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2012 Supreme(AP) 79
2012 (2) ALT 448
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
R. KANTHA RAO, J.
Venkat Ram Reddy Reddy Gari
v.
Arikala Narsa Reddy and another
Election Petition No.2 of 2009
Decided On : 24-01-2012.
Mr. P. Ramakrishna Reddy, Counsel for the Petitioner.
Mr. B. Adi Narayana Rao, Counsel for Respondent No.1.
Govt. Pleader for General Admn. for Respondent No.2.
Headnote:Representation of the People Act 1951 - Section 100(1)(d)(iii) - Conduct of Election Rules 1961 - Rule 73(2) (d) - Mark or writing on ballot paper is no ground for rejection of vote, unless by such mark or writing elector can be identified - Rejection of vote by Returning Officer on ground that there is a writing in ballot paper and also that there is a tick mark in column meant for marking vote in favour of 1st respondent - Improper - What can be understood is that though voter put a tick mark in column meant for 1st respondent, by putting ’1’ in column meant for petitioner and writing therein that his vote if for petitioner, he expressed his intention clearly that he voted for petitioner only - Ballot not liable to be rejected merely because vote is indistinct or made more than once, if it is possible to gather intention that vote is for a particular candidate and it is not reasonably possible to gather a definite intention from marking or writing that voter can be identified - Further, Returning Officer did not follow R.73 (2)(d) while rendering decision on disputed ballot paper - Decision of Returning Officer set aside as being erroneous - Ballot to be counted valid in favour of petitioner. [Paras 19-21]
This election petition relates to the election of Member of Legislative Council from 18-Nizamabad Local Authority Constituency, Nizamabad and it is filed under the Representation of the People Act, 1951.
2. The petitioner was unsuccessful candidate in the election and he lost the election by a narrow majority of one vote. The contention of the petitioner in the election petition is that he lost the election due to improper rejection of three votes polled in his favour and improper reception of one vote in favour of the first respondent by the Returning Officer. He thus, filed the present election petition seeking the relief of scrutiny and recount of votes and sought for validation of three votes polled in his favour and rejection of one vote which was wrongly counted in favour of the first respondent.
3. I have already heard the learned counsel appearing for the parties on the specific issue whether the scrutiny and recount of votes can be ordered and passed an interim order dated 23.09.2011 in this election petition and held that by the pleadings and the evidence adduced in support thereof by the petitioner, the petitioner could be able to demonstrate the particulars of three disputed votes which according to him were improperly rejected by the Returning Officer and ought to have been considered validly cast in his favour. On being satisfied that the petitioner could be able to point out the irregularities committed by the Returning Officer during the course of counting and recounting of votes and considering that the procedure prescribed in Conduct of Election Rules, 1961 and Guidelines issued by the Election Commission of India in the form of Hand Book and Manuals supplied to the Election Officers were not adhered to, ordered scrutiny and recount of votes.
4. Against the said interim order on the aforesaid issue, the first respondent preferred SLP (Civil) No.29095 of 2011 and the Hon'ble Supreme Court by its order dated 20.11.2011 upheld the decision insofar as directing scrutiny and recount of votes is concerned, but modified the order to the effect that this court has to first of all determine the question relating to the validity of the three votes in question and thereafter to direct the general recount of all the ballots, if required.
5. Then, with a view to examine the validity of three disputed votes, I picked up the three disputed votes in the presence of the parties and their counsel from the bundle of disputed votes, identified them with the assistance of the parties and their counsel for which there was no dispute. Thereafter, I obtained the Xerox copies of the three disputed ballot papers, furnished them to the parties and proceeded to hear on the sole question of validity of three disputed votes.
6. I have heard Sri P. Ramakrishna Reddy, learned counsel appearing for the petitioner, Sri B. Adi Narayana Rao, learned counsel appearing for the first respondent and the learned Government Pleader for General Administration for the respondent No2.
7. The submissions made on behalf of the petitioner are as follows:
The petitioner has set out material facts in respect of errors/irregularities in respect of improper refusal/rejection of 3 votes polled in favour of the petitioner and improper reception of ‘1’ vote in favour of the first respondent. On 30.03.2009 election was held and on 02.04.2009 the counting took place under supervision of second respondent-Returning Officer, and Election Observer. Out of total 706 votes, 701 were polled. Counting was made at 3 tables. In the process of counting at counting tables, petitioner and first respondent got 336 votes each. There are 29 doubtful votes. During the process of counting at the counting tables, the petitioner made an objection regarding 3' votes polled in his favour which were put in the box of doubtful votes, namely:
(a) One vote polled in favour of the petitioner by marking figure 1' but, the same was doubted as it is looking like 7'.
(b) One vote polled in favour o
