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Sec.94 , 87 and 102 of R.P. Act &Rule 73(2) Conduct of Elections Rules, 1961 – Election petition and Recrimination petition –No recount unnecessarily on vague allegations( point d of Recrimination petition) – No court should travel beyond pleadings – MLC – Equal votes on first count – on recount , the appellant was declared as elected by majority of one vote – High court traveled beyond the pleadings and counted and cross checked nearly 30 votes and declared the respondent was an Elected candidate by majority of 3 votes – Apex court held that High court has no right to travel beyond the pleadings – Regarding opinion of 2 votes , Apex court accepted the reasons of high court for two votes but rejected the opinion of high court in respect of third vote and declared it as invalid – both parties obtained equal votes – under sec.102 lottery was held and that the appellant was declared as Elected candidate = Arikala Narasa Reddy …Appellant Versus Venkata Ram Reddy Reddygari & Anr. …Respondents=2014 (February part )judis.nic.in/supremecourt/filename=41200

Sec.94 , 87 and 102 of R.P. Act &Rule 73(2) Conduct of Elections  Rules,  1961  Election petition and Recrimination petition -No recount unnecessarily on vague allegations( point d of Recrimination petition) – No court should travel beyond pleadings – MLC – Equal votes on first count – on recount , the appellant was declared as elected by majority of one vote – High court traveled beyond the pleadings and counted and cross checked nearly 30 votes and declared the respondent was an Elected candidate by majority of 3 votes – Apex court held that High court has no right to travel beyond the pleadings – Regarding opinion of 2 votes , Apex court accepted the reasons of high court for two votes but rejected the opinion of high court in respect of third vote and declared it as invalid – both parties obtained equal votes – under sec.102 lottery was held and that the appellant was declared as Elected candidate = 

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.=

Election petition and Recrimination petition to High court =

 

 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. 

The High Court during the trial of the election petition  picked

      up 17 ballot papers from the  bundle  of  rejected  ballot  papers  as

      determined by the Returning Officer and marked the same as Ex.Y-1 to Y-

      17.  The High Court also picked up 2  ballot  papers  from  the  valid

      votes of the appellant and marked the same as Ex.R-1  and  R-2.   Four

      ballot papers were picked up from the valid votes of  respondent  no.1

      and marked as Ex.P-16 to P-19.  

After  considering  all  these  ballot

      papers, the High Court vide judgment and order dated 20.7.2012 allowed

      the election petition holding that certain votes  cast  in  favour  of

      respondent no.1 had wrongly been rejected and the  vote  which  should

      have been declared as invalid had wrongly been counted  in  favour  of

      the appellant as valid and thus, the respondent no.1 was  declared  as

      successful  candidate  and  elected  as  MLC.  

The  operation  of  the

      aforesaid judgment dated 20.7.2012 was stayed only for a period  of  4

      weeks to enable the appellant to approach this Court. =

The appeal to Apex court =

No court order for recount unless….

The result  announced  by  the

      Returning Officer leads to formation of a  government  which  requires

      the stability and continuity  as  an  essential  feature  in  election

      process and therefore, the counting of ballots is not to be interfered

      with frequently. 

More so, secrecy of ballot which is  sacrosanct  gets

      exposed if recounting of votes is made easy. 

The court has to be  more

      careful when the margin between  the  contesting  candidates  is  very

      narrow. 

“Looking for numerical good  fortune  or  windfall  of  chance

      discovery of  illegal  rejection  or  reception  of  ballots  must  be

      avoided, as it may tend to a dangerous  disorientation  which  invades

      the democratic order by providing  scope  for  reopening  of  declared

      results”. 

However, a genuine apprehension of mis-count  or  illegality

      and other compulsions of justice may require the recourse to a drastic

      step.    

No court should travel beyond pleadings 

This Court has consistently held that the court cannot go beyond

      the pleadings  of  the  parties.  

The  parties  have  to  take  proper

      pleadings and establish by adducing  evidence  that  by  a  particular

      irregularity/illegality,  the  result  of  the   election   has   been

      “materially affected”. 

There can be no dispute to  the  settled  legal

      proposition that “as a rule relief not founded on the pleadings should

      not be granted”. 

Thus, a decision of the case should not be  based  on

      grounds outside the pleadings of the parties.  

The issue of marking and writing on ballot papers is governed by

      the Conduct of Elections  Rules,  1961  (hereinafter  referred  to  as

      `Rules’). 

