IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Election Petition No.6 of 2009 Between: Paul S. David .. Petitioner AND Returning Officer 60 – Khairatabad Assembly Constituency, Zonal Commissioner,(Central Zone), G H M C, Hyderabad and others .. Respondents ORDER: The election petition is filed for the relief of declaration that the election held on 16-04-2009 from 60–Khairatabad Assembly Constituency is ab initio void and for a consequential direction to the respondents to conduct a fresh election to the above said Constituency. The election petitioner alleged that in pursuance of the notification issued by the Election Commission of India on 04-03-2009 in respect of General Elections to the State Legislative Assembly and Lok Sabha, he filed his nomination on 28-03-2009 to contest from 60–Khairatabad Assembly Constituency and on approval of his nomination, he was issued candidate identity card No.1 to contest as an independent candidate. The election petitioner stood at serial No.12 among the contesting candidates and he was asked by a letter, dated 07-04-2009 to attend at Kotla Vijaya Bhaskar Reddy Stadium on 09-04-2009 at 9.00 A.M. to evidence the randomization of the electronic voting machines. The Retuning Officer showed the control units and ballot units to be used on the polling day to the election petitioner and other candidates following the procedure laid down in the Handbook for Presiding Officers prescribed by the Election Commission of India. Randomization was conducted and the units were frozen after they were found correct and copies of the randomization lists were furnished to the election petitioner signed by the Returning Officer. Again the Returning Officer asked the election petitioner to attend the meeting at 8.00 A.M. on 16-05-2009 at Sri Kotla Vijaya Bhaskar Reddy Indoor Stadium where counting will be commenced and the election petitioner was announced to have received 154 votes only, which was shocking. The Returning Officer addressed letters dated 09-04-2009 and 15-04-2009 without any reason, while the control units and ballot units were found to be in perfect condition during demonstration at the time of randomization. The sealed units confined to the strong room, which has to be locked and sealed by the Returning Officer and by the contesting candidates, shall not be opened and meddled with without the consent of the contesting candidates. However, in the letter, dated 09-04-2009, it was mentioned that unit No.F-92209 in serial No.50 was faulty, control unit No.F-94739 in serial No.6 was wrongly entered and typographical errors were observed at serial Nos.47 and 6. After the units were sealed and confined to the sealed strong room, it was strange as to how the Returning Officer could know that the units were faulty and it was clear from the mention of the serial numbers in the randomization list by the Retuning Officer that he had broken open the strong room in violation of law and rules without any lawful authority and meddled with the units. In the letter, dated 15-04-2009, a mention was made that two ballot unit Nos.09737 and N 06955 of polling station No.123 and control unit No. N 07746 of polling station No.123 were found faulty and not functioning and two ballot unit Nos. N 010446 and N 010335 and one control unit No. N 08323 were replaced from the reserve and allotted to polling station No.123. The alleged ballot units and control unit allegedly allotted to polling station No.123 were not correct and the ballot randomization list shows at serial No.126 ballot unit No.F-91275 and control unit No. N 07746 for polling station No.123 and the replaced control unit No. N 08323 is also incorrect. As the randomization list shows at serial No.78 control unit No.D-45398 for polling station No.123, the reserved units were shown only at specified 18 serial numbers in the randomization of control units list and similar 18 reserved units were shown at specified 18 serial numbers in the randomization list of ballot units also. That apart, the two ballot units and one control unit of polling station No.12 were also found faulty and not functioning and were replaced from the reserve. The numbers of ballot units and control unit for polling station No.12 also are discrepant. When only 16 candidates were contesting, only one ballot unit is to be used, but two ballot units were used and what made the Returning Officer to meddle with the units a day before the polling, is not known. Therefore, it is clear that the respondents violated the law and the Constitution with a mala fide intention and the election petitioner sought for clarification from the official respondents through a letter. Hence, the election petitioner sought for the relief of declaring the action of the Returning Officer as illegal and consequential declaration of the election as void. The Returning Officer in his written statement denied the allegations contending that during randomization on 09-04-2009, ballot unit Nos.09737 and N 06955 and control unit No. N 07746 of polling station No.123 were found faulty and were replaced with ballot unit Nos. N 010446 and N 010335 and control unit No. N 08323 from the reserve. Similarly, two ballot unit Nos. N 07562 and N 06228 and control unit No. N 07107 of polling station No.12 were found faulty and were replaced by two ballot unit Nos. N 010262 and N 10306 and one control unit No. N 08368 from the reserve. The said replacement of electronic voting machines was done for the Parliament elections and not for Assembly elections. The Returning Officer pointed out the faults in the electronic voting machines during randomization on 09-04-2009 only in the presence of the contesting candidates. As the number of candidates was more than 