REGISTERED No. D.L. 33001/99
PUBLISHED BY AUTHORITY
No. 14] NEW DELHI, SATURDAY, MAY 12, 2001/VAISAKHA 22, 1923 Separate Paging is given to this Part in order that it may be filed
as a separate compilation
PART II—Section 3—Sub-sectuib (iii)
Orders and Notifications issued by Central Authorities (other than the Administrations of Union Territories).
ELECTION COMMISSION OF INDIA.
New Delhi, the 3rd May, 2001
O.N. 64.—In pursuance of Section 106 of the
Representation of the People Act, 1951 (43 of 1951), the Election Commission of India hereby publishes the order of the High Court of Andhra Pradesh at Hyderabad dated 28th March, 2001 in Election Petition No. 4 of 1998 filed by Shri T. Venkataram Reddy against Shri Kala Venkata Rao & others.
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
(Special Original Jurisdiction)
Wednesday the Twenty Eighth Day of March,
Two Thousand and one
(123)
1282 GI/2001124 THE GAZETTE OF INDIA • MAY 12, 2001 /VAISAKHA 22, 1923 [PART II—SEC. 3(IH)] PRESENT :
E P. No. 4/1998
RMB.J
The Hon'ble Mr. Justice Ratnesh Madhav Bapat,
Election Petition No. 4 of 1998
JUDGMENT:
In the matter of Election to Rajya Sakha from
Andhra Pradesh Legislative Assembly.
BETWEEN
1. Sri T. Venkataram Reddy . .. Petitioner
AND
1. Kimidi Kala Venkata Rao
2. Nagabhushan Rao Dasari
3. P. Prabhakara Reddy
This election petition was filed by one T.. Venkataram Reddy against the respondents* It was averred by the election petitioner that in the bienniaj elections to the Council of States in 1998 from the Andhra Pradesh Legislative Assembly for filling six seats on 27-3-1998, the petitioner herein and the respondents No. 1 to 6 contested for the same. The petitioner herein contested as a candidate from the Indian National Congress. Respondents 1 and 3 to 6 contested on behalf ol the Telugu Desam Party. Res- pondent No. 2 herein contested on behalf ' of the Communist Party of Tndia. Mr. C. Venkatesban, the 7th respondent herein was the Returning Officer.
4. Yadlapati Venkat Rao 5. C. R&machandaiari
6- Rumandla Ramachandraiah 7. C. Venkatcshan, Special Secretary/
Returning Officer,
' *' "
A. P. Legislative Assembly, Assembly Buildings, Public Gardens, Hyderabad-500486 . .. Respondents
It is further stated that the petitioner herein got 41 first preferential votes. Th; 7th respondent, who is an activist of the Telugu Desam Party after his retirement, as a Secretary to the A.P. Ixgislative Assembly, is obliged to the Telugu Desam Party, especially to the present Chief Minister who re- appointed Dim and extended his term at least three times, apart from the 7th respondent having been eairlier Secretary of *he Telueu Desam Party. Hence, for all purposes, it must be deemed that the 7th res- pondent is a Telueu Desam Party functionary and conseauPTitlv bent UDOTI helping the cundid&'e tnrt up bv the Telueu Dcsam Pnr'y. Apart from the altera- tions mfide against the 7th resnondent, irpny other allegations were made by the petitioner herein.
Election Petition filed u/s. 80 80A, 84. 100(d) (iii) and (iv) and 101 (a) of the representation of peoples Act, 1951 praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to :
On presentation of the election petition', notice was issued to the respondents. Respondents filed counter.
(a) declare the election of the Respondent No. 1 to the Council of Biennial Elec- tions of Council of States held on 27-3-1998 a? illegal, null and void;
After apperaing, the 1st respondent filed applica- tion No. 1346|1998 under Order 6'Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure praying to strike out the pleadings in Paras 5 to 18 from the election petition. Then counter was filed to this application. On considering the rival contentions raised by the parties, this Court by an elaborate order dafed 19-2-1999 struck out the pleadings for various reasons as narrated in the said order, lhe only point Jeft out in. the election petition was regarding the pro- cedural irregularities alleged to have been committed "by the 7th respondent herein. Therefore, the point for determination was framed as under : , . , .
(b) Order recount, scrutiny and inspection of all the ballot papers polled in favour of Respondent Nos. 1 to 6 and also ballot paper declared by Respondent No. 7 as invalid and the ballot papers declared by Respondent No. 7 as exhausted in the above said Biennial Elections to Council of States;
(c) Award costs of the petition.
"Whether the election petitioner proves that the procedure of counting the preferentiaj • votes as adopted by respondent No. 7 is
illegal?"
For the Petitioner : Mr. E.. Ella ReddyT Advocate. For the Respondent No's.