Rule 73(2) of the Rules reads as under:

 

 

           “73.   Scrutiny and opening of ballot boxes and the  packets  of

           postal ballot papers:

 

 

            (1)  xx               xx         xx

 

 

            (2) A ballot paper shall be invalid on which-

 

 

           (a)   the figure ‘1’ is not marked;  or

 

 

           (b)  the figure ‘1’ is set opposite the name of  more  than  one

           candidate or  is  so  placed as to render it doubtful  to  which

           candidate  it  is intended to apply;  or

 

 

           (c)  the figure ‘1’ and some other figures are set opposite  the

           name  of the same candidate;  or

 

 

           (d)  there  is  any  mark  or writing by   which   the   elector

           can  be identified.  

 

 

                 xx         xx          xx”

In view of the pleadings in  the  election  petition,  the  case

      should have been restricted only to these four votes and even  if  the

      recrimination petition is taken into account, there could have been no

      occasion for the High Court to direct recounting of all the votes  and

      in case certain discrepancies  were found out in recounting  of  votes

      by the Registrar of the High Court as per the direction  of  the  High

      Court, it was  not  permissible  for  the  High  Court  to  take  into

      consideration all such discrepancies and decide the election  petition

      or recrimination petition on the basis thereof. 

The course adopted  by

      the High Court is impermissible and cannot be taken note of  being  in

      contravention with statutory requirements. 

Therefore, the case has  to

      be restricted only to the four votes in the election petition and  the

      allegations made in the  recrimination  petition  ignoring  altogether

      what had been found out  in  the  recounting  of  votes  as  under  no

      circumstance the recounting of votes at that stage was permissible.

 

In the recrimination petition,  the  appellant

      had raised the following issues:

 

                 “(a)    ?That one vote marked as ‘7’ was  illegally  counted

                 in  favour  of  the  1st  Respondent  herein  by  the   2nd

                 Respondent  in  spite  of  the  objections  raised  by  the

                 petitioner  at  the  time  of  counting   and   a   written

                 application to reject  the  said  vote  was  filed  by  the

                 petitioner herein.

= On a careful examination of the said exhibit, it is to be held

      that though the same may appear to be `7’ but it is also another  form

      of writing `1’ and thus, there was  no  illegality  committed  by  the

      Returning Officer in holding the same in favour of the respondent  no.1.

 

                 (b)       The 2nd Respondent has illegally counted one vote

                 in favour of the 1st Respondent though the figure  ‘9’  was

                 marked on the ballot paper and though it is clearly looking

                 as ‘9’.

=The contention is noted just to be rejected as such a figure is to  be

      read only as `1’ for it is impossible to take  such  a  technical  and

      impractical view.  If all the ballots are started  to  be  scrutinized

      and examined in such a hyper technical manner then most of the ballots

      would only stand rejected. Hence, we hold that the mark `1’ is made on

      Ex.P-16 and the same is to be counted in favour of respondent no. 1 as

      has been done.

 

                 (c)     The 2nd  Respondent has illegally rejected one vote

                 which is validly polled in favour of the petitioner  herein

                 on the ground that the voter has put ‘2’ after  the  figure

                 ‘1’ in the column allotted to the petitioner. According  to

                 law, the 2nd  Respondent has to treat that  vote  as  valid

                 and counted in favour of the  petitioner  herein  in  whose

                 favour ‘1’ is put on the ballot paper and by  ignoring  the

                 subsequent figure.

=However, Ex.Y-11 is to be declared  as  invalid.   Not  only  is

      there scribbling on the said ballot but the final mark that is made on

      the ballot is `2’ which is in direct conflict with  Rule  73(2)(a)  of

      the Rules and hence, the Returning Officer rightly rejected the same.

 

 

 

                 (d)   The 2nd Respondent has illegally rejected some  other

                 votes validly polled in favour of the petitioner on  flimsy

                 and untenable grounds.” =

 

  As regards the ground (d) it is to be noticed that the  same  is

      non-descriptive and  vague.  

In such a fact-situation the decision as  to  who  will  be  the

      returned candidate is to be decided by the draw of lots by  virtue  of

      the provisions of Section 102 of the Act.


37.   In view of the above, in the presence of all the learned counsel

      for the parties we have drawn the lots in the open Court and  by  draw

      of lots, the appellant succeeds.


38.    The  appeals  stand  disposed  of  accordingly  in  favour   of

      appellant.  No costs.

