled in favour of the petitioner were rejected on the ground that the distinguishing mark touched the margin/or on the ground that the mark is not clearly visible, while invalid votes when such mark was outside the margin were counted in favour of 1st respondent. P.W.3 is a post Graduate in Sociology of Bhopal University. He deposed that he had been an activist of T.D.P. from the beginning. He also deposed that about 74 votes which were polled on the symbol of the petitioner were wrongly rejected and about 19 votes which were invalid were counted in favour of 1st respondent and 95 votes which were validly polled infavour of the petitioner were put in the bundles of 1st respondent and counted in his (R.1's) favour. P.W.4 is the Joint Secretary of Telugu Nadu Trade Union Council and a member of Kothagudem Notified Area Committee. He deposed that about 130 votes which were validly polled on the symbol of petitioner were rejected, 25 votes which were polled infavour of the petitioner were wrongly bundled and counted in favour of 1st respondent, and 15 votes which were invalid were counted infavour of 1st' respondent. P.W.5 was the President of Khammam District T.D.P. and he is also the Chairman of the Trust Board of Shri Sita Rama Swamy Devasthanam of Bhadrachalam. He deposed that about 65 votes validly polled for the petitioner were wrongly rejected either on the ground that the entire mark was not within the margin or that the impressions are not clearly visible. He further deposed that about 45 votes which are invalid were counted in favour of 1st respondent. He also stated that though there are more than one mark on different symbols including the symbol for 1st respondent, they counted in favour of 1st respondent. P.W.6 deposed that about 20 votes polled in favour of the petitioner were bundled in favour of 1st respondent, and they were counted in his favour, and about 60 votes which were validly polled in favour of the petitioner were rejected either on the ground that the Swastik mark was not visible or for other reasons. He also stated that about 40 invalid yotes were counted in favour of 1st respondent. P.W.7 has been the President of Telugu Desam Committee of Gulpena village. He deposed that about 30 votes polled in favour of the petitioner were rejected though they were validly polled in his favour either on the ground that the Swastik mark is not clearly visible or there were two marks on the same symbol or that the mark is just touching the margin. He further deposed that 30 votes which were invalid on the ground that there were marks on different symbols, were counted in favour of 1st respondent on the ground that the mark on the symbol of 1st respondent was more prominent. P.W.8 is the Secretary of Chandraguda Mandal T.D.P. He deposed that about 80 votes validly polled in favour of the petitioner were wrongly rejected either on the ground that the Swastik mark was not clearly visible or that the mark was touching the margin. He further stated that about 50 votes validly polled to the petitioner were bundled and counted in favour of 1st respondent and about 40 votes which were invalid were counted in favour of 1st respondent even though most of the mark was outside the margin of the symbol of 1st respondent.
8. The learned counsel for the election petitioner urged as under.
The material facts in regard to the three types of irregularities committed at the time of counting were referred to in Annexures VII to IX to the election petition. The irregularities committed in regard to each polling station, table number, round number and the number of votes in regard to which irregularities were committed are given in those annexures. P.Ws.1 to 8 had spoken to in regard to some such irregularities. Further the election petitioner had given a petition to 8th respondent the Returning Officer requesting for recounting and in the said petition he had referred to irregularities at the time of counting. There was insufficient lighting and there was not sufficient accommodation for the counting agents to observe and the counting staff were hostile to the party to which the petitioner belongs. Thus there is prima facie evidence in regard to the materials alleged about irregularities in counting and there are contemporaneous documents in support of the same. Thus there is a prima facie case for ordering recounting.
