Supreme Court of India
ARIKALA NARASA REDDYversusVENKATA RAM REDDY REDDYGARI & ANR.
- Citation
- 2014 INSC 76
- Decided
- 4 February 2014
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
The Supreme Court held that the High Court erred by expanding the scope of the election petition beyond the four disputed votes; recounts must be limited to pleadings and, when the final tally is equal, the winner is to be selected by draw of lots under Section 102 of the Representation of the People Act.
Summary
The 2009 Legislative Council election for Nizamabad saw a narrow result, leading the defeated candidate to file an election petition alleging wrongful rejection of three votes and wrongful acceptance of one vote. The appellant, who had been declared elected, filed a recrimination petition under Section 97 of the Representation of the People Act. The High Court ordered a full recount of all ballots, expanding the dispute beyond the four votes pleaded, and declared the respondent elected. The Supreme Court held that the court must confine its inquiry to the specific votes pleaded, that recounts require a prima facie case and cannot be a roving inquiry, and that when both candidates end up with equal votes the winner must be chosen by draw of lots under Section 102. Consequently, the High Court's order was modified, the votes were equalised, and the appellant was declared elected by lot. The appeal was disposed in favour of the appellant.
Issues considered
- Whether a court may order a recount of all ballots when the election petition is limited to specific disputed votes.
- Whether the election petition should be restricted to the four votes expressly pleaded.
- Whether Section 87 of the Representation of the People Act mandates the application of the CPC and Evidence Act to election petitions.
- Whether the secrecy of ballot under Section 94 is a sacrosanct principle that limits scrutiny.
- How Rule 73(2)(d) of the Conduct of Elections Rules, 1961, determines invalidity of a ballot due to markings that may identify the voter.
- Whether an election petition and a recrimination petition must be tried simultaneously or sequentially.
- Whether, when both candidates have equal votes after adjudication, the winner must be decided by draw of lots under Section 102.
- What conditions must be satisfied before a court can order a recount of votes.
Legislation cited
- Code of Civil Procedure, 1908
- Conduct of Elections Rules, 1961s. 73(2)(d)
- Indian Evidence Act, 1872
- Representation of the People Act, 1951s. 100, s. 101, s. 102, s. 87, s. 94, s. 97
Subjects
Election petitionRecount of votesRepresentation of the People ActSecrecy of ballotConduct of Elections RulesSection 97 recriminationSection 102 draw of lotsStatutory interpretation
Judgment
[2014] 2 S.C.R. 291
ARIKALA NARASA REDDY A
v.
VENKATA RAM REDDY REDDYGARI & ANR.
(Civil Appeal Nos. 5710-5711 of 2012)
FEBRUARY 4, 2014
B
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
REPRESENTATION OF PEOPLE ACT, 1951:
c
s.87 - Election petition - Applicability of Code of Civil
Procedure, 1908 and Evidence Act, 1872 - Discussed.
ss.97, 100 - Election petition filed on the ground that 3
votes in favour of election petitioner were wrongly rejected and
one vote of Returning Candidate ought to have been declared D
invalid - Order for recounting of votes - Held: Election petition
had raised dispute only about 4 votes and the case should
have been restricted only to that limited question - High Court
wrongly enlarged the 'scope of dispute by counting and
recounting - On consideration of the alleged 4 votes in the E
election petition, it was found that both parties got equal
number of votes - In such a situation, matter required to be
decided by draw of lots u/s.102 of the Act - Lots drawn in the
presence of all parties in open court - Result in favour of
appellant and he succeeded. F
s. 94 - Secrecy of a ballot - Held: Is to be preserved in
view of the statutory provision contained in s. 94 of the Act -
Secrecy of ballot has always been treated as sacrosanct and
indispensable adjunct of free and fair election - Such -principle G
of secrecy is based on public policy aimed to ensure that
voter may vote without fear or favour ?nd is free from_ any
apprehension of its disclosure against his will.
