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2012 (4) Supreme 246
SUPREME COURT OF INDIA
T.S. Thakur & Gyan Sudha Misra, JJ.
Ponnala Lakshmaiah — Appellants
versus
Kommuri Pratap Reddy & Ors. — Respondents
Civil Appeal No. 4993 of 2012
(Arising out of S.L.P. (C) No. 20013 of 2010)
Decided on : 06-07-2012
Representation of the People Act, 1951- proviso to Section 83 (1)-Eection Petition filed by respondent 1 against the appellant , the successful candidate in the election to the 98Jangaon Assembly Constituency in State of Andhra Pradesh-Order passed by High Court holding that election petition could not be dismissed at the threshold-Appeal- Plea that election petition was liable to be dismissed on the ground that same was not accompanied by an affidavit which election petitioner was obliged to file in terms of proviso to Section 83 (1) of the Act-Section 86 of the Act does not provide for dismissal of an election petition on ground that same does not comply with the provisions of Section 83 of the Act- It sanctions dismissal of an election petition for non-compliance of Sections 81, 82 and 117 of the Act only- Such being the position, the defect if any in verification of the affidavit filed in support of the petition is not fatal-In the absence of any provision making breach of proviso to Section 83(1), a valid ground of dismissal of an election petition at the threshold, no reason why the requirement of filing an affidavit in a given format should be exalted by a judicial interpretation to the status of a statutory mandate- A petition that raises triable issues need not, be dismissed simply because the affidavit filed by the petitioner is not in a given format - Appeal dismissed (Paras 16, 23)
Facts of the Case :
The short question that arose for determination in present appeal was whether the High Court was right in holding that the election petition filed by respondent No.1 against the appellant who happened to be the successful candidate in the election to the 98Jangaon Assembly Constituency in the State of Andhra Pradesh, disclosed a cause of action and could not therefore be dismissed at the threshold.
Findings of the Court :
A.The Court held that there was no error in the order passed by High Court refusing to dismiss the petition in limine on the ground that the same disclosed no cause of action. The averments made in the election petition if taken to be factually correct, as they ought to for purposes of determining whether a case for exercise of powers under Order VII Rule 11 had been made out, disclosed a cause of action. No error was committed by High Court to warrant interference by Apex Court in exercise of its extra- ordinary powers under Article 136 of the Constitution.
B. In the absence of any provision making breach of proviso to Section 83(1), a valid ground of dismissal of an election petition at the threshold, no reason why the requirement of filing an affidavit in a given format should be exalted by a judicial interpretation to the status of a statutory mandate. A petition that raises triable issues need not, be dismissed simply because the affidavit filed by the petitioner is not in a given format .Appeal was dismissed.
JUDGMENT
T.S. Thakur, J.-Leave granted.
2. The short question that falls for determination in this appeal by special leave is whether the High Court of Andhra Pradesh was right in holding that the election petition filed by respondent No.1 against the appellant who happens to be the successful candidate in the election to the 98Jangaon Assembly Constituency in the State of Andhra Pradesh, disclosed a cause of action and could not therefore be dismissed at the threshold. The factual matrix in which the election petition came to be filed by the respondent has been set out at length by the High Court, hence need not be recounted except to the extent the same is essential for the disposal of the appeal. The High Court has, while hold ing that the averments made in the election petition raised triable issues and disclosed a cause of action, observed:
“23. As seen from the statement showing voter turn out report in connection with General Elections, 2009 to 98-Jangaon Legislative Assembly Constituency on 16.04.2009, the total votes polled, as reported by the Returning Officer, is shown as 1,50,678 from 251 polling stations. Whereas the final result sheet in Form no.20, total valid votes is shown as 1,51,411. So, from this document, it is clear that prima facie a proper counting had not taken place. Therefore, prima facie it can be said to be an irregularity on the part of the Returning Officer involved in dereliction of the duty. Similarly, there is a specific allegation that out of 653 postal ballots, the election petitioner would have secured more than 300 votes, if properly counted, and out of the said votes, 142 votes which were validly polled in favour of the election petitioner, were illegally declared as invalid and another 52 votes polled in favour of the election petitioner were counted in favour of the first respondent, and 45 invalid votes were illegally counted in favour of the first respondent. Since the margin between the elected candidate and the nearest rival is only 236 votes, had postal ballots been counted properly, then there would be a possibility of materially affecting the result of the election in so far as the returned candidate. So, under no stretch of imagination, it can be said that the allegations in the Election Petition are vague. 24. No doubt, it is true that in view of the decision of the Apex Court, recounting of the votes cannot be resorted to as a matter of course and every endeavour should be made to protect the secrecy of the ballots. But, at the same time suspicion of the correctness of the figures mentioned in the crucial documents of the statement showing voters’ turn out report and Form-20-final result sheet, where there is a variance between total number of votes polled and votes counted. The two basic requirements laid down by the Apex Court, to order recounting, are:
(a) the election petition seeking recount of the ballot papers must contain an adequate statement of the material facts on which the allegations of irregularity or illegality in counting are founded; and
(b) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary. Therefore, the questions–whether counting of votes by the officials is in accordance with the rules and regulations and also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper counting of votes polled in favour of the returned candidate, are required to be decided after adducing evidence only. The allegation that because of the improper counting of postal ballots polled in favour of the election petitioner, the election petitioner could not secure 300 votes, if accepted as true at this stage, it would materially affect the election result because the margin of votes polled between returned candidate and his near
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