 

2014 (February part )judis.nic.in/supremecourt/filename=41200

 

B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 5710-5711 OF 2012
Arikala Narasa Reddy …Appellant

Versus

Venkata Ram Reddy Reddygari & Anr. …Respondents

J U D G M E N T

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 observing that it was
not appropriate to interfere at that stage but the appellant would be
at liberty to urge the same point at the time of final hearing. Thus,
this Court did not interfere with the same being an interim order.

N. The High Court during the trial of the election petition picked
up 17 ballot papers from the bundle of rejected ballot papers as
determined by the Returning Officer and marked the same as Ex.Y-1 to Y-
17. The High Court also picked up 2 ballot papers from the valid
votes of the appellant and marked the same as Ex.R-1 and R-2. Four
ballot papers were picked up from the valid votes of respondent no.1
and marked as Ex.P-16 to P-19. After considering all these ballot
papers, the High Court vide judgment and order dated 20.7.2012 allowed
the election petition holding that certain votes cast in favour of
respondent no.1 had wrongly been rejected and the vote which should
have been declared as invalid had wrongly been counted in favour of
the appellant as valid and thus, the respondent no.1 was declared as
successful candidate and elected as MLC. The operation of the
aforesaid judgment dated 20.7.2012 was stayed only for a period of 4
weeks to enable the appellant to approach this Court.

Hence, these appeals.

3. Shri B. Adinarayana Rao, learned senior counsel appearing for
the appellant has submitted that the election petition has not been
decided by the High Court giving strict adherence to the provisions of
the Act and the Rules framed for this purpose. It was not permissible
for the High Court to go beyond the pleadings of the election
petition. The entire controversy could only be in respect of 3
votes as pleaded in the election petition by the respondent no.1 which
had been declared invalid and another vote which ought to have been
declared invalid but had been counted in favour of the appellant as
valid. It was not permissible for the High Court to count all the
votes and pick up large number of votes from the bundle of invalid
votes, totaling 30, or from the valid votes duly counted in favour of
the appellant or the respondent no.1. Counting has to take place
strictly in accordance with the rules and there was no occasion for
the court to find out the intention of the voters or draw an inference
in whose favour the elector wanted to vote. More so, the petition
filed by the appellant had not been decided in the correct
perspective. Therefore, the appeals deserve to be allowed.

4. Per contra, Shri P.P. Rao, learned senior counsel appearing for
the respondents has vehemently opposed the appeals contending that
even if the case is restricted to aforesaid 4 votes, as submitted by
learned counsel for the appellant, the result so declared by the High
Court is not materially affected. The Returning Officer had committed
an error in declaring the 3 valid votes in favour of the respondent
no.1 as invalid and miscounted one vote as valid. Thus, in such a
fact-situation, the intention of the elector has to be inferred in
view of the statutory rules and executive instructions issued by the
Election Commission for counting the ballot papers. Therefore, the
judgment delivered by the High Court can by no means be termed as
perverse and no interference is called for. The appeals lack merit
and are liable to be dismissed.

5. We have heard the learned counsel for the parties and perused
the record.

6. Section 87 of the Act provides that the election petition is to
be tried by the High Court applying the provisions of the Code of
Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) “as
nearly as may be” and in accordance with the procedure applicable
under CPC and the provisions of the Indian Evidence Act, 1872
(hereinafter referred to as the ‘Evidence Act’) shall also be
applicable subject to the provisions of the Act.

7. It is a settled legal proposition that the statutory
requirements relating to election law have to be strictly adhered to
for the reason that an election dispute is a statutory proceeding
unknown to the common law and thus, the doctrine of equity, etc. does
not apply in such dispute. All the technicalities prescribed/mandated
in election law have been provided to safeguard the purity of the
election process and courts have a duty to enforce the same with all
rigours and not to minimize their operation. A right to be elected is
neither a fundamental right nor a common law right, though it may be
very fundamental to a democratic set-up of governance. Therefore,
answer to every question raised in election dispute is to be solved
within the four corners of the statute. The result announced by the
Returning Officer leads to formation of a government which requires
the stability and continuity as an essential feature in election
process and therefore, the counting of ballots is not to be interfered
with frequently. More so, secrecy of ballot which is sacrosanct gets
exposed if recounting of votes is made easy. The court has to be more
careful when the margin between the contesting candidates is very
narrow. “Looking for numerical good fortune or windfall of chance
discovery of illegal rejection or reception of ballots must be
avoided, as it may tend to a dangerous disorientation which invades
the democratic order by providing scope for reopening of declared
results”. However, a genuine apprehension of mis-count or illegality
and other compulsions of justice may require the recourse to a drastic
step.