291 H
292 SUPREME COURT REPORTS [2014] 2 S.C.R.
A ss.97, 100 - Election petition and Recrimination petition
- Held: 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
deC/ared to have been duly elected, s. 97 of the Act comes
B 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 u/s.97 have to be tried after a
declaration has been made u/s. 100 of the Act." - If the returned
candidate does not recriminate as required by s.97, then he
c cannot make any attack against the alternative claim made
by the election petitioner.
ELECTION LAWS:
Election dispute - Applicability of doctrine of equity -
D Held: 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
E 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 - Representation
of People Act, 1951.
Recounting of votes - Essential conditions to be satisfied
F - Discussed.
Jurisdiction of court to order recount of votes - Held: Court
cannot exercise discretion of ordering recounting of ballots
just to enable the election petitioner to indulge in a roving
G 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.
H
ARIKALA NARASA REDDY v. VENKATA RAM 293
REDDY REDDYGARI
Instructions contained in the Handbook for Returning A
Officer - Bir.ding effect - Held: 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. B
CONDUCT OF ELECTIONS RULES, 1961: r. 73(2)(d) -
Marking and writing on ballot papers - Held: r. 73(2)(d)
provides that a ballot paper shall be invalid if "there is any
mark or wring by which the elector can be identified. " - There
must be some casual connection between the mark and the C
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 - D
Therefore, such marking or writing must be such as to draw
an inference about the identity of the voter.
PLEADINGS: Held: A decision of the case should not be
based on grounds outside the pleadings of the parties - In E
absence of pleadings, evidence if any, produced by the
parties, cannot be considered - 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.
F
The election for the post of Member of Legislative
Council (MLC) was held on 30.03.2009 wherein out of 706
votes, 701 votes were cast. The votes were counted on
02.04.2009 in which both the parties got 336 each while
29 votes were declared invalid. The appellant asked for G
recounting in which the appellant got 336 while
respondent no. 1 got 335 and the appellant was declared
elected. Respondent no. 1 filed election petition alleging
that 3 votes polled in his favour were wrongly rejected
and one vote of the appellant ought to have been H
294 SUPREME COURT REPORTS [2014] 2 S.C.R.
A declared invalid.
The ap.pellant filed a Recrimination Petition under
Section 97_ of the Representation of People Act, 1951 and
also writte11 statement. Respondent no. 2, the Returning
Officer also filed written statement. Meanwhile, the High
8 Court direeted the Registrar (J) to scrutinize and recount
all the ballot papers and submit report. The appellant filed
SLP against this in which it was ordered that the question
of validity of 3 votes should be decided first and then
recounting be done, if found necessary. Pursuant thereto,
C the High Court on scrutiny held that the said 3 votes (Ex
X-1, X-2, X-3) were wrongly rejected and same be counted
in favour of respondent no. 1. The appellant filed an SLP
against this and it was held that it was not appropriate
to interfere at that stage but the appellant may urge the
D said point at the time of final hearing. 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 two ballot papers were
E picked up from the valid votes of the appellant and
marked the same as Ex.R-1 and R-2 and 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 allowed the election
F 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
G candidate and elected.as MLC. The instant appeals were
filed challenging the order of the High Court.
Disposing of the appeal, the Court
HELD: 1.1 Section 87 of the Representation of
H People Act, 1951 provides that the election petition is to
ARIKALA NARASA REDDY v. VENKATA RAM 295
REDDY REDDYGARI
be tried by the High Court applying the provisions of the A
Code of Civil Procedure, 1908 (CPC) "as nearly as may
be" and in accordance with the procedure applicable
under CPC and the provisions of the Indian Evidence Act,
1872 shall also be applicable subject to the provisions of
the Act. [Para 6] [307-E-F] B
1.2 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 C
dispute. All the technicalities prescribed/mandated in
election law hav~ 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 D
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
\
E
lead.s to formation of a government which requires the
stability and continuity as an essential feature in el~ction
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 F
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 G
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. [Para 7] [307-G-H; 308-A-E]
H
296 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 1.3 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
B 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. [Para 8] [308-E-G]
C 1.4 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
D 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
E 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 f1Jlly alive to the
questions that are likely to be raised and they may have
F 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
G 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
H petitioner sets out his case with precision supported by
ARIKALA ·NARASA REDDY v. VENKATA RAM 297
REDDY REDDYGARI ·
averments of material facts. [Para 9] [308-H; 309-A-E] A
Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors. AIR
1964 SC 1249: 1964 SCR 235; Bhabhi v. Sheo Govind &
Ors. AIR 1975 SC 2117:1975 (0) Suppl. SCR 202; M.
