THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITION No. 12 of 2009 ORDER: 1. This Election Petition is filed under Sections 81 read with 77, 100 (1) (b) (d) (ii) and 123 (1) (A) of the Representation of the People Act, 1951 (for short, RP Act, 1951) praying (i) to declare election of the first respondent to the 24 Manthani Assembly Constituency as null and void and set aside the same; (ii) to declare the petitioner as duly elected as member of the 24 Manthani Assembly Constituency, under Section 84 of the RP Act, 1951 and (iii) to award costs of the Election Petition. 2. The averments of the Election Petition, in brief, may be delineated as follows: The petitioner is one of the contesting candidates of 24 Manthani Assembly Constituency in the general elections held on 16.4.2009. The petitioner was fielded from Praja Rajyam Party whereas the first respondent was fielded from Indian National Congress party. In the results declared on 16.5.2009, the first respondent was declared elected as member of said constituency having polled 63,770 votes, and the petitioner stood second having polled 50,561 votes. Father of the first respondent also belonged to Indian National Congress party and he represented from Manthani Assembly Constituency to the Legislative Assembly and held the post of Speaker of the Legislative Assembly. After demise of his father, the first respondent contested from the said Assembly Constituency from the same party and was elected in the general elections held in the years 1999 and 2004. As was done earlier also, the first respondent got his photograph and the photograph of his father prominently printed in all the material published and used by him viz. banners, posters, pamphlets, door stickers, badges, etc., during the 2009 elections. In the letter addressed to voters of the constituency and also on the tilak sheet used by women, the first respondent used his father’s name and photograph respectively, and no other candidate fielded from the said constituency used name or photograph of father of the first respondent. The first respondent got elected from the said constituency by using and indulging in corrupt practices, and made expenditure much over and above the upper limit of the election expenditure fixed by the Ministry of Law & Justice (Legislative Department), Government of India Notification No.H-11-19 (6)/2003, dated 24.10.2003, which is Rs.10,00,000/- for an Assembly Constituency in Andhra Pradesh State. As per the initial estimate of the petitioner, the material printed and used by the first respondent and upon the material seized by the police from either the custody of the first respondent or his election agents or his supporters or members of his political party, the expenditure incurred by the first respondent exceeded Rs.35,00,000/-. As per Section 77 of the RP Act, 1951, every candidate in an election shall keep a separate and correct account of all expenditure in connection the election incurred or authorized by him or by his election agent. The first respondent exceeded the maximum limit of election expenses basing on the suggested rates for election related items of expenditure issued by the District Election Officer/District Collector, Karimnagar. The materials used by the first respondent during election campaign are banners, cotton flags, flexis, caps, wall posters, hand bills, pamphlets, face masks, door stickers and badges, and other material prepared by him for the purpose of using in the said election as gifts to voters includes cricket kits, T-shirts and Drums. On most of the material used by the first respondent, either photograph of the first respondent or his father, or name of the first respondent was printed. On 5.4.2009, Manthani police seized an Eicher van bearing no.AP 23T 9440 carrying Congress-I party canvassing material and registered crime no.53 of 2009 against the driver Challoji Ravi, s/o. Mallesam, and a panchanama was conducted whereunder the election material was seized containing photographs of first respondent and his father with ‘hand’ symbol and a slogan ‘I Love Manthani’. The election material seized are as follows: (1) 10,162 Nos. banners; (2) 11,374 Nos. cotton Flags; (3) 620 Flexis; (4) Multi-coloured wall posters (weight of the bundles containing the wall posters is 359 Kgs); (5) 30,350 Nos. caps; (6) 384 Nos. T-shirts and (7) Total cost of hand bills, pamphlets, face masks, door stickers and badges comes to Rs.5,00,000/- as per the suggested rates fixed by the District Election Officer. One G.Satyanarayana Raju, President of Mandal Congress Committee, Manthani made a claim petition before the Mandal Executive Magistrate, on 8.4.2009 and the petitioner filed objection before the Mandal Executive Magistrate on 9.4.2009. But, the Mandal Executive