IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Election Petition No.1 of 2009 and Election Application No.172 of 2009 Between: N. Ramchander Rao .. Petitioner AND Dr. K. Nageshwar and others .. Respondents COMON ORDER: Election Petition No.1 of 2009 is to declare the election of the 1st respondent as the returned candidate from Mahaboobnagar – Ranga Reddy – Hyderabad Graduates Constituency of Andhra Pradesh Legislative Council in the election held on 06-02-2009 as illegal and void and further to declare the petitioner as duly elected to the said Constituency in the said election after making recount of the rejected votes polled in favour of the petitioner. Election Application No.172 of 2009 therein is to direct the Returning Officer of the said Constituency/10th respondent to produce the rejected ballot papers before the Court. In pursuance of the election notification issued on 05-01- 2009 for holding elections from the Graduates’ Constituencies and some other Constituencies to the Andhra Pradesh Legislative Council, the election to the Mahaboobnagar – Ranga Reddy – Hyderabad Graduates’ Constituency was held on 06-02-2009, which election was contested by the election petitioner and respondents 1 to 9. Respondents 10 to 12 are the Returning Officer and the Assistant Returning Officers. The counting of votes was held on 09-02-2009 and the results were declared in the early hours of 10-02-2009. Out of the total 57,303 votes polled, 52,398 votes were valid and 4,905 votes were rejected. The quotient/ratio to win the election was fixed at 26,200 votes by the Returning Officer and in the first count, the election petitioner and the 1st respondent secured 24,466 and 24,763 votes respectively with a difference of 297 votes. In the elimination process, respondents 2 to 9 were eliminated and still the election petitioner and the 1st respondent did not secure the required number of votes to be declared elected. The 1st respondent was ahead by 436 votes than the election petitioner and then the Returning Officer eliminated the election petitioner by adding the second preference votes given by the voters to the 1st respondent out of the first preference votes in favour of the petitioner and declared the 1st respondent as elected by a majority of 12,966 votes. The grievance of the election petitioner is that the illegalities and irregularities committed during the process of counting of votes materially affected the result of the election. Out of 4,905 ballot papers, which were rejected on illegal and untenable grounds, about 3,200 votes were polled in favour of the election petitioner. A proper counting would have resulted in the declaration of the election petitioner as duly elected. At counting hall No.14, the first round of counting of votes was completed in five rounds, keeping the doubtful votes at each counting table in a separate compartment and bringing them to the table of the Returning Officer. At that table with one Assistant Returning Officer, Sri K. Anthony Reddy, election agent of the election petitioner raised objections against every improperly counted vote. When one more table was also arranged in respect of the doubtful votes at the Returning Officer’s table, Sri K. Anthony Reddy and Sri L. Prabhaker Reddy were present at the second and first Assistant Returning Officers’ tables respectively and raised objections against every irregularity in counting. The election petitioner also noticed irregularities in counting while going round from table to table throughout the process of counting. The Returning Officer and the Assistant Returning Officers did not accede to the objections raised by the election petitioner, Sri K. Anthony Reddy and Sri L. Prabhaker Reddy and took hasty and arbitrary decisions to invalidate several votes polled in favour of the election petitioner materially affecting the result of the election. The election petitioner contended further that out of 4,905 rejected votes, nearly 2,200 votes had put (Ö) mark in favour of the election petitioner, which were illegally rejected. Nearly 800 votes polled in favour of the election petitioner were illegally rejected on the ground that the said votes were marked with the own pen of the voters instead of using the violet sketch pen (instrument) to be supplied by the Presiding Officer. Nearly 100 votes polled in favour of the election petitioner were illegally rejected, as the first preference was indicated with (x) mark. Nearly 100 votes were rejected on the ground that (1st) was marked instead of putting the numeral ‘1’. In the votes with (Ö) mark or (x) mark or (1st) mark, there was no other mark in favour of any other candidate and under the Explanation to Rule 73(2) of the Conduct of Elections Rules, 1961, the vote may be marked in the international form of Indian numerals or in the Roman form or in the form used in any Indian language, but not in words. The manner of marking was only illustrative but not exhaustive, except that the preference should not be indicated in words. The elections to the Legislative Council were revived after a period of 20 years and the Presiding Officers did not explain the method of voting to the voters who were unfamiliar with the manner of voting. When the intention of the voter is clear and the voter cannot be identified by such marking, all such votes with (Ö) mark or (x) mark or (1st) mark should be treated as valid. Nearly 800 first preference votes were marked with the own pen of the voters due to non-supply of instruments (pens) by the Presiding Officers at the polling stations like in polling station No.113, where the instruments (pens) were supplied