Chinnasamy v. K.C. Palanisamy & Ors. (2004) 6 SCC 341:
B
2003 (6) Suppl. SCR 17 - relied on.
1.5 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 C
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. [Para 1O] [309-G-H]
D
Kalyan Singh Chouhan v. C.P. Joshi AIR 2011SC1127:
2011 (2) SCR 216 - relied on.
2.1 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 E
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. Though secrecy of ballot is an F
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. The issue of marking and writing on
ballot papers is governed by the Conduct of Elections G
Rules, 1961. Rule 73(2)(d) provides that a ballot paper
shall be invalid if "there is any mark or wring by which
the elector can be identified." There must be some casual
connection between the mark and the identity of the
voter and such writing or marking itself must reasonably H
298 SUPREME COURT REPORTS [2014) 2 S.C.R.
A 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
B draw an inference about the identity of the voter. [Para
11 to 14, 17] [310-A-B, E-H; 311-A-B; 313-F-G]
S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra &
Ors. AIR 1980 SC 1362: 1980 SCR 1302; Ku/dip Nayar v.
Union of India & Ors. AIR 2006 SC 3127: 2006 (5) Suppl.
C SCR 1; People's Union for Civil Liberties & Anr. v. Union of
India & Anr. (2013) 10 SCC 1; Dr. Anup Singh v. Shri Abdul
Ghani & Anr. AIR 1965 SC 815: 1965 SCR 38; Era Sezhiyan
v. T.R. Batu & Ors. AIR 1990 SC 838: 1990 SCR 767; Harl
Vishnu Karnath v. Syed Ahmad /shaque & Ors. AIR 1955 SC
D 233: 1955 SCR 1104; Km. Shradha Devi v. Krishna Chandra
Pant & Ors. AIR 1982 SC 1569: 1983 (1) SCR 681 - relied
on.
2.2. Whether election petition and recrimination
E petition have to be tried simultaneously? In a composite
election petitiol} 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
F 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
G 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 hi~
H
ARIKALA NARASA REDDY v. VENKATA RAM 299
REDDY REDDYGARI
recrimination petition. If the returned candidate does not A
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 B
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 C
any pleas against the validity of the claim of the alternative
candidate. [Para 18) [314-A-G]
Jabar Singh v. Genda Lal AIR 1964 SC 1200: 1964 SCR
54; Ram Autar Singh Bhadauria v. Ram Gopal Singh & Ors.
AIR 1975 SC 2182 : 1976 (1) SCR 191; Bhag Mal v. Ch. D
Parbhu Ram & Ors. AIR 1985 SC 150: 1985 (1) SCR 1099 -
relied on.
3. In the instant case, there were 706 total votes, out
of which 701 votes were polled. At the time of initial E
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 F
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. In view of the pleadings in the election petition, G
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
H
300 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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
C 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. (Paras 19 and 20] (314-H;
315-A-F] .
D 4. 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. Instruction 16 of the Handbook deals
E 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. [Para 25] (317-E-G]
F 5. The reasoning given by the High Court with
respect to Ex. X-1 and 2 was correct. 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
G 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, therefore, this
ballot is rejected as being invalid. As regards Ex.Y-13, the
voter has, in addition to putting the mark '1' in front of the
H
ARIKALA NARASA REDDY v. VENKATA RAM 301
REDDY REDDYGARI
name of the respondent no. 1, put his signature as well. A
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. In view
of the above, after modification of the impugned judgment B
and order, the appellant and the respondent no.1 get
equal number of votes i.e. 336 votes each. Therefore, the
judgment ·of the High Court insofar as it relates to
allowing the election petition is modified to that extent.