Magistrate ordered release of the material, except T-shirts, in favour of said G.Satyanarayana Raju, and the said material was used for the purpose of canvassing by the first respondent. On 5.4.2009, Sub Inspector of Police, Manthani seized Rs.6,900/- net cash, which was not explained, and 17 cricket kit bags from the house of one Panakanti Sadashiv, who is relative of the first respondent, and 12 cricket bags from an adjacent house of one Asgar Hussain, and registered a case in crime no.54 of 2009 of Manthani police station. The said material was brought to the knowledge of first respondent for the purpose of using the same during election campaigning. Further, Regonda police of Warangal district seized an Eicher DCM van bearing no.AP36T 7713 on 26.3.2009 and seized 300 drums which carry name of the first respondent and hand symbol, and registered a case in crime no.69 of 2009 against the first respondent and three others, and in this regard, a case in C.C. No.192 of 2009 is pending before the Judicial Magistrate of First Class, Parkal for the offences under Sections 171 (e), 171(f) and 188 IPC. Name of the printer or publisher or other requirements are not given, as required under Section 127 (A) of the RP Act, 1951, on any of the material seized which was meant for the purpose of election of the first respondent. This was a device to screen the expenditure incurred either by first respondent or on his behalf from the account of election expenditure. So, the expenditure incurred by the first respondent during the election, as per the rates fixed by the District Election Officer or by the witnesses of panchanama, exceeded Rs.35,00,000/-, which does not include the expenditure incurred by him towards the vehicles used by him or by any other persons towards vehicles. Hence, the election of the first respondent as a member of 24 Manthani Assembly Constituency is void and liable to be set aside. 3. The first respondent filed his counter affidavit denying all the material allegations made by the petitioner and contending that the Election Petition is vague, frivolous, vexatious and did not set out concise material facts and without any pleadings and ingredients for constituting cause of action required under Sections 83, 100 r/w. 77 and 123 of the RP Act, 1951, and the same is liable to be rejected. The first respondent admitted his election as Member of Legislative Assembly from 24- Manthani Assembly Constituency in the years 1999 and 2004, and also in 2009. In view of the considerable public service rendered by the first respondent and his family, their family got reputation in Karimnagar district. Candidates contesting in various elections on behalf of Congress party in Karimnagar district, carried the slogans and photographs of first respondent and his father along with other State and Central leaders of the party. In view of certainty of success of the first respondent in the election, from the beginning of the elections, the petitioner made false complaints to the election authorities to create some cause of action for questioning validity of his election with mala fide and ulterior motive. It is further stated that, Manthani police seized Congress party Peddapalli Parliamentary Constituency election publicity material and registered case in crime no.53 of 2009. The first respondent admitted release of the said material by the Tahsildar and Mandal Executive Magistrate, Manthani in favour of G.Satyanarayana Raju, President of Mandal Congress Committee, Manthani, and also registration of case in crime no.54 of 2009 by Manthani police. It is further stated that, the first respondent did not use the said material seized in any of the above three crimes or authorized or consented to any person using the same on his behalf in the election. The first respondent has not incurred or authorized the election expenditure in contravention of Section 77 of the RP Act, 1951. There is no pleading in the petition that the alleged excessive expenditure was incurred between the date of nomination of first respondent and the date of declaration of his result, and in the absence of the same, sub-section (3) of Section 77 and Section 123 (6) do not attract. The first respondent used election publicity material supplied by the Congress Party for Manthani Constituency viz. banners, posters, pamphlets, door stickers, badges, etc. and the expenses of the said material has been accounted as election expenditure in the return filed by the first respondent under Section 78 of the RP Act 1951, and the said material has not been printed or published by him is false. The first respondent has not indulged in any corrupt practices and never incurred expenditure during the said election exceeding the prescribed limit under Rule 90 of Conduct of Election Rules, 