after five hours after commencement of the poll, by which time 70 per cent of the votes were polled by the voters with their own pen. The rejection of votes of such nature in spite of objections by the agents of the election petitioner materially affected the result of the election. If the said 3,200 votes validly polled were counted, the election petitioner would have been elected and Sri Anthony Reddy and Sri L. Prabhaker Reddy noted the rejected ballot papers to the extent possible. Even the electronic and print media witnessing the counting reported about invalidation of about 3,000 votes validly polled in favour of the election petitioner and Sri Anthony Reddy filed an objection petition before the Returning Officer after elimination of the 8th respondent and before declaration of the result, but no orders were passed on the petition. Hence, E.A. No.172 of 2009 to produce all the rejected ballot papers and E.P. No.1 of 2009 to make a recount of the said votes and for consequential reliefs. Respondents 7 and 8, two of the contesting candidates, agreeing with the allegations of the election petitioner, also desired that the result of the election be set aside after a recount of votes. The 1st respondent and respondents 10 to 12 in separate written statements pleaded that after the end of 9th round of counting and elimination of respondents 2 to 9, the 1st respondent was leading by 436 votes. But as the election petitioner and the 1st respondent could not secure the required quotient to get elected, the 1st respondent was declared elected by following the process of exclusion of the candidate lowest on the poll. The counting of votes was carried out in the presence of all the contesting candidates and their agents duly showing and apprising the cause of rejection of votes, for which no candidate or election agent or counting agent including the election petitioner and his agents raised any objection. The process of counting after completion of every round of elimination of candidates was acknowledged and it was as envisaged in para 12.1 of Chapter XII of Hand Book for Returning Officers and para 8, Chapter XI of Annexure-XXI thereof. As per para 13 of Chapter XII of the said Hand Book and Rule 37-A and Rule 73(2)(a) of the Conduct of Elections Rules, 1961, the voters should indicate their preference by figures and not by words. Elections to the Legislative Council were held in 2007 and awareness programmes were taken up and the present election is only a biennial election due to retirement of some members. The alleged absence of familiarity of voters with voting process is, hence, incorrect. All the Presiding Officers in respect of 413 polling stations including polling station No.113 were supplied with all the election material including adequate number of violet sketch pens for marking preferential votes on the ballot paper and absolutely no complaints of any sort including about any non-supply of violet sketch pens were received. The electorate were instructed through pamphlets about the system and procedure of the election and important instructions were also displayed outside the polling stations. Such pamphlets were distributed to all political parties in the meeting held with them and the alleged non-supply of instruments for marking is an after- thought. The alleged noting of rejected ballot papers by Sri Anthony Reddy and Sri Prabhaker Reddy is false and the news item in ‘Vaartha’, dated 10-02-2009 is only hearsay given by the election petitioner himself. There was no valid request for recount and the conduct of election, counting of votes and declaration of result were strictly in accordance with law and the instructions of the Election Commission of India. The fair and transparent election process cannot be interfered with and the 1st respondent sought for dismissal of the election petition. On such pleadings, the following issues were settled for trial and determination of the election petition: 1. Whether the rejection of 4,905 ballot papers during counting was illegal and untenable on various grounds raised by the election petitioner ? 2. Whether about 3,200 votes out of the said rejected 4,905 votes have to be counted in favour of the petitioner ? 3. Whether the said irregularity in rejecting 4,905 votes materially affected the result of the election ? 4. Whether the rejected votes are liable to be recounted ? 5. Whether the election of the 1st respondent is to be declared as illegal and void ? 6. Whether the petitioner is entitled to be declared as elected ? and 7. To what relief ? P.Ws.1 to 3 and R.W.1 were examined and Exs.A.1 to A.7 and R.1 to R.5 were marked during the trial. Sri B. Adinarayana Rao, learned counsel representing Sri Muvva Chandrasekhara Rao, learned counsel for the election petitioner, Sri V. Raghu, learned counsel for the 1st respondent, Sri C. Pratap Reddy, learned counsel for respondents 7 and 8 and Sri P. Kesava Rao, learned counsel representing Sri R. Ramachandra Reddy, learned counsel for respondents 10 to 12 are heard. Issue Nos.1 to 3: The legal principles governing a request for scrutiny and recount on allegations of miscount or improper rejection of valid votes were laid down in Shradha Devi v. Krishna Chandra Pant[1] referred to by Sri B. Adinarayana Rao, learned counsel for the election petitioner. That was a biennial election to the Rajya Sabha and improper rejection and improper reception of votes, was the ground of challenge. The Apex Court laid down that when a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established, a recount can be ordered. If the allegation is of improper rejection of valid votes, which