9. The learned counsel for 1st respondent urged as under:
In the belated petition praying for recounting which was filed before 8th respondent, it was not even alleged that some invalid votes were counted in favour of 1st respondent, and thus Annexure IX is an after-thought. Though the election petitioner as P.W.1 deposed that by the time he filed the petition before 8th respondent praying for recount, his counting agents informed him about the alleged irregularities in counting, he deposed in his cross-examination that he had not referred to the data in Annexures VII to IX in the complaint given by him to the Returning Officer, and he merely stated therein that there were irregularities in counting. If infact there are irregularities in counting i.e., improper rejection of votes polled in favour of R.1 or mixing up of the votes polled in favour of the petitioner in the bundles of 1st respondent and thus counted in favour of 1st respondent as alleged for the election petitioner, and when it was stated by P.Ws.2 to 8 that they had given the slips on which they had noted the irregularities, to the election petitioner after the counting was over, he would have given those particulars in the petition requesting for recounting, and he would have filed the alleged slips written by P.Ws.2 to 8 either alongwith the petition filed before 8th respondent praying for recounting, or alongwith this election petition and no explanation is given for non-production of the same even at the time of the evidence. Hence no credence can be given in regard to the evidence either of the petitioner as P.W.1 or those of P.Ws.2 to 8 who are interested witnesses about the alleged irregularities. The various particulars given in Annexures VII to IX are only imaginary. The election petitioner was a Minister in our State Government by the date of elections, and many of the witnesses for petitioners occupied important positions in their party. In such a case they would not have kept quiet if the votes validly polled in favour of the petitioner were kept in the tray intended for the votes of 1st respondent, and they would have certainly raised an objection regarding the same. If their objections in regard to the same were not heeded to by the Counting Supervisors, they would have brought it to the notice of the Returning Officer and even if the Returning Officer was partisan it would have been brought to the notice of the Central observers, deputed by the Election Commission, who were present in the counting place. As the petitioner was a minister by the date of the election, the Returning Officer would not have kept quiet without taking steps if such glaring irregularity was brought to the notice, and even if 8th respondent was adamant, the petitioner who was at the counting place through out would have taken it to the notice of the Central observers. The petitioner as P.W.1 has not stated that he complained about it either to the Returning Officer or the Central Observers. The doubtful votes were sent by the counting staff to the table of Assistant Returning Officer. The latter, in the presence of the candidates, finally decided as to whether each one of them is valid or not. No one was examined on behalf of the petitioner to prove that he was present at the table of the Assistant Returning Officer and he improperly rejected the votes though polled validly in favour of the petitioner. Thus there is no credible evidence to support the plea of the petitioner that some votes polled in favour of the petitioner were improperly rejected, or some votes validly polled in favour of the petitioner were wrongly counted in favdur of R.1. The improper rejection of votes in favour of 1st respondent was not even referred to in the petition filed before 8th respondent praying for recounting.
10. It was further stated for 1st respondent as under:
The evidence of R.W.9 an independent witness discloses that there was sufficient illumination in the tent where the counting had taken place, and there were no irregularities at the time of counting at his table. Though hostility was alleged against N.G.Os., no such hostility was alleged against the Gazetted Officers. R.W.9 is a Gazetted Officer. Nothing is alleged against Central Observers. Thus there are no grounds for ordering recount.
The remaining issues i.e., the issues 2 to 5 are as under:
2) Whether the allegations in paras 7(i) to 7(vi) are vague and therefore deserve to be struck off.
3) Whether irregularities were committed in counting the votes as alleged in para 7(i) to 7(iv) of Election Petition.
4) Whether re-count has to be ordered in view of the allegations in para 7.
5) Whether the election of R.1 is liable to be set-aside. If so whether the petitioner should be declared as validly elected candidate.
Issues 2 to 4:-
Three types of irregularities in regard to the counting which are alleged for the petitioner are 1) Some of the votes polled in favour of the petitioner were wrongly counted in favour of 1st respondent. 2) Some of the votes validly polled in favour of the petitioner were wrongly rejected and 3) some of the votes which are invalid were wrongly received and counted for 1st respondent. The particulars of the same were referred to in Annexures VII to IX filed alongwith the petition.