1961. No material has been seized by police either from custody of first respondent or his election agent(s) or supporters or members of political party connected with his election. The first respondent did not exceed the expenditure even according to the rates suggested by the District Election Officer/Collector, Karimnagar. The first respondent neither used material viz. banners, cotton flags, flexis, caps, wall posters, hand bills, pamphlets, face masks, door stickers and badges, nor prepared any other material including cricket kits, T- shirts and drums. The Mandal Executive Magistrate, Manthani released the material seized in crime no.53 of 2009 of Manthani police station stating that the said material is congress party canvassing material pertaining to Peddapalli Parliamentary Constituency sent by Andhra Pradesh Congress Committee to the District Congress Committee, Karimnagar. The petitioner has not set out any material facts or particulars, names of persons alleged to have used the said material, date and place of the use of the material, the nature of use of mode of the said material. As regards the crime no.54 of 2009 of Manthani police station, the said accused are not relatives of first respondent, and the said material seized was not brought to Manthani to his knowledge for the purpose of using in election campaigning. The first respondent has no connection with the material seized in crime no.69 of 2009 of Regonda police station, and the above crime was registered on 26.3.2009 i.e. prior to filing of nomination by the first respondent and so it is outside the scope of Section 77 of the RP Act, 1951. Printing of name of the printer and publisher on the election material is a legal requirement under Section 127-A of the RP Act, 1951. The petitioner impleaded the first respondent as ‘Duddilla Sridhar @ Duddilla Sridhar Babu, and the petitioner being one of the contesting candidates, is well aware of name of the first respondent appearing in the Certificate issued by the Returning Officer, and inspite of the same, he impleaded the first respondent with wrong description, and so it amounts to non-compliance of Section 82 of the RP Act, 1951. The affidavit filed as required under Section 83 of the RP Act, 1951 read with Rule 94A in Form 25 of Conduct of Election Rules, 1961, is not in accordance with the prescribed form and totally in variance with the election petition. The petitioner has not specified the name of the corrupt practices in terms of the pleadings of the election petition. The verification made in the Election Petition and its annexures is not in accordance with Order VI Rule 15 CPC. The allegations of the petitioner lack material facts and material particulars, and the petitioner neither made out any case nor pleaded the specified grounds or ingredients as required under sub-section (1) of Section 100 of the RP Act, 1951, and in the absence of concise facts, the election petition is not maintainable. Hence, he prayed to dismiss the Election Petition. 4. Basing on the above pleadings, the following issues were settled. (1) Whether R1 incurred expenditure exceeding Rs.35,00,000/- contrary to the exceeding limit of election expenses fixed by the Rules? (2) Whether the election petition lacks material facts and particulars, grounds and ingredients within the meaning of Sections 77, 83, 100 and 123 of the Representation of the People Act, 1951 for constituting complete cause of action for declaration of election of the returned candidate, as void ? (3) Whether joining of returned candidate as first respondent as Duddilla Sridhar @ Duddilla Sridhar Babu is in conformity with the certificate issued by the Returning Officer under Rule 66 of the Conduct of Elections Rules, 1961, and whether it amounts to non- compliance of Section 82 of the Representation of People Act, 1951 ? (4) Whether the affidavit filed by the election petitioner under Rule 94A of the Conduct of Election Rules, 1961 is in conformity of Section 83 (1) (C) of the Representation of People Act, 1951 ? (5) to what relief ? 5. During trial, P.Ws. 1 to 5 are examined and Exs.P1 to P40 are marked, on behalf of the petitioner, and R.Ws. 1 and 2 are examined and Exs.R1 to R8 are marked, on behalf of the first respondent. 