Andhra HC (Pre-Telangana)
Sri Valluri Narayana Murthy vs Sangita Venkata Reddy (China Kapu) And ... on 12 November, 1991
Equivalent citations: 1992(1)ALT296
JUDGMENT Neeladri Rao, J.
1. Petitioner and R-1 to R-7 contested from 52, Alamuru Assembly Constituency in the General Elections held for Andhra Pradesh State Legislative Assembly on 22-11-89. R-1 secured 52,687 votes while the petitioner got 51,709 votes and the votes secured by R-2 to R-7 are in hundreds only. R-1 was declared elected. He got majority of 978 votes over that of the petitioner.
2. The petitioner filed this E.P. by alleging various irregularities which according to him materially affected the result of the election of R-1. On the basis of the pleadings in this Election Petition and the Recrimination Petition, the following issues were framed:
(1) Whether the allegations in para 6 of the Election Petition are true? If so, whether they materially affected the result of the election?
(2) Whether the conduct of simultaneous elections for the Assembly as well as Parliament materially affected the result of the Election Petition?
(3) Whether the staff referred to in paras 9 and 12 of the Election Petition acted prejudicially against the Election Petitioner and/or in favour of R-1?
(4) Whether the votes referred to in Annexure-III are wrongly rejected?
(5) Whether all or any of the votes referred to in Annexure-IV ought to have been rejected? If so, whether any or all of them were counted in favour of R-1?
(6) Whether there was rigging in Polling Stations 17, 18, 25, 26, 36, 40, 73, 76, 80, 88 and 105? If so, whether the votes polled in the above polling stations have to be invalidated?
(7) Whether the election petitioner committed corrupt practices mentioned in Scc.l23(8) of the Representation of Peoples Act, 1951.
(8) Whether the election petitioner made out a case for ordering scrutiny and/or recount.
(9) Whether the election of R-1 has to be declared as invalid? If so, whether the election petitioner has to be declared as elected.
Issues 6 and 7 were framed on the basis of the pleadings in the recrimination petition and hence they do not arise for consideration at this stage.
3. Issue No. 1:
In para 6 of the election petition it was alleged that there had been no proper account of the ballot papers issued and the details of ballot papers which are not accounted for as entered in Form 16 has boon given in Annexure-I and the failure to account for the total number of ballot papers along with other circumstances in the case materially affected the result of the election petition. It was further, alleged therein that some of the 16 forms submitted by the Presiding Officers are manipulated and concocted.
The alleged discrepancies as per Annexure-I were explained in detail in para 4 of the written statement of R-1, and in support of the same, Ex.B-1 the notice referring to missing numbers and defective ballot papers in regard to this constituency for 1989 assembly elections was filed. In view of the said material, in fairness to the learned counsel for the election petitioner, it has to be stated that it was submitted for the petitioner that there is no material to support the allegations which are the basis for this issue. Hence this issue is held against the petitioner.
Issues 2 and 3 are also not pressed and hence they are held against the petitioner.
4. Issues 4, 5, 8 and 9:
It was alleged for the election petitioner that the ballots referred to in Annexure-III to the Election Petition though validly polled in favour of the petitioner were wrongly rejected and the votes referred to in Annexure-IV to the Election Petition though invalid were wrongly received and counted in favour of R-1. On Annexures III and IV the particulars with P.S. No., round No., table No., total invalid votes, valid votes of the petitioner which were said to have been rejected were given. Serial number of the ballot papers were also noted in regard to some polling stations. The total votes which were alleged to be wrongly rejected as per Annexure-III are shown as 1040 while the total votes which were alleged to be invalid and counted in favour of R-1 as per Annexure-IV were shown as 1130. P.W. 1 the Chief Election Agent of the petitioner and P.Ws.2 to 6 who were the counting agents of the election petitioner at Tables 2, 8, 3, 9 and 5 were examined in support of the case of the petitioner. The Returning Officer was examined as P.W.7.
5. R.W. 1 the Chief Election Agent, R.W.2 the Counting Agent of R-1 at the table of Assistant Returning Officer, and R.W.3 the counting agent of R-1 at Table No. 11 were examined for R-1. They denied the case of the petitioner.