In· such a fact-situation provisions of Section 102 of the C
Act have to be resorted to, however, as the result of the
election stood materially affected, the recrimination
petition filed by the appellant is considered· first. As
regards the ground (d) it is to be noticed that the same
is non-descriptive and vague. Any ground raised in a
0
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. Coming to ground (a), the same related 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 E
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 F
the respondent no. 1. Ground (b) related 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 G
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 H
302 SUPREME COURT REPORTS [2014] 2 S.C.R.
A scrutinized and examined in such a hyper technical
manner then most of the ballots would only stand
rejected. Hence, 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. However, Ex.Y-11 is to be declared as
B 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. In view of
the above, even after deciding the Recrimination Petition,
C the appellant and the respondent no.1 have received
equal number of votes. 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. In view of the above, in the
presence of all the learned counsel for the parties the lots
0 are drawn in the open Court and by draw of lots, the
appellant succeeded. [Paras 28, 29, 30, 31, 32 and 37]
[320-A-F; 321-D-H; 322-A-E]
Case Law Reference:
E
1964 SCR 235 Relied on Para 9
1975 (0) Suppl. SCR 202 Relied on Para 9
2003 (6) Suppl. SCR 17 Relied on Para 9
F 2011 (2) SCR 216 Relied on Para 10
1980 SCR 1302 Relied on Para 11
2006 (5) Suppl. SCR 1 Relied on Para 11
(2013) 10 sec 1 Relied on Para 11
G 1965 SCR 38 Relied on Para· 14
1990 SCR 767 Relied on Para 15
1955 SCR 1104 Relied on Para 15
1983 (1) SCR 681 Relied on Para 16
H
ARIKALA NARASA REDDY v. VENKATA RAM 303
REDDY REDDYGARI
.
1964 SCR 54 Relied on Para 18 A
1976 (1) SCR 191 Relied on Para 18
1985 (1) SCR 1099 Relied on Para 18
2009 (14) SCR 836 Relied on Para 19
B
2009 (9) SCR 538 Relied on Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5710-5711 of 2012.
From the Judgment and order dated 20.07.2012 of the C
High Court of Judicature, Andhra Pradesh at Hyderabad in
Election Petition No. 2 of 2009 and Recrimination Petition No.
1 of 2009.
B. Adinarayana Rao, Vinesh Chandel, Gantur Perumal D
Kumar, Guntur Prabhakar for the Appellant.
P.P. Rao, S. Udaya Kumar Sagar, Bina Madhavan,
Praseena E. Joseph, Shivendra Singh, Rahul Pandey (for
Lawyer's Knit & Co.) for the Respondents.
E
The di.ldgment of the Court was delivered by
DR. 8.5. 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 r
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:- G
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 H
304 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
8
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.
c
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
D 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.
E
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
F 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
G Act, 1951 (hereinafter referred to as the 'Act').
H. The appellant filed the written statement refuting the
allegations and averments made in the petition.
H I. The respondent no.2, Returning Officer also filed his
ARIKALA NARASA REDDY v. VENKATA RAM 305
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.)
written statement and it appears that during the pendency of A
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 t~e instructions and guidelines issued by the Election B
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 C
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.
D
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 E
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 F
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 G
of 2012 and this Court disposed of the said SLP on 7.2.2012
observing th~t 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. H
306 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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
C 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
0
approach this Court.
Hence, these appeals.
3. Shri B. Adinarayana Rao, learned senior counsel
E 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
F 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
G 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.
H
ARIKALA NARASA REDDY v. VENKATA RAM '-307
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
More so, the petition filed by the appellant had not been A
decided in the correct perspective. Therefore, the appeals
deserve to be allowed.