If the allegations of irregularity or illegality in counting are pleaded adequately in the election petition and the court trying the petition is prima facie satisfied that the making of an order for recounting is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties then the court may order recounting vide Beliram v. Jai Beharilal, AIR 1974 SC 283. The learned counsel for the election petitioner contended that all the necessary details are given in the Annexures and even a petition praying for recount was filed before the Returning Officer under Rule 63 of Conduct of Election Rules and thus there is even contemparaneous evidence in support of the said allegations. But the learned counsel for 1st respondent submitted that the particulars given in Annexures 7 to 9 are merely imaginery and those particulars are not given in the petition filed under Rule 63 of Conduct of Election Rules and even the alleged slips on which the counting agents of petitioner and others were said o have noted the irregularities at the time of counting are not filed and no explanation is given for non-production of the same and thus there is no contemporaneous evidence to support the allegations of irregularities in counting and they are mere after-thoughts.
11. The petition filed by the election petitioner before the Returning Officer requesting for recount is not marked. But on the basis of the written statement of the Returning Officer it can be stated that alleged irregularity of improper reception of the votes polled in favour of 1st respondent was not referred to in the said petition. Whether the said petition was filed before or after the result was declared will not be of importance for disposal of this petition. But suffice it to observe that the said petition was given on the very night of the counting. Thus if there was irregularity of counting the invalidates polled in favour of 1st respondent, it would have found a place in the said petition. Such an irregularity was not even whispered in the said petition. So it is difficult to believe the case of the election petitioner that the votes referred in Annexure IX were wrongly counted in favour of 1st respondent.
12. It is true that the particulars in regard to Polling Station number, Table number, Round number, and the number of votes said to have been polled in favour of petitioner and illegally counted in favour of 1st respondent, and the votes polled in favour of the petitioner but said to have been improperly rejected were given in the Annexures VII and VIII. P.Ws.2 to 8 the counting agents deposed in support of some of those irregularities.
13. It is in the Evidence of P.W.5 that at the time of the counting at various stages the doubtful votes were kept in separate tray and they were sent to the table of Returning Officer or Assistant Returning Officer. It is in the written statement of the Returning Officer that all such doubtful votes were scrutinised by the Assistant Returning Officer in the presence of the candidates present and the said Assistant Returning Officer had taken the decision in regard to each of those doubtful votes as to whether it is valid or invalid. But the petitioner as P.W.1 who was admittedly present at the time of counting had not stated that he was present at the time of scrutiny by the assistant Returning Officer in regard to doubtful votes. No one on behalf of the petitioner was examined to the effect that he was present and the Assistant Returning Officer improperly rejected the votes referred to in Annexure VIII, even though they are valid. The evidence of P.Ws.2 to 8 is only to the effect that the votes polled in favour of petitioner though validly polled were rejected. But it is not a case where a decision in regard to the rejection of votes was taken by the counting supervisors at the tables at which P.Ws.2 to 8 were present. They cannot state that all the votes, polled in favour of the petitioner, which were kept in the tray for doubtful votes were rejected by Assistant Returning Officer as they were not present at the time of scrutiny of such votes by the Assistant Returning Officer. The evidence of P.Ws.2 to 8 is to the effect that they had given the slips on which they had written the particulars of the irregularities in counting, after the counting is over. P.W.1 deposed in his cross-examination that the particulars in Annexures VII to IX were available by the night of 26-11-1989 and he was given that information after the counting was over on 27-11-1989 at 1:00 A.M. The said slips are not produced even during the course of evidence. No explanation is given for the non-production of the same. When P.W.6 was enquired as to whether he requested P.W.1 to show the slip, he replied that P.W.1 informed him that the said slip is not available. Even P.W.1 admitted that he had not given the particulars of the Annexures VII to IX, in the petition filed by him before the Returning Officer wherein he requested for recounting. No explanation is given for not furnishing those particulars in the said petition when according to the petitioner they were available with him by then. As already observed when it was the Assistant Returning Officer who finally decided about the validity or otherwise of each of the doubtful votes sent to him, none on behalf of the petitioner deposed that he was present at the time of the said scrutiny and the votes referred to in Annexure VIII were wrongly rejected.