8. Before the court permits the recounting, the following
conditions must be satisfied:

(i) The court must be satisfied that a prima facie case is
established;
(ii) The material facts and full particulars have been pleaded
stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by way
of an order to re-count the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot should be guarded.
9. This Court has consistently held that the court cannot go beyond
the pleadings of the parties. The parties have to take proper
pleadings and establish by adducing evidence that by a particular
irregularity/illegality, the result of the election has been
“materially affected”. There can be no dispute to the settled legal
proposition that “as a rule relief not founded on the pleadings should
not be granted”. Thus, a decision of the case should not be based on
grounds outside the pleadings of the parties. In absence of pleadings,
evidence if any, produced by the parties, cannot be considered. It is
also a settled legal proposition that no party should be permitted to
travel beyond its pleadings and parties are bound to take all
necessary and material facts in support of the case set up by them.
Pleadings ensure that each side is fully alive to the questions that
are likely to be raised and they may have an opportunity of placing
the relevant evidence before the court for its consideration. The
issues arise only when a material proposition of fact or law is
affirmed by one party and denied by the other party. Therefore, it is
neither desirable nor permissible for a court to frame an issue not
arising on the pleadings. The court cannot exercise discretion of
ordering recounting of ballots just to enable the election petitioner
to indulge in a roving inquiry with a view to fish material for
dealing the election to be void. The order of recounting can be
passed only if the petitioner sets out his case with precision
supported by averments of material facts. (Vide: Ram Sewak Yadav v.
Hussain Kamil Kidwai & Ors., AIR 1964 SC 1249; Bhabhi v. Sheo Govind &
Ors., AIR 1975 SC 2117; and M. Chinnasamy v. K.C. Palanisamy & Ors.,
(2004) 6 SCC 341).
10. There may be an exceptional case where the parties proceed to
trial fully knowing the rival case and lead all the evidence not only
in support of their contentions, but in refutation of the case set up
by the other side. Only in such circumstances, absence of an issue may
not be fatal and a party may not be permitted to submit that there has
been a mis-trial and the proceedings stood vitiated. (Vide: Kalyan
Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
11. The secrecy of a ballot is to be preserved in view of the
statutory provision contained in Section 94 of the Act. Secrecy of
ballot has always been treated as sacrosanct and indispensable adjunct
of free and fair election. Such principle of secrecy is based on
public policy aimed to ensure that voter may vote without fear or
favour and is free from any apprehension of its disclosure against his
will.
In the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra
& Ors., AIR 1980 SC 1362, a Constitution Bench of this Court
considered the aspect of secrecy of vote and held that such policy is
for the benefit of the voters to enable them to cast their vote
freely. However, where a benefit, even though based on public policy,
is granted to a person, it is open for that person and no one else to
wave of such benefit. The very concept of privilege inheres a right
to wave it. (See also: Kuldip Nayar v. Union of India & Ors., AIR
2006 SC 3127; and People’s Union for Civil Liberties & Anr. v. Union
of India & Anr., (2013) 10 SCC 1).
12. We find some force in the contention of Shri P.P. Rao, learned
senior counsel appearing for the respondent No.1 that though secrecy
of ballot is an inherent principle in conducting elections, however,
the said principle has diminished to some extent in view of the rule
of whip as prescribed in Tenth Schedule to the Constitution of India.
13. The issue of marking and writing on ballot papers is governed by
the Conduct of Elections Rules, 1961 (hereinafter referred to as
`Rules’). Rule 73(2) of the Rules reads as under:
“73. Scrutiny and opening of ballot boxes and the packets of
postal ballot papers:
(1) xx xx xx
(2) A ballot paper shall be invalid on which-
(a) the figure ‘1’ is not marked; or
(b) the figure ‘1’ is set opposite the name of more than one
candidate or is so placed as to render it doubtful to which
candidate it is intended to apply; or
(c) the figure ‘1’ and some other figures are set opposite the
name of the same candidate; or
(d) there is any mark or writing by which the elector
can be identified.
xx xx xx”