6. The learned counsel for the election petitioner urged as under:
P.Ws. 1 to 6 deposed that some of the votes polled in favour of the petitioner were wrongly rejected. Even R.W. 1 deposed that some of the rejected votes were for the reason that the electoral mark was just touching the place allotted to each of the candidates and such votes were in favour of all the contesting candidates. He further deposed that less than 1000 such votes polled in favour of R-1 were rejected. Thus, it establishes that some of the votes were rejected merely on the ground that the stamp touched the margin. On inspection of the said ballot papers only, it can be established that they are wrongly rejected. Hence, order has to be passed for scrutiny of the invalid votes and for recounting, especially when the difference of votes polled between R-1 and petitioner is far less than the total number of votes which were invalidated.
7. The learned counsel for R-1 contended as under:
The allegations in regard to these two categories are vague and they are not precise. Some imaginary figures are given in Annexures-III and IV to make it appear that in fact some votes polled in favour of the election petitioner were wrongly rejected and some votes were wrongly counted in favour of R-1. Though P.Ws. 2 to 6 deposed that they made a note of the irregularities observed by them at the counting, they are not marked. Though P.W. 1 deposed that he presented Ex.A-1 before R 8 and the letter refused it, it was not even suggested to R-8 when he was examined as P.W.7 and when he denied it in his written statement. The fact that the election petitioner had given the serial numbers of the ballot papers pertaining to Parliament elections in Sl. Nos.5 and 101 in Annexure III and SI. Nos.5, 100 and 101 in Annexure IV establishes that the petitioner had come up with some imaginary numbers of figures in Annexures III and IV. Hence there are no grounds for ordering scrutiny or recounting.
8. The grounds on which scrutiny/inspection or recounting can be ordered are well established. After considering the various decisions, the Supreme Court listed out six conditions in Bhabi v. Sheo Govind, and they are as under:
(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 materials 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."
It is manifest from the above that it is necessary for the election petitioner to come up with adequate statements of material facts in regard to the allegations of wrongful rejection or reception of votes or mistakes if any in Arthmetical counting. Such allegations should not be vague and general and they have to be precise. Credible probative material has to be placed to support those factual averments to establish that those averments were made in good faith. The court has to prima facie satisfy on the material placed before it regarding the truth of the allegations made for recount. The court has to come to the conclusion that the order to grant inspection is necessary and imperative to do full justice between the parties. But the inspection cannot be ordered when it is an attempt to make a roving enquiry to fish out some material for declaring the election to be void.
9. The Supreme Court felt it necessary to have the above safeguards before ordering inspection as such inspection is contrary to the secrecy of ballot which is sacrosanct. Further, if inspection or recount is ordered liberally it sets at naught electoral process and causes a sense of instability and uncertainty amongst duly elected candidates. The mere fact that the difference in votes polled in favour of the elected candidate and the election petitioner is small is not a ground to presume that there are some irregularities either in receiving the votes and counting in favour of elected candidate or that some of the votes polled in favour of the election petitioner i.e. defeated candidate are wrongly rejected. Hence the inspection or recount cannot be ordered as a matter of course. When inspection was ordered in the election petition without applying its mind to the conditions adumberated in the various decisions referred to the said order was set aside in Bhabi v. Sheo Govind (1 supra).
10. Keeping in view the above principles, the material on record has to be considered. The details of the alleged wrongful rejection of the votes both in favour of the petitioner were given in Annexure-III while the details of the votes which were counted in favour of R-1, but which ought to have been rejected as invalid according to the petitioner are given in Annexure-IV. It can be stated on the basis of the particulars given therein that necessary material facts are pleaded. But the point that arises for consideration is as to whether those averments are true or whether they are merely imaginary.