14. The other allegation is that some of the votes polled in favour of the petitioner were kept in the tray in which the votes polled for 1st respondent are kept and thus they were counted in favour of 1st respondent. P.W.8 deposed that when there were irregularities in counting as alleged by him had taken place, there was an attempt to stall the counting. P.W.3 deposed that the petitioner complained to the Returning Officer about such irregularities and then the Returning Officer brushed aside the complaint of P.W.1 by saying that the enquiry will be made into the irregularities afterwards. The Returning Officer extracted the reasons given by him in rejecting the request for recount and therein he observed that:
"As the agents of the petitioner were present in all counting tables who never raised any objection during the entire 12 rounds besides his presence, the objection that his bundles of votes meddled or mingled with the votes of Hand is not reasonable. Hence the objections raised by Shri Koneru Nageshwara Rao (Election Petitioner) Contesting candidate sponsored by T.D.P. to 276 Assembly Constituency are rejected into to as they appeared to be frivolous and not reasonable."
P.W.4 admitted that the Central Observer appointed by the Election Commissioner and the District Collector were present at the counting premises. Of course it is a case where the counting of seven Assembly Constituencies and Kothagudem Parliamentary constituency had taken place at a time in the same premises.
15. On the basis of the evidence on record it can be stated as follows:- The election petitioner was a minister of the Andhra Pradesh State Government by the date of the assembly elections in 1989. P.Ws.2 to 8 who were the counting agents were occupying responsible posts in their party. The Central Observer deputed by the Election Commissioner and the District Collector were in the premises where the counting had taken place. The particulars of irregularity as referred to in Annexures VII and VIII were not stated in the petition given to the Returning Officer praying for recount though it was stated that by- the time the said petition was given those particulars were available. The slips on which P.Ws.2 to 8 were said to have noted the irregularities in counting and which were said to have been given to P.W.1 are not produced and no explanation is given for non-production of the same. No one is examined for the petitioner to state that he was present when the Assistant Returning Officer scrutinised the doubtful votes sent to him and that the votes referred to in Annexure VIII were improperly rejected. R.W.9, gazetted officer, was counting supervisor at table No. 7. He denied allegations;; of irregularities in counting.
16. Now it has to be seen whether on the basis of the above facts can the case of the petitioner that the votes referred to in Annexure VII were polled in favour of the petitioner and they were illegally counted in favour of 1st respondent and the votes referred to in Annexure VIII were polled in favour of the petitioner but improperly rejected, be prima facie accepted.
17. The counting agents on behalf of the contested candidates are permitted in the counting hall to ensure that the irregularities in counting do not take place. No counting agent will keep quiet if the votes polled in favour of one are counted in favour of another. He will naturally protest before the counting supervisor. If the counting supervisor does not rectify such irregularity and if he is adamant, it will be naturally Brought to the notice of the Chief Election Agent or the candidate present and also to the Returning Officer. P.W.3 deposed that when the petitioned complained to the Returning Officer about the irregularities, the Returning Officer brushed aside the complaint by saying that the enquiry will be made into the irregularities afterwards. If in fact the votes polled in favour of one candidate were bundled with the votes of another candidate, the Same can be easily verified and there cannot be difference of opinion about the same. In such a case no counting agent will keep quiet without protest. When such an irregularity is brought to the notice of the Returning Officer, he will immediately verify the same and if such irregularity was there, and if it was not rectified even when it was brought to the counting supervisor by the counting agent, the Returning Officer would certainly get it rectified and he would also warn the concerned counting staff not to repeat such irregularities. But no Returning Officer would go to the extent of stating that he would make enquiry in regard to the same (i.e., mixing of votes) later. In any case the Returning Officer, who is a senior officer will not given such a reply to any candidate and much more so when that candidate was a minister by then. If the Returning Officer had give such a reply, it would have been brought to the central (sic) who was deputed by the Election Commissioner and who was present at the premises where the counting had taken place. The central observer was deputed to see that irregularities or illegalities were not committed in the counting. Thus when the central observer was deputed for that purpose, he would have certainly verified the complaints of irregularity of mixing of the votes polled in favour of one with the votes polled in favour of another. The Returning Officer also observed, when in the petition praying for recount it was alleged that some of the votes polled in favour of 1st respondent and counted to the tatter's account, that such irregularity was not brought to his notice. It is very difficult to believe such an allegation for no one will allow the counting to be continued if such mixing is done even when it is protested.