4. Per contra, Shri P .P. Rao, learned senior col!nsel
appearing for the respondents has vehemently opposed the
B
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 C
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. D
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 E
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 F
'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 G
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 beer.
provided to safeguard the purity of the election process and H
308 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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,
C 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
0
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.
E 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;
F (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;
G
(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
H beyond the pleadings of the parties. The parties have to take
ARIKALA NARASA REDDY v. VENKATA RAM 309
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.)
proper pleadings and establish by adducing evidence that by A
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 B
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 c
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 D
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 E
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 Kami/ Kidwai & Ors., AIR 1964 SC 1249;
Bhabhi v. Sheo Govind & Ors., AIR 1975 SC 2117; and M.
F
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 G
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: Ka/yan Singh
Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
H
310 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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
C 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: Kuldfp
D 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 sec 1).
12. We find some force in the contention of Shri P.P. Rao,
E 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.
F
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
G packets of postal ballot papers:
(1) xx xx xx
(2) A ballot paper shall be invalid on which-
H (a) the figure '1' is not marked; or
ARIKALA NARASA REDDY v. VENKATA RAM 311
· REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
(b) the figure '1' is set opposite the name of more than one A
randidate 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 B
(d) there is any mark or writing by which the elector can
be identified.
xx xx xx''
c
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:
D
"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 E
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.
F
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 G
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
H
312 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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
c 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. "
D
15. Similarly, in Era Sezhiyan v. T.R. Batu & Ors., AIR
1990 SC 838, this Court after considering Rule 73(2) of the
Rules held as under:
E "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
F 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
G
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 Karnath v. Syed
H Ahmad lshaque & Ors., AIR 1955 SC 233.
ARIKALA NARASA REDDY v. VENKATA RAM 313
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
16. In Km. Shradha Devi v. Krishna Chandra Pant & Ors., A
AIR 1982 SC 1569, this Court considered the provisions of
Rule 73(2}(d) of the Rules and held as under:
·~ ballot paper shall be invalid on which there is any
mark or writing by which the elector can be identified.
8
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 C
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 D
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." E
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
F
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 G
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).
H
314 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
8
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
C 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
D 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
E 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
F 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 &
G 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.
H In the instant case, as explained hereinabove, there were
ARIKALA NARASA REDDY v. VENKATA RAM 315
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
706 total votes, out of which 701 votes were polled. At the time A
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 B
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. c
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 D
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 E
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 F
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 G
photooopies 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 H
316 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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;
B
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
c 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
D the election held on 30.3.2009;
f) To award costs of the petition.
23. The particulars as per the election petition in respect
E 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. ·
F 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
G
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
H framed:
ARIKALA NARASA REDDY v. VENKATA RAM 317
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
1. Whether the petitioner has got a prima facie case A
to an order of scrutiny and recounting of ballot
pc;ipers 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
8
election petition are improperly refused or rejected?
~. Whether one (1) vote improperly received and
counted in favour of the returned candidate as set
out in para 10 of the election petition?
c
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 D
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? E
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 F
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 G
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:
H
318 SUPREME COURT REPORTS [2014] 2 S.C.R.
A "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
B 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
c 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
D
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
E 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
F 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.
G 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
H validated for the petitioner.
ARIKALA NARASA REDDY v. VENKATA RAM 319
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
xxx xxx xxx xxx A
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'
8
(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 C
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 D
of the petitioner.
xxx xxx xxx xxx
As regards Ex.Y-13, it requires to be noticed that the figure E
'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 F
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 G
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 H
320 SUPREME COURT REPORTS [2014] 2 S.C.R.
A 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
B 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.
c 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,
D 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
E 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
F 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
G 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
H
ARIKALA NARASA REDDY v. VENKATA RAM 321
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
marked on the ballot paper and though it is clearly looking A
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
8
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 C
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 D
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 E
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 F
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 G
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 H
322 SUPREME COURT REPORTS [2014] 2 S.C.R.
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.
B
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
C rejected the ~ame.
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.
D
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
E 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.
F
D.G. Appeal disposed of.
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