Judgment

The appellant who contested the election as a Marxist (Communist Party of India) candidate for a seat to the Andhra Pradesh Legislative Assembly in the elections held on December 5, 1994, lost to respondent No. 1, who had contested the election as a candidate fielded by Telugu Desam Party by a narrow margin of 87 votes. The appellant filed an election petition challenging the election of respondent No. 1 alleging irregu­larities during counting and sought a recount of votes. The election petition was contested by respondent No. 1 and from the pleadings of the parties, the following issues were framed :

(1) Whether there are any discrepancies in the counting of votes in round Nos. 5, 6, 7 and 9 as alleged as well as in the result sheet supplied?

(2) Whether the Returning Officer has violated the instructions of the Election Commission of India in proceeding with the counting of votes, if so, to what effect?

(3) Whether the result of the election has been materially affected due to any material irregularities?

(4) Whether the election petitioner is entitled to seek recount of votes?

2. After evidence was led by the parties, the learned Single Judge of the High Court dismissed the election petition with costs. Hence, this appeal.

3. The only grievance projected by learned counsel for the appellant before us is that the Returning Officer had violated the instructions of the Election Commission of India with regard to the counting of votes particularly in polling station Nos. 28, 35, 191 and 200, viz., Ramavaram, Advi Rangapur, Musmi, Dubbagudem. According to the learned counsel, the votes polled in these polling stations were more than 90% but the Returning Officer ignored the instructions issued by the Election Commission regarding counting of votes from such polling stations and that the irregularity so committed had materially affected the result of the election in so far it concern the returned candidate. The instructions on which the learned counsel has relied upon are con­tained in the Chief Election Commission Order dated 13th April, 1991. Those instructions inter alia provide that if the Returning Officer, at the stage of counting of votes, finds that in a particular polling station 90% votes have been cast and out of those votes, 90% have gone in favour of one candidate and the votes cast in favour of the other candidate are very negligible, “he should keep aside the ballot papers contained in the ballot boxes used in that particular polling booth in a sealed cover”. Further the Returning Officer is prohibited from declaring the result in such a case and he should seek orders from the Election Commission and only after receipt of the instruc­tions from the Election Commission, should be proceed further in the matter of counting of votes. It is asserted that these instructions were violated by the Returning Officer and he counted the votes with­out following the procedure prescribed in the instructions.

4. In paragraph 7 of the election petition, which projects this griev­ance, it is alleged as under:

“As per the instructions of the Election Commission of India, the cases of polling stations where 90% or more polling has been recorded the Returning Officer has to report to the Chief Electoral Officer and the Election Commission for Commission’s decision. Till the decision of the Commission is communicated, the Returning Officer shall not open the ballot boxes of those Polling Booths/Stations for counting but at the same time, shall proceed with the counting of votes in respect of other polling booths/sta­tions. In the instant case, though abnormal polling, i.e., 90% and above was recorded in 4 polling stations, the Returning Officer with an oblique motive of helping Respondent No. 1, without reporting to the Election Commission and setting apart the said ballot boxes, allowed to mix up the said votes along with other ballot papers.”