Civil Appeal Nos. 5710-5711 of 2012. Case: Sanjay Kumar Vs Ashok Kumar and another. High Court of Madras (India)
| Case Number | Civil Appeal Nos. 5710-5711 of 2012 |
| Counsel | For Appellant: Nitin Kumar Thakur, Adv. and For Respondents: Bankey Bihari, Adv. |
| Judges | S. J. Mukhopadhaya , J. and B. S. Chauhan, J |
| Issue | People Act (43 of 1950) - Section 87 |
| Citation | AIR 2014 SCW 1223 |
| Judgement Date | February 04, 2014 |
| Court | High Court of Madras (India) |
Judgment:
Dr. B. S. Chauhan, J.
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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 High Court of Judicature of Andhra Pradesh at Hyderabad in Election Petition No.2 of 2009 and Recrimination Petition No.1 of 2009.
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Facts and circumstances giving rise to these appeals are that:-
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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 Council (MLC).
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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 wrongly been declared invalid.
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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.
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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.
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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.
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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 have been declared invalid.
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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 Act, 1951 (hereinafter referred to as the 'Act').
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The appellant filed the written statement refuting the allegations and averments made in the petition.
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.
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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 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.
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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.
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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.
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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.
Hence, these appeals.
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Shri B. Adinarayana Rao, learned senior counsel 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 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 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. More so, the petition filed by the appellant had not been decided in the correct perspective. Therefore, the appeals deserve to be allowed.
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Per contra, Shri P.P. Rao, learned senior counsel appearing for the respondents has vehemently opposed the 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 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. The appeals lack merit and are liable to be dismissed.
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We have heard the learned counsel for the parties and perused the record.
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Section 87 of the Act provides that the election petition 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 'Evidence Act') shall also be applicable subject to the provisions of the Act.
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It is a settled legal proposition that the...
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