On this issue, parties were allowed to lead evi- dence. The petitioner examined himself and also examined one G. Vcnkat* Reddy as F.W.2 who was tiis counting agent. On behalf of respondent No. 1, one J. Venkateswarlu, who was the counting agent for the 1st respondent, gave oral evidence as R.W.I. Oue Ram Reddy, S|o. Narayana Reddy gave evi-
1 deuce as ai witness lor the 7th respondent.
1. Mr. M. P. Chandramouli, Advocate. 2. Mr. Krowidi Narasimham, Advocate. 3 & 6. Mr.. K. N. Jwala, Advocate. 4. Mr. Bathula Venkateswara Rao, Advocate. 5. Mt. M. Vsnkata Ramana Reddy, Advocate. 7. The Advocate General.
As stated earlier, the controversy is limited to the extent of the procedural irregularities alleged to have The Cojfft made the following Order :—
been committed by the 7th respodnent and, therefore, the parties to the election petition led the evidence Only to Uiat extent.
'I he evidence of 1'. Venkataram Reddy discloses thlai he contested the election for the Council of Slates which was held on 27-3-1998 on Indian -Njuional congress, whereas rcsponucnt INOS. 1, J, :> and 6 contested the election on behalf of the Tclugu Desam Party. 2nd iesponue.nt contested trie dec^uii with the ticket of C.P.K., and the 7th respondent was the Returning Officer. The total strength of the Ajssembly was 294. The effective strength was 290. All the Members of Lhc Assembly were to exercise their franchise. 1st respondent secured 40 votes, 2nd respodnent secured 43 votes. 3rd respodnent secured 41 votes. 4th respondent secured 42 votes. 5th respondent secured 41 vo.t^ 61I1 respondent secured 40 votes. The petitioner secured 41 vote:-. One vole • •was declared invalid on the ground than it was initially ,njarlced in favour of the 5 th respondent and secuied ojut against in favour of the oetitioner.
I It is further stated by the petitioner that 171 surplus joints were found in the parcel of the 2nd respondent. SJurpJus points were divided by 42 on the ground that one vote was exhausted. It is further deposed that as r per the" contention of the petitioner, surplus points of 171 ought to have been divided by 43. If surplus points had been divided by 43, the value of each ballot paper comes to 3.9. The petitioner further deposes that, that i^ the rule provision. He states in the evidence that he docs not remember how many ballot papers were transferred in favour of the 1st respondent. He also states that if the surplus points of 171 had been divid- ed by 43, he would have been declared elected. The " petitioner produced Annexure-B along with the elec- tion petition to 'how the effect of dividing 171 surplus Votes by 43, It it. also alleged to have been supplied to Ihe 7th respondent. Transfer sheet is marked as Ex. A2. J3x. A2 consists of five sheets. According to the peti- tioner, the R-Cturning Officer committed ihe following • irregularities. (1) The Returning Officer invalidated •one vote marked in favour of the petitioner, in which lirsf preference was given to him, (2) The Returning Officer divided.the surplus
l
Points by number of unexhausted votes instead of divid- ing first preference votes secured by each candidate, (3) The transfer of voles was not done according to ^he preference marked, (4) Even the exhausted votes Were counted in favour of the continuing candidates, j.e. the respondent No. 1," (5) Tn the third round of Counting, the ballot papers were not shown to the [petitioner, and (6) The Returning Officer did not adhere to the counting Rules but adopted of his own. The Rules of his own means the Rules made by the Speaker. The petitioner produced the copies of the •Rules framed by the Hon'ble Speaker for conduct of elections. They arc filed as Annexure-D and now (marked as Ex. A3. , According to the version of the petitioner, the above irregularities materially affected ^ the .result of the election. The percentage of difference • Jbetwecn the petitioner and the 1st respondent is 0.003. Therefore, it was prayed by the petitioner that the election ptttion be allowed, the election of the 1st res- ''pendent be set aside and the petitioner be declared clecteii. This witness was cross-examined, at length.
The petitioner led the evidence of G. Venkata Reddy as P.W. 2. He was the counting agent of the petitioner.
125 He deposed practically on the same lines as it wan deposed, by the petitioner herein. Therefore, it is not necessary for me to narrate the entire evidence given by P.W. 2.
The 1st respondent led the evidence of his counting agent J. Vemcateswarlu. 1st respondent is the reailv contesting respondent in this case. The evidence of R.W. 1 shows that after the polling was aver, tbe Returning Officer counted the number of votes pulled. There were in all 290 votes poked. Out of them one vote was found invalid. He states that it was shown to all the counting agents and the candidates who were present in the hall. For each candidate, there were two counting agents. The said vote was invalidated because the first preference vote was cast in favour of two candidates. Remaining 289 votes were segregrated as per tfw first preference vote given to each candidate. While, segrtgratuig aqd separating, ballot papers were shown to ail the candidates and the agents. The can- didates who secured the requisite number of first pre- ference votes were declared as elected. In terms of points, for one io get elected, one must secure 4J29 points.,In the iu.it round the 2nd respondent got ^300 points,and, therefore, he was declared elected, it means that the second respondent got 171 surplus points. These surplus points were to be distributed amony 'other candidates. The 2nd respondent got 43 rkht pre- ference voles in all. On scrutiny of 43 ballot papers, it was noticed that one voter did not cast vote of second preference or any other preference. Therefore, that vois was treated as exhausted vote. Remaining 42 votes were treated as unexhausted votes. In order to ascertain the value of each unexhausted vote, the iiurpius of 171 was divided by 42. The value of each vole was worked as four. Fractions were omitted.