16 i.e. 23 candidates, two ballot units and one control unit were used in each of the polling stations for the Parliament elections, which was informed to the contesting candidates for the Parliament by letter dated 15-04-2009. However, erroneously the letter dated 15-04-2009 was sent to all the contesting candidates of 60– Khairatabad Assembly Constituency and 08–Secunderabad Parliament Constituency without specifying that the replacement of electronic voting machines was meant only for the parliament elections. As the elections were conducted freely and fairly and the letter dated 15-04-2009 was mistakenly addressed to the election petitioner, the Returning Officer sought for dismissal of the election petition. Respondents 2 and 4 adopted the written statement of the 1st respondent. On such pleadings, the following issues were settled for trial and determination of the election petition. (1) Whether any control units and/or ballot units relating to Khairatabad Assembly Constituency were manipulated fraudulently ? (2) Whether the election to the said Constituency was hence vitiated ? (3) To what relief ? P.W.1 and R.W.1 were examined and Ex.P.1 was marked during trial. The arguments of the learned counsel for the parties are heard at length. Issue Nos.1 and 2: The petitioner as P.W.1 while reiterating his claims, claimed to have found that the control units and ballot units as specified after randomization were not tallying with the control units and ballot units specified in the letters dated 09-04-2009 and 15-04- 2009. He stated that the numbers of units mentioned in the two letters never found place in the numbers of units mentioned at the time of randomization and the units specified in the letters were claimed by him to have been introduced in violation of the procedure or in the absence of any provision or procedure. He admitted that he did not seek any further information on the letters under the Right to Information Act nor did he seek any clarification. He denied the suggestions on behalf of the official respondents in tune with the claims made in the written statement of the 1st respondent and P.W.1 admitted that he was not aware of any replacement of electronic voting machines for the Parliament elections, while he also admitted that the series of the units used for the Assembly and Parliament elections are different. He denied the letter dated 15-04-2009 being in relation to the replacement of electronic voting machines for the Parliament elections. Beyond the same, the evidence of P.W.1 does not throw any light on the source of information or basis for the belief for the election petitioner to allege that the Returning Officer in gross violation of law and rules without any lawful authority broke open the strong room, entered and meddled with the units in arbitrary exercise of powers, while his evidence does not show, in any manner, that such allegations made in the election petition are based on any personal knowledge. The alleged use of manipulated electronic voting machines sought to be suggested by the allegations in the election petition was not even specifically reiterated by the election petitioner as P.W.1. The Returning Officer of 60–Khairatabad Assembly Constituency/1st respondent herein reiterated the claim that the replacement of electronic voting machines was made for the Parliament elections and not for the Assembly elections and that the letter, dated 15-04-2009 was addressed to the election petitioner by mistake. He also explained that two ballot units were used for each polling station, as the number of candidates for the Parliament election were 23. He was subjected to rigorous cross- examination on behalf of the election petitioner about the details of the checking of the electronic voting machines since inception till the end of election process and there is no doubt that there was a rigorous check right from the manufacture till the completion of the election process and those details do not throw any particular light on the questions in controversy in the present election petition. The completion of the second level randomization on 09-04-2009 is admitted and R.W.1 asserted that he could state the factual position relating to not only Khairatabad Assembly segment but also Secunderabad Parliament Constituency, as he was the Assistant Returning Officer for the Parliament constituency also, within which the Assembly segment falls. While admitting that the letter dated 15-04-2009 was communicated to all the contesting candidates for the Assembly Constituency also including the election petitioner, the witness reiterated that the ballot units and control units referred to in the letter dated 15-04-2009 were used for the Parliament election and not the Assembly election. He also explained that the defects in the units referred to in the letter, dated 15-04-2009 were disclosed during the check of the units by the Presiding Officers of the polling booths at the time of receipt of the units on 15-04-2009. He stated that the strong room was opened on 15-04-2009 in the presence of all the contesting candidates including the election petitioner and he also referred to the instructions of the Election Commission of India to the effect that any ballot units or control units found defective can be replaced by reserve units at any time before commencement of the poll. He also explained that while they do not indulge in any such checking on the day before the date of polling, the Presiding Officers, who have to receive the units, necessarily check them before they leave the place of distribution. He positively denied any wrongful replacement of the units as alleged in the election petition. While it should be remembered that R.W.1 was