Further as the central observer and the District Collector were also present, it would have been set right if such irregularity was committed. Thus when the slips which were said to have been written by P.Ws.2 to 8 in regard to the alleged irregularities were not produced, and when the particulars in the Annexure VII were not given in the petition filed before the Returning Officer praying for recount, it is difficult to believe the case of the petitioner that the votes polled in his favour were mixed with the votes polled in favour of 1st respondent and counted to the latter's account.
18. As already stated petitioner had not deposed that he was present at the time of scrutiny of the doubtful votes by the Assistant Returning Officer, nor any one else on behalf of the petitioner stated that he was present there. Thus there is no evidence to prove that any of the votes polled in favour of the petitioner were wrongly rejected by Assistant Returning Officer. Further even in the petition filed before the Returning Officer, the particulars in Annexure VIII were not referred to. The slips said to have been prepared by P.Ws.2 to 8 as already observed were not produced. But it was merely stated interalia in the petition filed before the Returning Officer that some of the votes polled in favour of the petitioner were improperly rejected. It is vague and not precise. Thus there is no prima facie evidence that the votes polled in favour of the petitioner were improperly rejected.
19. But the learned counsel for election petitioner submitted that when the margin is relatively little and/or other legal infirmities or factual flaws over around, recount is proper, and in support of his contention he relied upon decision in Chanda Singh v. Shiv Ram, It was elaborated for the election petitioner as under.
20. There was not sufficient illumination at the counting place. There was not sufficient place for the counting agents to sit properly and to observe the counting, as the place was congested. The N.G.Os were hostile to Telugu Desam Party to which the election petitioner belongs as the age of retirement was reduced from 58 years to 55 years and as the salary for the 53 days strike period was not paid. The government employees and the employees of Zilla Praja Parishad, teachers and lecturers etc., were appointed as counting staff. By 5.00 P.M. on the date of counting it had come in news that in 90 Assembly constituencies and in majority of the parliamentary constituencies in Andhra Pradesh State the Congress-I was leading. In view of the hostility to the Telugu Desam Party and by taking advantage of scarce illumination and congested sitting the counting staff resorted to irregularities adverse to the election petitioner. It was not alleged for 1st respondent that the election petitioner had become unpopular. He got a majority of 9,000 votes in 1983 elections, and 10,000 votes in 1985 elections, and even in 1978, Janata Dal candidates won from this constituency. And thus in the three earlier assembly elections, Congress-I candidate did not win from this constituency. In view of that factual back ground, and as the lead is slender, it is justifiable to order recount to do complete justice between the parties.
21. The learned counsel for 1st respondent submitted as under:-
The mere slender margin is not a ground for ordering recounting. In the case considered in Bhabhi v. Sheo Govind, the margin was 97 votes, while in the case reported in V. Narayan v. Semmalai, the margin was only 9 votes, after postal ballots were taken. But still it was stated that unless the material facts about the allegation of irregularities in counting were alleged and proved, there is no justification for ordering recounting.