14. In Dr. Anup Singh v. Shri Abdul Ghani & Anr., AIR 1965 SC 815, a
Constitution Bench of this Court considered the provisions of Rule
73(2)(d) which provides that a ballot paper shall be invalid if “there
is any mark or writing by which the elector can be identified”. The
Court observed as under:
“10…Thus there are three possible interpretations of the words
“by which the elector can be identified” appearing in Rule
73(2)(d), namely (i) any mark or writing which might possibly
lead to the identification of the elector, (ii) such mark or
writing as can reasonably and probably lead to the
identification of the elector, and (iii) the mark or writing
should be connected by evidence aliened with an elector and it
should be shown that the elector is actually identified by such
mark or writing.
11. ….When the legislature provided that the mark or writing
should be such that the elector can be identified thereby it was
not providing for a mere possibility of identification. On this
construction almost every additional mark or writing would fall
within the mischief of the provision. If that was the intention
the words would have been different,….
12. We are further of opinion that the third construction on
which the appellant relies also cannot be accepted. If the
intention of the legislature was that only such votes should be
invalidated in which the elector was actually identified because
of the mark or writing, the legislature would not have used the
words “the mark or writing by which the elector can be
identified”. These words in our opinion do not mean that there
must be an actual identification of the elector by the mark or
writing before the vote can be invalidated. If such was the
intention of the legislature clause (d) would have read
something like “any mark or writing which identifies the
elector”. But the words used are “any mark or writing by which
the elector can be identified”, and these words in our opinion
mean something more than a mere possibility of identification
but do not require actual proof of identification before the
vote can be invalidated, though by such proof, when offered, the
disability would be attracted.”
15. Similarly, in Era Sezhiyan v. T.R. Balu & Ors., AIR 1990 SC 838,
this Court after considering Rule 73(2) of the Rules held as under:
“14…Sub-rule (2) of rule 73 of the Election Rules set out
earlier that a ballot paper shall be invalid on which there is
any figure marked otherwise than with the article supplied for
the purpose. Rule 73 is directly applicable to the case of the
election in question and as aforesaid it prescribes that if on
the ballot paper there is any figure marked otherwise than with
the article supplied for the purpose, the ballot paper shall be
invalid. Assuming that the voter in this case had expressed his
intention clearly by marking the figure I in green ink, he did
so in violation of the express provisions of the Rules which
have a statutory force and hence no effect can be given to that
intention.” (Emphasis added)
While considering the case, this Court placed reliance upon its
earlier judgment in Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors.,
AIR 1955 SC 233.
16. In Km. Shradha Devi v. Krishna Chandra Pant & Ors., AIR 1982 SC
1569, this Court considered the provisions of Rule 73(2)(d) of the
Rules and held as under:
“A ballot paper shall be invalid on which there is any mark or
writing by which the elector can be identified. Section 94 of
the Act ensures secrecy of ballot and it cannot be infringed
because no witness or other person shall be required to state
for whom he has voted at an election. Section 94 was interpreted
by this Court in Raghubir Singh Gill (supra), to confer a
privilege upon the voter not to be compelled to disclose how and
for whom he voted. To ensure free and fair election which is
pivotal for setting up a parliamentary democracy, this vital
principle was enacted in Section 94 to ensure that a voter would
be able to vote uninhibited by any fear or any undesirable
consequence of disclosure of how he voted. As a corollary it is
provided that if there is any mark or writing on the ballot
paper which enables the elector to be identified, the ballot
paper would be rejected as invalid. But the mark or writing must
be such as would unerringly lead to the identity of the voter.”

17. If all the judgments referred to hereinabove in respect of
interpreting the provisions of Rule 73(2)(d) are conjointly
considered, we are of the opinion that there must be some casual
connection between the mark and the identity of the voter and such
writing or marking itself must reasonably give indication of the
voter’s identity. As to whether such marking or writing in a
particular case would disclose the identity of the voter, would depend
on the nature of writing or marking on the ballot involved in each
case. Therefore, such marking or writing must be such as to draw an
inference about the identity of the voter. To that extent, with all
humility at our command, we have to say that word “unerringly” used by
this Court in Km. Shradha Devi (supra) is not in consonance with the
law laid down by the Constitution Bench of this Court in Dr. Anup
Singh (supra).

18. This brings us to the next question involved herein as to
whether election petition and recrimination petition have to be tried
simultaneously.