6. The learned senior counsel Sri Bojja Tarakam appearing for the election petitioner contended that during 2009 elections in relation to 27 Manthani Assembly Constituency, the first respondent published and used banners, posters, pamphlets, door stickers, badges, etc. in election campaigning, incurring expenditure exceeding Rs.35,00,000/- (Rupees thirty five lakhs only); that the expenditure limit of election expenses fixed by the Ministry of Law & Justice (Legislative Department) for an assembly constituency in Andhra Pradesh state is only Rs.10,00,000/- (Rupees ten lakhs only); that the other material prepared by the first respondent for the purpose of using in the elections contained photographs of first respondent and his father and most of the materials were seized by the Manthani police, who registered a case in crime no.53 of 2009, and as per the seizure panchanama, police seized banners, cotton flags, flexis, multi-coloured wall posters, caps and T-shirts, whose value is more than Rs.35,00,000/- as per the estimation of suggested rates fixed by the District Election Officer; that, on the claim petition filed by one G.Satyanarayana Raju, President of Mandal Congress Committee, Manthani, the Mandal Executive Magistrate, Manthani released all the materials seized, except T-shirts; that, the said materials were used for the purpose of canvassing on behalf of the first respondent; that the expenditure on entire materials used in the election campaign is incurred by none other than the first respondent. It is further contended that though the ground taken for challenging the election of the returned candidate is under Section 100 (1) (b) of the RP Act, 1951, which stipulates that corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, and that though the Section of law as mentioned in the election petition is Section 100 (1) (d) of the RP Act, 1951, that the result of the election, in so far it concerns the returned candidate, has been materially affected by any corrupt practices committed in the interests of the returned candidate by an agent other than his election agent, are not applicable and he is not pressing the two grounds viz. Section 100 (1) (b) and Section 100 (1) (d) of the RP Act, 1951. The learned senior counsel appearing for the petitioner contends that the only ground on which the petitioner is seeking for declaration of the returned candidate as void is under Section 123 (6) of the RP Act, 1951 as the returned candidate incurred or authorised expenditure in contravention of Section 77 of the Act, which mandates that every candidate at the election shall either by himself or his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent, between the date on which he has been nominated and the date of declaration of result thereof, both the dates inclusive, and that clause (3) of Section 77 of the RP Act, 1951 contains that the total of the said expenditure in connection with the election shall not exceed such amount as may be prescribed. The learned senior counsel further contended that it is in the evidence of P.W.1 that R.W.1 got his election materials published and arranged them to be brought to Manthani constituency for the distribution to voters; that, when the said materials were being brought to the Manthani, police seized the same, which contained various election material whose value is more than Rs.35,00,000/-, and registered crime no.53 of 2009; that, the Mandal Congress President of Manthani mandal G. Satyanarayana Raju, obtained release of the materials seized in crime no.53 of 2009 of Manthani police, and the same were used in the election; that, as per the suggested rates issued by the District Collector, the estimated value of the materials seized by police and obtained custody by the said G. Satyanarayana Raju is more than Rs.35,00,000/-; that the election expenditure submitted by the first respondent does not show the real expenditure; that, under the RP Act, 1951, name of printer and publisher of pamphlets, flexis and other materials should be displayed; that, even the first respondent admitted that cotton flags, flexis and multi-coloured wall posters were used during the election campaigning; that, there is no specific denial of using the materials which were obtained by way of custody from the Mandal Executive Magistrate, Manthani, and that the materials are connected with the Manthani Assembly Constituency; that, the said G.Satyanarayana Raju, President of Manthani Mandal Congress Committee, who obtained custody of the seized material, and the person who sent the material to Manthani constituency, are not examined to show that the materials are relating to exclusive use in parliamentary constituency of Peddapalli; that, under Exs.P35 and P36, the expenditure incurred is not as per the suggested rates, and as per Ex.R7, the document filed by the first respondent, value of the several items as mentioned therein, is calculated as per the suggested rates; the expenditure incurred would definitely exceed Rs.10,00,000/-; that, even as per the expenditure statement submitted by the first respondent, the value of the election materials is calculated as per the suggested rates and its value is more than Rs.26,00,000/-, and therefore, the first respondent committed corrupt practices within the meaning of Section 123 (6) of the RP