In the light of the judgments of the Supreme Court in Belram v. Jai Beharilal, (1 Supra) Chanda Singh v. Shiv Ram, , V. Narayan v. S. Semmalai, , Ram Sewak v. H.K. Kidwai, , Jagjit Singh v. Kartar Singh, , Jitender Bahadur v. Krishna Behari, , Hardwarilal v. Kanwal Singh, , Sumitra Devi v. Sheoshankar, , Jyoti Basu v. Debi Ghosal, , Azhar Hussain v. Rajiv Ghandhi, , Bhagwati Prasad v. Rajeev Ghandih, , Dhartipakar v. Rajiv Gandhi, , P.K.K. Shamsudeen v. Kam. M. Mohindeen, , M.J. Zakharia Sait v. T.M. Mohammed, , Manupal Singh v. Surinder Singh, , Udav Singh v. M.R. Scindia, , and our High Court in T. Penchalaiah v. Election Court, 1990 (1) ALT 669. It can be stated thus:-
"the order for recount or inspection of voted ballot papers touches upon the secrecy of the ballot. The order for recount should not be made lightly or as a matter of course. The same would be justified where all the material facts of the allegations in regard to irregularities or illegalities in counting are pleaded adequately in the election petition and proved and if the court is prima facie satisfied that the making of such an order is absolutely necessary to decide the dispute and to do complete and effectual justice between the parties. Mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the count of ballot papers will not be sufficient to support an order or recount of inspection."
22. After referring to the various decisions of Supreme Court Jagannadha Rao, J., (as he then was) held in T. Penchalaiah v. Election, 1990 (1) ALT 669 Court that the cases where recount is prayed for, can be divided into four categories. 1) The category of cases where the allegations in the election petition are absolutely vague, 2) the cases where some details are given but they are not sufficient, 3) the category of cases where the facts are given in great detail/but they have been made only for the purpose of satisfying the principles laid down in certain rulings of the Supreme Court inasmuch as the basis of the facts is not specified or there is no contemparaneous documentary evidence to give credence to the correctness of the so-called minute details and 4) the cases where details given in the petition are sufficient and they are truthful and they are also substantiated in the evidence.
23. While the learned counsel for the election petitioner contended that his case comes under the category No. 4 referred to above. It is urged for 1st respondent that it comes under category No. 3.
24. There is no contemparaneous documentary evidence in regard to the allegation of improper reception of votes in favour of 1st respondent. The slips on which the irregularities in counting said to have been written at the time of counting, are not produced, and those particulars were not given in the petition filed before the Returning Officer, praying for recount. Thus there is no contemparaneous documentary evidence even in regard to the particulars referred to in Annexures VII and VIII. Further on discussion of the evidence observed that it is difficult to believe the version that the votes of the petitioner were mingled with the votes of 1st respondent and though it was protested to Returning Officer, the latter merely stated that it would be enquired later. Hence it can be stated that this case comes under 3rd category referred in T. Penchalaiah v. Election Court (18 Supra). Thus even though the margin is only 247 votes and the invalid votes are to the tune of 4, 781 it is not a justifiable case for ordering recount.
25. The learned counsel for petitioner relied upon H.R. Gokhale v. Bharucha, AIR 1969 SC 177 to urge that even though there is a presumption in regard to the validity of the votes that were counted in favour of one or the other candidates, there is no presumption that the votes which are declared as invalid are rightly declared as invalid as per the rule.
The votes have to be declared as invalid on various grounds as per rules. To illustrate, if the swastik mark is on more than one symbol or it bears any endorsement of the voter it has to be declared as invalid. The Returning Officer or the Assistant Returning Officer declares a vote as invalid, after perusing the voted ballot paper, by keeping in view the relevant rules. The decision of the Returning Officer or the Assistant Returning Officer in regard to the same is not final, and it is subject to judicial review. Hence if any candidate on his agent challenges the decision of the Returning Officer/Assistant Returning Officer in declaring any voted ballot paper as invalid, the same can be perused by the court in the election petition and decide as to whether the said decision is correct or not. If the election petitioner gives particulars of such votes, and if the court finds that such an allegation is prima facie established, then the court can inspect those voted ballot papers to determine the correctness of the decision of the Returning Officer/Assistant Returning Officer in regard to the same. But if the election petitioner had not given the number of ballot paper in regard to such votes then a question arises as to whether it is necessary to inspect all the votes which were declared as invalid.