In a composite election petition wherein the petitioner claims
not only that the election of the returned candidate is void but also
that the petitioner or some other person be declared to have been duly
elected, Section 97 of the Act comes into play and allows the returned
candidate to recriminate and raise counter-pleas in support of his
case, “but the pleas of the returned candidate under Section 97 have
to be tried after a declaration has been made under Section 100 of the
Act.” The first part of the enquiry is in regard to the validity of
the election of the returned candidate which is to be tried within the
narrow limits prescribed by Section 100 (1) (d) (iii) while the latter
part of the enquiry governed by Section 101 (a) will have to be tried
on a broader basis permitting the returned candidate to lead evidence
in support of the pleas taken by him in his recrimination petition. If
the returned candidate does not recriminate as required by Section 97,
then he cannot make any attack against the alternative claim made by
the election petitioner. In such a case an enquiry would be held under
Section 100 so far as the validity of the returned candidate’s
election is concerned, and if as a result of the said enquiry,
declaration is made that the election of the returned candidate is
void, then the Tribunal will proceed to deal with the alternative
claim, but in doing so, the returned candidate will not be allowed to
lead any evidence because he is precluded from raising any pleas
against the validity of the claim of the alternative candidate. (Vide:
Jabar Singh v. Genda Lal, AIR 1964 SC 1200; Ram Autar Singh Bhadauria
v. Ram Gopal Singh & Ors., AIR 1975 SC 2182; and Bhag Mal v. Ch.
Parbhu Ram & Ors., AIR 1985 SC 150).
19. The instant case requires to be considered in light of the above
settled legal propositions.

In the instant case, as explained hereinabove, there were 706
total votes, out of which 701 votes were polled. At the time of
initial counting on 2.4.2009, both the candidates got equal votes as
336 and 29 votes were found invalid. On the request of the appellant,
the Returning Officer permitted recounting of the votes and the
appellant got 336 votes while the respondent no.1 got 335 votes and 30
votes were found to be invalid. In the election petition, the only
grounds had been that 3 votes i.e. Ex.X-1 to X-3 polled in favour of
respondent no.1 which had wrongly been rejected and one vote Ex.Y-13
which had been counted in favour of the appellant ought to have been
declared invalid.

20. In view of the pleadings in the election petition, the case
should have been restricted only to these four votes and even if the
recrimination petition is taken into account, there could have been no
occasion for the High Court to direct recounting of all the votes and
in case certain discrepancies were found out in recounting of votes
by the Registrar of the High Court as per the direction of the High
Court, it was not permissible for the High Court to take into
consideration all such discrepancies and decide the election petition
or recrimination petition on the basis thereof. The course adopted by
the High Court is impermissible and cannot be taken note of being in
contravention with statutory requirements. Therefore, the case has to
be restricted only to the four votes in the election petition and the
allegations made in the recrimination petition ignoring altogether
what had been found out in the recounting of votes as under no
circumstance the recounting of votes at that stage was permissible.

21. We have been taken through the judgment of the High Court as
well as the record of the election petition including photocopies of
the ballot papers in question.

22. Prayer of the election petition reads as under:

a) To declare the election of respondent no.1 to the
Legislative Council 18-Nizamabad Local Authority
Constituency, Nizamabad held on 30.3.2009 as illegal
and void;

b) To direct recounting and scrutiny of the ballot
papers and validate three votes cast in favour of the
petitioner;

c) To declare one vote cast in favour of the respondent
no.1 as invalid;

d) To set aside the election of the first respondent as the
member of the Legislative Council from 18-Nizamabad Local
Authority Constituency;

e) To declare the petitioner as elected to the Legislative
Council of the State of Andhra Pradesh from 18-Nizamabad
Local Authority Constituency in the election held on
30.3.2009;

f) To award costs of the petition.
23. The particulars as per the election petition in respect of the
aforesaid facts had been as under:

a) one vote was polled in favour of the petitioner by
marking figure ‘1’, but the same was doubted as it
looked like ‘7’ and was kept under doubtful votes.

b) One vote which was polled in favour of the petitioner
by marking figure ‘1’ was doubted on the ground that
it looked like ‘dot’.

c) One vote which was polled in favour of the petitioner
by marking figure ‘1’ was treated as doubtful vote on
the ground that the name of the petitioner, the
contesting candidate was written on the ballot paper.
24. On the basis of the pleadings, the following issues were framed:

1. Whether the petitioner has got a prima facie case to
an order of scrutiny and recounting of ballot papers
as prayed for in the election petition?

2. Whether three (3) votes polled in favour of the
petitioner as set out in paras 10 and 11 of the
election petition are improperly refused or rejected?

3. Whether one (1) vote improperly received and counted
in favour of the returned candidate as set out in
para 10 of the election petition?

4. Whether the election of the returned candidate has
been materially affected by improper refusal or
rejection of three (3) votes polled in favour of the
election petitioner and improper reception of one (1)
vote in favour of returned candidate as stated in
paras 10 and 11 of the election petition?