is covered by the broad spectrum of scrutiny and recount because of miscount, the petitioner must furnish prima facie proof of such error. The Supreme Court held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. The Apex Court with specific reference to Rule 37-A and Rule 73(2) of the Conduct of Elections Rules, 1961 observed that the expression ‘shall’ in Rule 37-A(2)(a) demonstrates the mandate of the Section ……. and sub-clause (c) of sub-rule (2) of Rule 73 further brings out the intendment of the provision. It was consequently held that it necessarily follows that when voting is in accordance with the proportional representation by means of the single transferable vote, it is obligatory to cast the first preference vote for ensuring the validity of the ballot paper and the first preference vote must be so cast as not to leave any one in doubt about it and Rule 73(2) is exhaustive of the grounds on which a ballot paper at a voting at election by Assembly members shall be rejected as invalid. The Supreme Court cautioned against charting the easy course of rejecting ballot papers as invalid under the slightest pretext, but serious attempt should be made before rejecting ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient clarity revealing his intendment. Even earlier a Constitution Bench of the Supreme Court in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem District and others[2], relied on by the learned counsel for the contesting respondents, held that the Representation of the People Act, 1951 is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder. Observing that where a right or liability is created by a Statute, which gives a special remedy for enforcing it, the remedy provided by that Statute only must be availed of, the Supreme Court pointed out that the right to vote or stand as a candidate for election is not a civil right but is a creature of Statute or special law and must be subject to the limitations imposed by it. In Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and others[3], also relied on by the learned counsel for the contesting respondents, the Supreme Court reiterated the salutary principle that since an order for inspection and recount of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. Two basic requirements must be prima facie satisfied, namely, that the election petition seeking recount of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded and that on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary. The Supreme Court quoted with approval the observations in Vadivelu v. Sundaram and others (2000 AIR SCW 3664) that recount of votes could be ordered very rarely and secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting and the Court can resort to recount of votes to do justice between the parties, if it is proved that purity of elections has been tarnished and it has materially affected the result of the election, whereby the defeated candidate is seriously prejudiced. In its latest pronouncement in Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another[4], the Apex Court was dealing with non-compliance with the provisions of the Representation of the People Act, 1951 and the Conduct of Elections Rules, 1961 by the officers who were incharge of the conduct of the election and not by the elected candidate. It pointed out that success of a winning candidate at an election cannot be lightly interfered with and this is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. It was also pointed out that the standard of proof to be adopted, while judging the question whether the result of the election in so far as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond pale of doubt and not the test of proof of broad probabilities or sufficiency of evidence. In the present case also, the election of the successful candidate is sought to be set aside due to the alleged fault of the Returning Officer and the Assistant Returning Officers in counting of votes and the principle that an election of a winning candidate cannot be lightly interfered with without proof beyond reasonable doubt or beyond pale of doubt under such circumstances has to be kept in view. It should also be kept in view that the sacrosanct secrecy of ballot cannot be lightly disturbed by bare allegations of irregularity or illegality in counting but only on proof of specific allegations in the pleadings showing the result of the election being materially affected thereby. In considering such material affect on the result of the election by any alleged irregularity or illegality, the self-contained Representation of the People Act, 1951 and the Rules made thereunder alone have to be looked at. The mandatory provisions of Rules 37-A and 73 of the Conduct of Elections Rules, 1961, hence, form the primary basis for appreciation and determination of the questions in controversy herein. The election petitioner as P.W.1 stated that except those irregularities and illegalities mentioned specifically in his chief- examination affidavit, there were no other specified illegalities and irregularities. He stated his claim about improper rejection of 3,200 votes polled in his favour to be based on his own personal observation and also the information from his counting agents. While he admitted that the Returning Officer conducted a meeting with all the candidates and their election agents before the election to explain the manner and method of the election, he did not attend that meeting, but verified what transpired therein from his election agent. He also admitted that there was no written complaint by him or on his behalf about the