11. In Ahnexures III and IV it was stated that the facts referred to therein are true to the information and belief of election petitioner. But it is not stated therein as to who had given the said information. The election petitioner had not come into the witness box to depose about the basis for the facts referred to in Annexures III and IV. P.W. 1 the Chief Election Agent of the petitioner had not deposed that he was present along with the election petitioner when instructions were given for drafting the election petition. P.Ws.2 to 6 deposed that during the process of counting they had written particulars of various irregularities on pieces of paper or book. P.Ws.2, 3 and 5 deposed that they had given them to P.W. 1 in the counting hall before counting was over. P.W.4 deposed that he had given it to P.W. 1 on that day and it was returened to him and it was lost. P.W. 1 had not deposed that the counting agents had given him the record of irregularities noted by them during the counting process. They are not filed in court. If such record was maintained during the process of counting, they would have been naturally given to the Chief Election Agent or Chief Counting Agent and they would have been passed on to the defeated candidate and they would be preserved for as it is necessary material for drafting the election petition and also for proving those irregularities. But no explanation is forthcoming for non-production of the said record if infact it was maintained. So adverse inference has to be drawn for not producing the same.
12. If there were such irregularities, counting agents and the Chief Election Agent/election agent would have complained about the same and request for recount would have been made before the result was declared. P.W. 1 deposed that he tendered Ex.A-1 at 2.30 a.m. on 27-11-89 to R-8, but the latter refused it. The said allegation was denied by R-8 in the written statement. No request was made for the election petitioner for permission to cross-examine R~8 who was examined as P.W.7 to establish that infact Ex.A-1 was tendered to him but he refused to receive it. R-8 is of the cadre of Deputy Collector. He was a Gazetted Officer even by the date of election. Though some allegations were made against N.G.O's to contend that they were hostile to TDP to which the petitioner belongs nothing is alleged against the Gazetted Officers in the State. None of the witnesses for petitioner has stated anything to hold that there was reason for P.W.7(R-8) to be hostile to the election petitioner or to work for the success of R-1, By the date of thiselection,theelection petitioner was sitting M.L.A. Hence the version of P.W. 1 that R-8 refused to receive Ex.A-1 cannot be believed.
13. It was not even recited in Ex.A-1 that though some of the votes polled in favour of R-1 were invalid they were wrongly received. If infact that there was such irregularity as now alleged and if Ex.A-1 was prepared before the result was declared, such an irregularity would have been mentioned in Ex.A-1. No explanation is given for failure to mention such irregularities in Ex.A-1. But though it was stated interalia in Ex.A-1 that some of the votes polled in favour of the petitioner were counted in favour of R-1, such irregularity was not alleged in this Election Petition.
14. At each counting table, doubtful votes wore kept in separate tray and they were sent to the Assistant Returning Officer. R.W.2 deposed that he represented R-1 at the said table and then six or seven counting agents appointed on behalf of the petitioner and other candidates were at the said table. He further deposed that the Assistant Returning Officer after scrutiny of the doubtful votes had entered the details of the rejected and valid votes out of those doubtful votes in Form II of Form 16. Even P.W.4 deposed that there was no rejection of votes at the counting table and all the doubtful ballots were bundled together for scrutiny and decision of the Returning Officer. Even R-8 in the counter stated that it was the Assistant Returning Officer who had taken final decision of validating or invalidating the doubtful votes sent to him. P.Ws.2 to 6 were only at the counting tables and they were not at the table of the Assistant Returning Officer. Hence they cannot know as to which of the votes were ultimately invalidated and the reasons for such invalidation. Even P.W. 1 had not stated that he was present at the table of the Assistant Returning Officer when the doubtful votes were scrutinized by him. Thus there is not even oral evidence about the reasons for invalidation of the votes when P.Ws. 1 to 6 could not know as to which votes were invalidated they cannot say as to whether they were rightly or wrongly rejected.
15. Further there is force in the submission for R-1 that the serial numbers of ballot papers noted against Sl.Nos.5 and 101 in Annexure-III and 5 and 100 and 101 in Annexure IV are imaginary as those Sl. Nos. pertain to Rajamundry Parliamentary Constituency of which Alamur Assembly Constituency is a segment and they do not pertain to Assembly constituency. When the particulars in regard to those Sl.Nos. are not correct, it has to be seen as to whether there is any other material to hold that they are mere mistakes and on that basis it cannot be assumed or presumed that the other particulars given in Annexures-IIl and IV to the E.P. are only imaginary. As already observed, the petitioner had not come into the witness box to depose as to the persons who had given the information in regard to those alleged facts and it was also not stated in those annexures or in the E.P. as to who had given that information. Even P.W. 1 had not stated that he furnished that information. The records which are said to have been maintained by the Election Agents during the election process were also not produced. If the said record was present by the time the Annexures-III and IV to the E.P. were drafted, one would naturally expect the election petitioner cither to file the same along with the E.P. or atleast produce the same during the evidence. If no such record was available by the time the Annexures-III and IV were drafted, a doubt would naturally arise as to whether such record was prepared during the process of the election, for it was so prepared, the same would have been made available to the election petition. It no such record was prepared, the information could have been only an oral information. Even if it is oral information, one who gathers that information or, one who is informed about it, will made note of it on some paper or book for being made available at the time of drafting the election petition. But no such note or book was produced. If it is on the basis of oral information only, question arises as to whether persons who had furnished that information could recall all those particulars by the time the information was given, when the record was not prepared in regard to the same. Hence when it was established that atleast some of the particulars given in Annexures-III and IV are false, in the absence of contemporaneous record, it is difficult to believe that the particulars furnished in Annexures-III and IV are true.