Act, 1951, and therefore his election has to be declared as void. 7. On the other hand, the learned senior counsel Sri K.Ramakrishna Reddy, appearing for the first respondent vehemently contended that no concise material facts are pleaded so as to constitute a cause of action and consequently to challenge the election of the first respondent, the facts in issue are not averred in the election petition; that the averments made in the election petition cannot make out a case of corrupt practice allegedly committed by the first respondent; that, nowhere in the election petition, it is pleaded that the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent, committed corrupt practices, and the allegations in the election petition would go to show that the seized materials were used for the purpose of canvassing on behalf of the first respondent; that Section 100 (1) (d) (ii) of the RP Act, 1951 is not applicable to the facts of the case; that, under Section 83 (1) (b) of the RP Act, 1951, the election petitioner shall set forth full particulars of the corrupt practices, including the names of the persons alleged to have committed such corrupt practices and the date and place of commission of each of such corrupt practices, but the same are lacking in this election petition; that, corrupt practices as mentioned in Section 123(6) of the Act must be read with sub-section (3) of Section 77 of the RP Act, 1951 in so far as this case is concerned, and the allegations in the petition would not attract Section 100 (1) (b) of the Act, relating to corrupt practices because it is the specific case of the petitioner that the expenditure incurred by the returned candidate is more than the prescribed statutory limit of Rs.10,00,000/-; that the statement of election expenditure as submitted by the returned candidate, is not under challenge before this court, as there is no pleading and evidence on that aspect; that the entire pleadings in the election petition are vague and inconsistent; that, there is no exactitude of precise material facts and that there is absolutely no pleading and evidence to impeach the correctness or otherwise of Ex.R7, the election expenditure return submitted by the first respondent; that the materials seized in crime no.53 of 2009 are not shown to have been used by the first respondent or his election agent; that the affidavit filed in lieu of the chief-examination filed by P.W.1 is not properly verified as required under the provisions of Code of Civil Procedure, 1908 and therefore the entire chief-examination of P.W.1 has to be eschewed from consideration; that the pleadings have not been verified in the manner required under law; that the source of information viz. from which television or electronic media or person, the materials in crime no.53 of 2009 were seized, is not pleaded; that the election petitioner failed to show under which sub-section of Section 77 of the RP Act, 1951, the case falls so as to declare the election of the returned candidate as void; that there is no allegation in the pleadings that the returned candidate incurred the expenditure exceeding Rs.10,00,000/- from the date of nomination till the date of election, and hence, he prayed to dismiss the Election Petition. 8. Both the counsel placed reliance on several decisions of the Apex Court, which will be referred to at appropriate time. 9. ISSUE Nos.2 and 4 :- Whether the election petition lacks material facts and particulars, grounds and ingredients within the meaning of Sections 77, 83, 100 and 123 of the Representation of the People Act, 1951 for constituting complete cause of action for declaration of election of the returned candidate, as void ? AND Whether the affidavit filed by the election petitioner under Rule 94A of the Conduct of Election Rules, 1961 is in conformity of Section 83 (1) (C) of the Representation of People Act, 1951 ? The Election Petition is filed under Sections 81 read with 77, 100 (1) (b) (d) (ii) and 123 (1) (A) of the RP Act, 1951. Section 100 (1) (b) of the R.P. Act provides that subject to the provisions of sub-section (2), if the High Court is of the opinion that the corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, then the High Court shall declare the election of the returned candidate to be void. Similarly, Section 100 (1) (d) of the R.P. Act, 1951 provides that the result of the election in so far as it concerns with the returned candidate, has been material affected by any corrupt practice committed in the interests of returned candidate, by an agent other than his election agent. During the course of arguments, the learned senior counsel appearing for the petitioner fairly conceded that the case of the election petitioner does not come either under Section 100 (1) (b) or 100 (1) (d) of the RP Act,