Presiding Officer of polling station No.113 not supplying pens till after five hours after commencement of the polling and the alleged oral objection by his polling agent was not corroborated by examining the said polling agent or any other direct witness to such objection. P.W.1’s claim that the mistake was corrected by the time he complained to the Returning Officer, due to which he did not give any complaint in writing, is also uncorroborated and he admittedly was not present at polling station No.113 and could not say how many votes were polled before the Presiding Officer supplied the pens. The efforts by political parties and the election officials to educate the voters on the method of voting were admitted by P.W.1, who also admitted that as per page 119 of Ex.R.1 Hand Book for candidates putting an (x) mark or (Ö) mark opposite the name of a candidate was shown as an example of an invalid ballot paper. P.W.1 also admitted that about 800 votes invalidated for marking with different instruments emanated from different polling booths and not from polling booth No.113 alone, but the details of other polling booths were not given in the petition or by him. P.W.1 also admitted that he did not raise any objection concerning the matters raised in the election petition before any Zonal Officer. He further admitted that before declaring 4,905 votes as rejected, they were shown to the candidates or their counting agents present during the counting process and then only they were so declared. P.W.2, the election agent of P.W.1, stated in his deposition about himself and Prabhaker Reddy raising objections to the rejection of votes as specified in the election petition and his filing Ex.A.8 (Ex.A.7) objection petition before declaration of the result, in which no orders were passed by the election officials. He claimed Ex.A.6 to be notings made by him during the process of counting regarding invalid votes and Ex.A.7 was admitted by him to have been acknowledged by the Assistant Returning Officer only after the seventh round of elimination, though it was presented during the process of counting itself. While P.W.2 made the notings in respect of the invalidated votes only in respect of tables 1 and 2 in round No.1, there were no other documents to show any such notings on the spot by any of the 14 counting agents of P.W.1 or the spare counting agent. P.W.2 was unaware whether voters have to exercise their option only with the pen supplied by the Returning Officer as prescribed in the Hand Book for candidates and his claim about the presence of Election Observer at the time he raised his objection before the Returning Officer, was not specified earlier. P.W.3, the counting agent of P.W.1, also claimed about himself and P.W.2 raising objections against improper rejection of votes as alleged and the absence of any orders on Ex.A.7 objection petition. P.W.3 could not say whether Ex.A.7 was presented after the elimination of the 8th respondent. While he also stated about there being 14 counting agents on behalf of P.W.1, he denied Exs.A.6(a) to (d) being prepared subsequently for the purposes of election petition. The Assistant Returning Officer, who deposed as R.W.1, referred to Ex.R.5 Hand Book for Returning Officers issued by the Election Commission of India and claimed that the Returning Officer alone declared the invalid votes in this election. Grounds of invalidation were stated by him to be specified at pages 337 and 338 of Ex.R.5 and he denied any delayed supply of election material more particularly adequate number of violet sketch pens at polling station No.113, though he does not remember who was the Presiding Officer in polling station No.113. He claimed that the manner and method of voting were widely publicized to voters through electronic and print media and by conduct of meetings with the contesting candidates and their election agents, proof of which can be furnished by him. He, thus, contradicted the claims of P.Ws.1 to 3 in this regard about the inadequacy of information to the voters. He also specified that P.W.2 and another representing P.W.1 did not object to the invalidation of any vote. Ex.A.5 news report in ‘Vaartha’, dated 09-02-2009 alleged that about three thousand votes polled in favour of the election petitioner were considered invalid by the election officials due to violation of the election rules. Apart from the report being not specified to be on any direct knowledge, the invalidation was stated by the report itself to be due to ticking opposite the name of the election petitioner in the ballots against the election rules. Ex.A.6 including Exs.A.6(a) to (d) are the alleged notings made by P.Ws.2 and 3 about the details of invalidation of votes, which throw no light on the correctness or otherwise of such invalidation. Ex.A.7 request by P.W.2 to the Returning Officer for counting the rejected votes in favour of the election petitioner on identical grounds raised herein was received by the Assistant Returning Officer by 10.20 P.M. on 09-02-2009 as acknowledged on it and obviously no orders were passed thereon. Before proceeding to consider the effect and consequences of such evidence, Rule 37-A and Rule 73(2) of the Conduct of Elections Rules, 1961 may be usefully extracted for reference: “37-A. Method of voting:- (1) Every elector has only one vote at an election irrespective of the number of seats to be filled. (1-A) The provisions of sub-rules (1), (2) and (4) of rule 37, shall apply in relation to electors in the graduates’ constituencies and teachers’ constituencies as they apply in relation to electors in the Parliamentary constituencies and