5. Whether the election of the respondent/returned
candidate has to be declared as void?

6. To what relief?
25. It is a settled legal proposition that the instructions
contained in the handbook for Returning Officer are issued by the
Election Commission in exercise of its statutory functions and are
therefore, binding on the Returning Officers. Such a view stands
fortified by various judgments of this Court in Ram Sukh v. Dinesh
Aggarwal, AIR 2010 SC 1227; and Uttamrao Shivdas Jankar v. Ranjitsinh
Vijaysinh Mohite Patil, AIR 2009 SC 2975. Instruction 16 of the
Handbook deals with cases as to when the ballot is not to be rejected.
The Returning Officers are bound by the Rules and such instructions in
counting the ballot as has been done in this case.
26. The High Court had examined the votes in dispute and came to the
following findings:

“Coming to Ex.X-1, the figure ‘1’ is clearly marked by the
voter in the panel meant for the petitioner in the ballot paper.
Though, it was not in the space which is actually meant for
marking figure ‘1’, since it is in the panel (space) provided
for the petitioner, it has to be treated as valid. This was
also, however, objected to by the first respondent that it looks
like ‘7’ and not ‘1’. But, it would clearly appear that the
voter marked the figure ‘1’ and there is a small extension
towards left of the said figure on the top. The learned counsel
appearing for the first respondent would contend that the
intention of the voter is absolutely no relevance since the
rules specifically state that the figure ‘1’ has to be put.
While discussing the rules and referring to the judicial
pronouncements, I have already held that a duty is cast upon the
Returning Officer as well as the court to ascertain the
intention of the voter. As long as the figure marked resembles
‘1’, it is illegal to reject the ballot mechanically whenever a
doubt arises that the figure marked does not accord in all
respects with the figure viewed by the Returning Officer or the
court. This ballot, however, clearly shows that the figure ‘1’
was specifically and correctly marked and therefore, the
Returning Officer rightly validated the said vote in favour of
the petitioner.

In Ex.X-2, the voter marked figure ‘1’ in the panel meant for
the petitioner. It was objected to by the first respondent that
it looks like ‘dot’. On careful examination, I found that the
voter in fact marked figure ‘1’, but it is short in length and
the width appears to be more because of the discharge of more
ink from the instrument supplied to the elector by the Returning
Officer for the purpose of marking. According to me, this was
improperly rejected by the Returning Officer saying that it
looks like ‘dot’, but not one. By carefully examining the ballot
paper unhesitatingly, I hold that the voter marked figure ‘1’
and it has to be validated in favour of the petitioner and
accordingly, the same is validated for the petitioner.

xxx xxx xxx
xxx

In Ex.X-3, a ‘tick’ mark was put in the column meant for the
first respondent in addition to figure ‘1’ which was clearly put
in the space meant for the petitioner. This apart, the voter
wrote that his vote is for ‘Venkata Ram Reddy’ (petitioner). By
the said writing, it is not possible to identify the voter. From
the writing, it is also not possible to draw any inference that
there was prior arrangement between the petitioner and the voter
to write those words. It is also not possible to presume that
the writing furnishes any reasonable or probable information or
evidence to find out the identity of the voter. As regards the
‘tick’ mark since such mark is not contemplated by the rules it
has to be ignored. For all these reasons, since the figure ‘1’
was clearly put by the voter, it has to be validated in favour
of the petitioner. Accordingly, the same is validated in favour
of the petitioner.

xxx xxx xxx xxx

As regards Ex.Y-13, it requires to be noticed that the figure
‘1’ was clearly and specifically put in the column meant for the
petitioner. However, the elector in the space provided for the
petitioner for marking the figure put his signature apart from
marking figure ‘1’. From the signature also it is not possible
to trace out the identity of the voter and therefore, this vote
also can be validated in favour of the petitioner and
accordingly, it is validated in favour of the petitioner.”
27. In view of the above, the High Court concluded the trial of
the election petition declaring the respondent elected by margin of
two votes as he secured 338 votes, while the appellant secured 336
votes.

28. We have gone through the record of the case including the four
disputed ballots i.e. Ex. X-1 to 3 and Ex.Y-13 with the help of the
learned counsel for the parties. We agree with the reasoning given by
the High Court with respect to Ex. X-1 and 2. However, Ex.X-3 has to
be held to be an invalid ballot because of the ambiguity and the
additional marking i.e. “his vote is for Venkata Rama Reddy” on it.
Further, though the elector has put the mark ‘1’ in front of the name
of the respondent no. 1, however, he has also put a tick mark in front
of the name of the appellant. Therefore, it is impossible to make out
in whose favour the elector has voted and hence, this ballot is
rejected as being invalid.

