Arikala Narasa Reddy vs Venkataram Reddy Reddygari & Anr

2. Facts and circumstances giving rise to these appeals are that:-

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.

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.

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.

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.

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.

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.

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.

(d) is not worth consideration.

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.

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.