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SUPREME COURT OF INDIA
B.S. CHAUHAN, J. CHELAMESWAR AND M.Y. EQBAL, JJ.
Arikala Narasa Reddy – Appellant
Versus
Venkata Ram Reddy Reddygari & Another – Respondents
Civil Appeal No. 5710-5711 of 2012
Decided On : 04-02-2014
(b) Election Laws – Election Petition – Recounting of votes – Conditions precedent – Restated. (Para 8)
AIR 1964 SC 1249; AIR 1975 SC 2117; (2004) 6 SCC 341 – Relied upon
(c) Administration of Justice – Judicial Propriety – Court cannot go beyond the pleadings of the parties – Parties fully knowing the rival case and lead evidence not only to support their own case but also to refute the rival case – Court may decide an issue not specifically pleaded. (Para 9, 10)
AIR 2011 SC 1127 – Relied upon
(d) Representation of the People Act, 1951 – Section 94 – Secrecy of ballot – Being sacrosanct and indispensable adjunct of free and fair election, has to be maintained – However secrecy of ballot diluted to some extent by the rule of whip. (Para 11, 12)
AIR 2006 SC 3127; (2013) 10 SCC 1 – Relied upon
(e) Conduct of Elections Rules, 1961 – Rule 73(2) – Marking of ballot paper making it invalid – Such marking or writing must be such as to draw an inference about the identity of the voter. (Para 17)
AIR 1965 SC 815; AIR 1990 SC 838; AIR 1955 SC 233 – Relied upon
AIR 1982 SC 1569 – Referred
(f) Representation of the People Act, 1951 – Sections 97 and 100 – Election petition and Recrimination petition – Whether can be taken up together – No – Election petition as to validity of election of the returned candidate has to be decided first – If returned candidate did not make any recrimination claim, he will be precluded from leading evidence against election petitioner. (Para 18)
AIR 1964 SC 1200; AIR 1975 SC 2182; AIR 1985 SC 150 – Relied upon
(g) Representation of the People Act, 1951 – Section 100 and 97 – Pleadings involving only four votes – No occasion for High Court to direct counting of all votes – High Court taking into consideration the discrepancies coming to light after recounting of votes and deciding recrimination petition b in hat basis – Not permissible. (Para 20)
(h) Representation of the People Act, 1951 – Section 97 – Recrimination petition – Ground – Must be specific and not vague. (Para 32)
(i) Handbook for Returning Officer – Instruction 16 – Scrutiny of ballot papers in hyper technical manner – Would render most of ballots invalid. (Para 33)
AIR 2010 SC 1227; AIR 2009 SC2975 – Relied upon
(j) Representation of the People Act, 1951 – Sections 97 and 102 – Even after considering recrimination petition both candidates have received equal votes – Decision by draw of lots in terms of section 102 – Appellant succeeds by draw of lots. (Para 36, 37)
Facts of the case:
This is an election petition.
On recounting of the votes the appellant was declared elected and the respondent alleged that his votes were declared invalid and some invalid votes were counted in favour of the appellant.
High Court allowed the election petition.
Finding of the Court:
Both candidates receiving equal votes. Decision would be by draw of lots in terms of section 102.
JUDGMENT :
Dr. B. S. Chauhan, J.
1. These appeals have been preferred against the impugned judgment and order dated 20.7.2012, as amended vide order dated 23.7.2012, of the High Court of Judicature of Andhra Pradesh at Hyderabad in Election Petition No.2 of 2009 and Recrimination Petition No.1 of 2009.
2. Facts and circumstances giving rise to these appeals are that:-
A. An election was held on 30.3.2009 for 18-Nizamabad Local Authority Constituency of the Andhra Pradesh Legislative Council wherein the appellant stood declared as successful candidate and had since then been a Member of Legislative Council (MLC).
B. The respondent no.1, defeated candidate, filed Election Petition No.2 of 2009 on the ground that certain invalid votes had been counted in favour of the appellant and certain valid votes which were cast in favour of the respondent no.1 had wrongly been declared invalid.
C. The election petition was to be decided on the basis of the fact that election for the said post was held on 30.3.2009 wherein out of 706 total votes, 701 votes were cast.
D. The votes were counted on 2.4.2009 and initially both the contesting candidates are said to have got equal number of votes as 336 each while 29 votes were found invalid.
E. On the application of the appellant herein, the Returning Officer allowed re-counting of all the votes wherein the appellant got 336 votes and the respondent no.1 secured 335 votes and 30 votes were found to be invalid and therefore, the appellant was declared to be the successful candidate and elected as MLC by a margin of one vote.
F. The election petition was filed mainly on the ground that 3 votes in question Ex.X-1 to X-3 polled in favour of the respondent no.1 had been wrongly rejected and one vote Ex.Y-13 which had been counted in favour of the appellant ought to have been declared invalid.
G. The High Court issued notice to the appellant regarding the lodgment of the election petition and the appellant not only entered appearance but also filed a Recrimination Petition No.1 of 2009 under Section 97 of the Representation of the People Act, 1951 (hereinafter referred to as the ‘Act’).
H. The appellant filed the written statement refuting the allegations and averments made in the petition.
I. The respondent no.2, Returning Officer also filed his written statement and it appears that during the pendency of the election petition vide order dated 23.9.2011, the High Court directed the Registrar (Judicial), High Court of Andhra Pradesh to scrutinize and re-count all the ballot papers in the presence of the parties and their counsel as per the rules and regulations, and the instructions and guidelines issued by the Election Commission of India and submit a report within a stipulated period.
J. Aggrieved, the appellant challenged the said order by filing Special Leave Petition (Civil) No.29095 of 2011 and this Court vide an order dated 20.10.2011 set aside the impugned order of the High Court and directed to first determine the question relating to the validity of the 3 disputed votes and, thereafter, to examine the issue of re-counting of all the votes, if required.
K. The High Court, in pursuance of the order of this Court, scrutinized and examined the 3 disputed votes in question in the presence of the parties and their counsel from the bundle of disputed votes, and after identifying them with the assistance of the parties and their counsel, had taken the photocopies thereof. The said photocopies were supplied to the parties and were marked as Ex.X-1, X- 2 and X-3.
L. The High Court scrutinized and examined the 3 votes on 24.1.2012 and came to the conclusion that the Returning Officer had wrongly rejected the said 3 votes as invalid and ordered that all the 3 disputed votes to be counted in favour of respondent no.1.
M. Aggrieved, the appellant challenged the said order dated 24.1.2012 by filing Special Leave Petition (C) No.4728 of 2012 and this Court disposed of the said SLP on 7.2.2012 obser
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