acting during the election process and deposing in the matter only in his official capacity and cannot be alleged or attributed with any personal interest in the matter, the evidence of P.W.1, the election petitioner, cannot be considered to be independent evidence untainted with any interestedness. Even if the evidence of both the witnesses is accepted at face value, there is nothing in the evidence of P.W.1 to suggest the alleged manipulation of the electronic voting machines by the officials concerned to be probable, while the evidence of R.W.1 explains the cause for replacement of electronic voting machines in connection with the Parliament elections. The fact that the numbers of the units referred to in the letters dated 09-04-2009 and 15-04-2009 do not tally with the second level randomization of ballot units or control units for 60–Khairatabad Assembly Constituency, is clearly attributable to the fact that the ballot units and control units found to be faulty and replaced by the units from reserve relate to the election to Secunderabad Parliament Constituency, for which admittedly different series of units were used even according to the election petitioner. In so far as the letter dated 09-04-2009 is concerned, the references to ballot unit No.F-92209, control unit No.F-94739 and control unit No.F-92261 were made with reference to the serial Nos.50, 6 and 44 in the second level randomization lists of ballot units and control units and the typographical errors found at serial Nos.47 and 6 of the second level randomization list of control units stated in the letter dated 09-04-2009 with both being marked as F-94739, are corroborated by the said randomization list. Serial No.6 was already stated in the letter to have been replaced, as it was faulty and unusable, while serial No.47 was stated to have been retained. The second level randomization lists of ballot units and control units for the Assembly Constituency also dated 09-04- 2009 do not appear to suggest any irreconcilable inconsistencies in the letter, dated 09-04-2009 and the letter positively stated about the reasons for the replacement of one ballot unit and two control units, obviously during and as a part of the process of second level randomization. In so far as the letter dated 15-04-2009 is concerned, the numbers of ballot units and control units relating to polling station Nos.123 and 12, which were found to be faulty or which were replaced, cannot tally with the randomization lists for the Assembly Constituency, as it is the case of the Returning Officer that the said units relate to the election to the Secunderabad Parliament Constituency. An inadvertent error or mistake in marking copies of the letter dated 15-04-2009 to the contesting candidates in the Assembly Constituency including to the election petitioner, cannot vitiate the election to the Assembly, when such replacement of electronic voting machines is not with reference to the election to the Assembly Constituency, apart from the question whether the officials have the power to replace such units. Sri B. Bhaskar Benny, learned counsel for the election petitioner referred to the Handbook for Returning Officers issued by the Election Commission of India concerning commissioning of electronic voting machines and first level and second level randomization. He specifically brought to the notice of the Court that under Instruction No.4.8 at page 131 of the said book, in case of replacement of control unit or ballot unit due to any reason at any polling station, the Sector Officer or any authorized officer who effects such replacement, shall prepare a special report in that regard with all the necessary details, in answer to which, Smt. Kalpana Ekbote, learned standing counsel for the Returning Officer relied on Instruction No.4.6 at page 130 of the said book, which instructed that at the time of delivery of electronic voting machines to the Presiding Officers, they should be advised to compare the machine number inscribed on the metal label and the adhesive sticker and also verify the polling station number indicated on the sticker compared with the polling station number mentioned in the address tag before accepting the electronic voting machine. The Instruction further directs that discrepancy, if any, shall be brought to the notice of the Officer Incharge of dispatch arrangement and be reconciled. While the various details about different levels of checking contained in the Instructions referred to by the learned counsel for the election petitioner do not appear to have been violated, the only question is whether the replacement of electronic voting machines after second level randomization is permissible or not. But Instruction Nos.4.6 and 4.8 read together show that the Presiding Officers can bring to the notice of the Incharge of dispatch arrangement any discrepancies in the numbers, etc., which have to be reconciled and the control units or ballot units can, undoubtedly, be replaced for any reason, of course, under a special report. Instruction No.4.5 directs that when the electronic voting machines are taken out of the strong room for dispatch to polling stations, the usual practice of informing the date and time of opening of strong room in writing to the candidates/agents shall be followed and it is the claim of R.W.1 that all the prescribed procedures were duly followed. It is, of course, true that any special reports prepared for replacement of control units and ballot units in question are not before this Court, but any further probe into the issue becomes academic in view of the fact that the replacement had, in fact, taken place with reference to the election to Secunderabad Parliament Constituency and not this Assembly