26. If any objection is raised in regard to the correctness of the decision of the Returning Officer/ Assistant Returning Officer in declaring any vote as invalid, will it not be desirable to keep such questioned papers separately, just as in case of tendered votes. It will serve two purposes. If such votes are kept separately; then (1) it supports the case of the election petitioner, that he or his agent challenged the decision in regard to such votes and in view of the truthfulness of such allegation (2) the court can inspect those invalid votes which are kept separately. Even if any candidate challenges the decision of the Returning Officer or Assistant Returning Officer that a doubtful vote which was sent to him is valid, the truthfulness of the allegation that a vote is improperly received can be known and the court can inspect them if they too are kept separately/then if there is a rule to keep such votes separately. If no vote or votes were kept separately as the votes challenged in regard to the decision of validity, then if any one comes up with such an allegation in the election petition it can be held that there is no contemporaneous material to support such an allegation. But when such vote or votes are kept separately, the very fact that they are kept separately supports the contention that the decision in regard to the same was challenged and then it is a mere verification by the court.
It is not brought to the notice of this court as to whether there is a rule to the effect that all the doubtful votes in regard to which the decision of the Returning Officer/Assistant Returning Officer was challenged, have to be kept separately. If there is no such rule it is for the Central Government to consider as to whether it is desirable to have a rule whereby the doubtful votes have to be kept separately when the decision of the Returning Officer/Assistant Returning Officer declaring it as valid or invalid was challenged by the contesting candidate or his agent at the time of decision in regard to the same, for thereby the necessity of adducing evidence in regard to the same will not arise, and as it will be a mere case of improper reception or rejection of votes, it can be decided by inspection of such votes by the Court.
In Arun Kumar Bose v. Mohd. Furkhan Ansari when the election petitioner challenged the decision in rejecting the voted ballot papers on the ground that they did not bear the signature of the Presiding Officer, the elected candidate therein admitted in the counter that the 74 ballot papers referred to by the election petitioner were rejected on that ground, and he further pleaded that 31 ballot papers of other contesting candidates including three votes polled in his favour were also rejected on the same ground. Thus when there was no dispute about the rejection of the ballot papers on that ground, the court ordered inspection of the same, and then in view of the facts in that case it was held that they were wrongly rejected. Thus if there is a rule whereby such of the doubtful votes in regard to which the decision of the Returning Officer/Assistant Returning Officer declaring it as valid or invalid was challenged at the time of the said decision, have to be kept separately, then the scope of enquiry in regard to such allegations in an election petition can be limited, and it will also dissuade any one to come up with allegation of improper reception or improper rejection unless it is established that inspite of the challenge such votes were not kept separately. When such a decision is being given by senior officer who was appointed as Returning Officer/Assistant Returning Officer, one may very rarely come upon a case of such authority refusing to keep them separately.
27. As I held that no one is examined on behalf of the petitioner to prove that he objected to the decision of the Assistant Returning Officer in declaring the votes polled in favour of petitioner as invalid, the question of inspecting the ballot papers which were rejected does not arise. Hence I find that the election petitioner had not prima facie established the allegations in paras 7(i) to 7(iv) of the election petition in regard to irregularity in counting and hence there are no justifiable grounds to order recounting. As entire evidence is considered, no purpose will be served in striking of the allegations in paras 7(i) to 7(iv).
Issue No. 5:-
28. As the recount is not ordered and as 1st respondent got more votes than the votes polled to the election petitioner the election of 1st respondent is not liable to be set-aside. Hence the question of declaring the petitioner as validly elected candidate does not arise.
29. In the result the election petition is dismissed, but the parties have to bear their respective costs.