29. As regards Ex.Y-13, the voter has, in addition to putting the
mark ‘1’ in front of the name of the respondent no. 1, put his
signature as well. The said signature is legible and distinguishable
and keeping in mind that only 701 votes were polled, it would not be
difficult to identify the elector and, thus, the ballot is invalid
being hit by Rule 73 (2) (d) of the Rules.

30. In view of the above, after modification of the impugned
judgment and order, the appellant and the respondent no.1 get equal
number of votes i.e. 336 votes each. Therefore, the judgment and order
of the High Court insofar as it relates to allowing the election
petition is modified to that extent.

31. In such a fact-situation provisions of Section 102 of the Act
have to be resorted to, however, as the result of the election stood
materially affected, we may first consider the recrimination petition
filed by the appellant. In the recrimination petition, the appellant
had raised the following issues:

“(a) ?That one vote marked as ‘7’ was illegally counted
in favour of the 1st Respondent herein by the 2nd
Respondent in spite of the objections raised by the
petitioner at the time of counting and a written
application to reject the said vote was filed by the
petitioner herein.

(b) The 2nd Respondent has illegally counted one vote
in favour of the 1st Respondent though the figure ‘9’ was
marked on the ballot paper and though it is clearly looking
as ‘9’.

(c) The 2nd Respondent has illegally rejected one vote
which is validly polled in favour of the petitioner herein
on the ground that the voter has put ‘2’ after the figure
‘1’ in the column allotted to the petitioner. According to
law, the 2nd Respondent has to treat that vote as valid
and counted in favour of the petitioner herein in whose
favour ‘1’ is put on the ballot paper and by ignoring the
subsequent figure.

(d) The 2nd Respondent has illegally rejected some other
votes validly polled in favour of the petitioner on flimsy
and untenable grounds.”
32. As regards the ground (d) it is to be noticed that the same is
non-descriptive and vague. Any ground raised in a recrimination
petition has to be specific and the court cannot be asked to make a
roving and fishing enquiry on the mere asking of a party. Thus, ground
(d) is not worth consideration.

33. Coming to ground (a), the same relates to Ex.P-19. The
appellant has claimed that on the said ballot mark `7’ had been put
which was treated as mark `1’ and counted in favour of the respondent
no. 1. On a careful examination of the said exhibit, it is to be held
that though the same may appear to be `7’ but it is also another form
of writing `1’ and thus, there was no illegality committed by the
Returning Officer in holding the same in favour of the respondent no.
1. Ground (b) relates to Ex.P-16, wherein one long stroke is made to
make a mark denoting the number `1’. However, on the upper side of the
stroke there is also a small curve connecting the stroke. The
appellant has claimed that due to the said curve the figure on the
ballot is in fact `9’ and, hence, should have been declared invalid.
The contention is noted just to be rejected as such a figure is to be
read only as `1’ for it is impossible to take such a technical and
impractical view. If all the ballots are started to be scrutinized
and examined in such a hyper technical manner then most of the ballots
would only stand rejected. Hence, we hold that the mark `1’ is made on
Ex.P-16 and the same is to be counted in favour of respondent no. 1 as
has been done.

34. However, Ex.Y-11 is to be declared as invalid. Not only is
there scribbling on the said ballot but the final mark that is made on
the ballot is `2’ which is in direct conflict with Rule 73(2)(a) of
the Rules and hence, the Returning Officer rightly rejected the same.

35. In view of the above, we reach the inescapable conclusion that
even after deciding the Recrimination Petition, the appellant and the
respondent no.1 have received equal number of votes.

36. In such a fact-situation the decision as to who will be the
returned candidate is to be decided by the draw of lots by virtue of
the provisions of Section 102 of the Act.

37. In view of the above, in the presence of all the learned counsel
for the parties we have drawn the lots in the open Court and by draw
of lots, the appellant succeeds.

38. The appeals stand disposed of accordingly in favour of
appellant. No costs.
…………………………….J.
(Dr. B.S. CHAUHAN)

…………………………….J.
(J. CHELAMESWAR)

…………………………….J.
(M.Y. EQBAL)

NEW DELHI

February 4, 2014.

———————–
26

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