Constituency and if anybody interested in the election to Secunderabad Parliament Constituency was aggrieved by the replacement of electronic voting machines, they will take recourse to appropriate remedies provided to them under law, which cannot be the subject of adjudication herein. The learned counsel for the 4th respondent referred to certain precedents and in Hari Ram v. Hari Singh[1], the Supreme Court laid down that roving enquiry cannot be permitted in order to fish out materials to set aside the election and an inspection of the election material cannot be permitted adversely affecting the secrecy and sacrosanct nature of the electoral process. In Rajankumar Shankarrao Teware v. Ajit Anantrao Pawar[2], the Supreme Court pointed out that a prima facie case that the result of the election was materially affected, should be made out for justifying any inspection of the ballot papers. In Dipak Chandra Ruhidas v. Chandan Kumar Sarkar[3], the necessity to have specific material particulars in support of an election petition was emphasized and vagueness was pointed out to be fatal. I n Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan[4] also, the Apex Court pointed out that counting can be ordered only, if the material facts detailing the irregularities in counting are specifically pleaded. Smt. Kalpana Ekbote, learned standing counsel for the 1st respondent also relied on the principles laid down in the above decisions. It can be culled out from the precedential law that specific and certain allegations and not vague suspicions should form the foundation for any challenge to an election and it is not only on the probablisation of the alleged irregularities or illegalities, but also on the further prima facie possibility of the result of the election being materially affected or vitiated by such circumstances that there will be some basis for considering the challenge to an election. The unfounded suspicions of P.W.1 denied with equal vehemence by R.W.1 cannot form the basis for any positive conclusion either in respect of any unauthorized replacement of electronic voting machines or any such replacement of control units and ballot units being in respect of the Assembly election in question. As it is probablised that the letter, dated 15-04-2009 concerns replacement of the electronic voting machines in respect of the Parliament Constituency, the election petition has no basis to sustain itself and in any view, in the absence of any allegation or proof that the result of the election, in so far as it concerns the retuned candidate-the 4th respondent, has been materially affected by any non-compliance with the constitutional or statutory provisions, the election of the returned candidate cannot be declared as void. Under the above circumstances, it is concluded that it is not proved that any control units and/or ballot units relating to Khairatabad Assembly Constituency were manipulated fraudulently and consequently, the election to the said Constituency cannot be concluded to be vitiated. Issue No.3: Under Section 100 of the Representation of the People Act, 1951, the High Court shall declare the election of the returned candidate to be void on the formation of an opinion on any of the contingencies specified in sub-section (1) subject to the provisions of sub-section (2). While the other situations covered by Clauses (a) to (d) of sub-section (1) of Section 100 have no application to the facts and circumstances of the present case, the allegations of the election petitioner can only be construed to be allegations about non-compliance with the provisions of the Constitution or the Representation of the People Act, 1951 or of any rules or orders made under the said Act covered by Section 100 (1) (d) (iv) of the Act. For the High Court to declare the election of the returned candidate to be void, not only such non-compliance should be established, but it should be further shown as per Clause (d) that the result of the election, in so far as it concerns the returned candidate, has been materially affected by such non-compliance. In the present case, either such non-compliance or the result of the election concerning the returned candidate being materially affected by such non-compliance cannot be considered to have been probablised or proved by the pleadings and the evidence on record as detailed in my findings on issues 1 and 2. As the grounds for declaring the election void have to be established beyond all reasonable doubt like in a criminal case as held by the Apex Court recently, the election petition has to fail. But in the peculiar circumstances of the case where the wrong communication from the Retuning Officer to the election petitioner provided some justification for him to suspect impermissible replacement of electronic voting machines, the parties shall be directed to bear their own costs. In the result, the election petition is dismissed without costs and this order shall be communicated to the Election Commission of India and the Speaker of Andhra Pradesh Legislative Assembly forthwith in accordance with Section 103 of the Representation of the People Act, 1951. _____________________ G. BHAVANI PRASAD, J APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR PETITIONER: FOR RESPONDENTS: P.W.1: Paul S David R.W.1: Katamneni Bhaskar (Election Petitioner) (Returning Officer) DOCUMENTS MARKED FOR PETITIONER: Ex.P.1/ -- / List of second level randomization of ballot units for Khairathabad (60) Assembly Constituency, APLA- 2009 FOR RESPONDENTS: Nil _____________________ G. BHAVANI PRASAD, J Date: 22-07-2010 Svv [1] AIR 1984 SUPREME COURT 396 [2] (2002) 4 Supreme Court Cases 631 [3] AIR 2003 SUPREME COURT 3701 [4] AIR 2006 SUPREME COURT 1218