16. The learned counsel for the petitioner referred to the decision in Raghbir Singh v. Gurcharan Singh, to urge that a written objection is not imperative to believe the version of a witness that he raised such an objection before the Returning Officer. The question which had arisen for consideration in the said case is as to whether the eleven ballot papers were tampered. A practising advocate who was counting agent for the unsuccessful candidate gave evidence to the effect that he noticed at the time of counting that the six ballot papers were found to be tampered. It was also found on fact that four of such ballot papers were from the voters who belong to the parry of unsuccessful candidate who challenged the election of the successful candidate. The fact that as they were supporters of the unsuccessful candidate they would not have voted for the successful candidate, was taken note of. One could easily remember those facts. Any how in view of the material on record in that case it was found that mere failure to submit written objection was not a ground for rejecting the evidence of that counting agent.
17. But in this case a false allegation is made that an application praying for recount was given to the Returning Officer. If the irregularities as alleged were noticed and objections were raised, then one would expect the defeated candidate or his election agent or Chief Counting Agent to submit an application to the Returning Officer by referring to those irregularities to pray for recount and the failure to file such an application is one of the factors to be considered for determining as to whether in-fact the evidence adduced in regard to the alleged irregularities are true or not.
The decision in Sharadha Devi v. Krishna Chandra, is also relied upon for the petitioner to urge that when errors in respect of some ballot papers were furnished, then the scrutiny and recount cannot be limited to those ballot papers only. It was stated for the petitioner that when evidence was adduced in regard to wrong rejection of some votes and wrong reception of some votes, scrutiny of all invalid votes and the votes counted in favour of R-1 has to be ordered. But as already observed, satisfactory proof in regard to the facts mentioned in Annexures-III and IV is lacking. Hence there is no further need to advert to this decision.
18. It was next argued for the election petitioner that whenever it was stated for R-1 that some of the votes were wrongly rejected, no prejudice will be caused to R-1 if scrutiny and recount is ordered. But in P.K.K. Shamsudeen v. K.A.M.M. Mohindeen, it was held that an order of recount o votes must stand or fall in the nature of the averments and the evidence adduced before the order of recount was made and not from the results emanating from the recount of votes.
19. In that case recount was ordered and on recount that defeated candidate got more votes than the successful candidate. It was hold by the Supreme Court that when the material facts in sufficient detail about the alleged irregularities were not stated, and when no evidence was adduced in regard to the same, the order for scrutiny and recount is illegal, and hence the result on the basis of the recount was set aside and the election of the successful candidate on the basis of the material, before the order of recount was upheld. In Hariram v. Him Singh, it was held that unless the court was fully satisfied that a cast iron case was made out for ordering scrutiny or inspection, it cannot be ordered.
20. There is no reliable evidence much less cast Iron case in support of the facts mentioned in Annexures-III and IV of the E.P. If on the basis of the meterial on record, inspection is ordered, it will be a case of permitting the petitioner to make a roving enquiry to fish out the material to make an attempt for declaration of the election of R-1 as void. Thus there is no prima facie case in regard to the alleged irregularities of wrongful rejection of votes polled in favour of petitioner or wrongful receipt of votes in favour of R-1. Thus this is not a case for ordering inspection and recount.
21. Hence there are no grounds for declaring the election of R-1 as void. Accordingly the Election Petition is dismissed. No costs.