The witness further deposes that in the second round, counting was done to ascertain how many votes wore cast in favour of each of the remaining candid dales. From out of 42 unexhausted votej, which were multiplied by four, the value was arrived fpr each vote. In that process, the candidates who secured more than 4129 points were declared elected. In the second round, respondent Nos. 3 and 5 got more,than 4129 points and, therefore, they were elected.
It is further stated by the witness that hi the first round itself, a candidate named Y. Venkata Rao hud secured 42 preferential votes and hs secured 4200 points. After deducting the required number of pointt. that is 4129, surplus of 71 points were distributed among the candidates adopting the procedure as stated for the second preference votes. The witness deposes thiit even in the third round, the same procedure was adopted and, therefore, jt is said by the witness that all the Rules for counting were strictly observed.
On behalf of the 7th respondent. Ram Reddy gave evidence as R.W. 2. He was assisting the Returning Officer Mr. S. D. Kamalakar, who retired from service; He has deposed on the same lines as deposed by Mr. J. Venkateswarlu. Therefore, it is not ncccsrary to give the details given by him.
With this evidence on record, learned counsel Mr. Sudershan Reddy appearing on behalf of the petitioner herein, submit ted that one first preferential vote which was counted in favour of the petitioner was declared*:6 THE GAZETTE OF INDIA : MAY 12, 2001/VAISAKHA 22, 1923 [PART II—SEC. 3(iii)f invalid illegally. Therefore, it was contended that recounting must be done.
to two persons, no second preference or any other preference was given in the said ballot paper, fltieia- tore, that wa:> an exhausted paper as defined under Rule 71(3) of the Rules.
....
The 2nd resposdent got 43 votes, out of whiiSi in one vote there was no further preference indicated to uny other candidate. Hence it was treated* a* exhausted paper. Remaining 42 papers were . un- exhausted as they contain further preference.
VVhilc replying the aforesaid argument, learned •euior counsel Mr. E. Manohar, appearing on behalf of tSie 1st respondent, submitted at the Bar that the evidence on record discloses that the invalid votes containing first preference was given to the petitioner and C, Ramachandraiah, the 5th respondent herein, and thereafter the name of the 5th respondent.
Therefore ii was z-jfrtly rejected as invalid vote. .My attention was drawn to Rule 73(2)(b) of the Couduct of Elections Rules, 1961, which reads as under ;
"73(2) A ballot paper shall be invalid on which—
It was submitted by the learned counsel iot the petitioner that the surplus 171 should have been divided by 43. If the surplus had been divided by 43 then fhe value would hu\e worked out as three points. This allegation is not supported by any Rule or authority.
(a) XXXXXXXXXXXXXXXJJ (b) the figure 1 is set opposite the name more than one candidate or is so placed as to render it doubtful to which candidate it is
intended to apply."
The next contention which was raised by the petk tioncr herein is that the 7th respondent should have stopped counting after the third round and declared the petitioner elected. But there is no Rule which stipulates declaration for the last scat until the sur- plus are transferred. Theiefore, this contention also cannot be accepted. There is no Rule to the ef[cct that when there are surplus, the same has to bo transferred to the continuing candidate. Vide Rule 71(1) pf the Rules, continuing candidate mean* any candidate not elected and not excluded from the poll at any given time.
When the petitioner and the 1st respondent were continuing candidates, the surpluses of the 5th and the 6th respondents have to be transferred to both of them. The exclusion of the candidate lowest on the poll is dealt with by Rule 80 of the Rules. Rule 80 states that if after alj surpluses have been trans- ferred as provided under Rule 79, the number of candidates elected is less than the required number, then the lowest on the poll shall be excluded. Rule 80 is n complete answer to the contention raised by the petitioner herein.
Admittedly one vote which was declared as Invalid was cast in favour of the jwtitionci- and the 5th res- pondent. Therefore, it was rightly rejected. More- over, it is seen from the evidence on record that the petitioner is a qualified raari and his two agents were present while the counting process was going on. According to the evidence of the respondents, the invalid votes were shown to all the candidates and their respective agonis who were present in the hall meant for courting. The petitioner herein never raised any such objection before the 7th respondent and it is for the furt time that the objection was rais- ed in the election petition. Therefore, his Courtis not inclined to entertain any such objection for re- counting of votes . Moreover, when a doubt arises regarding the validity of vote, it has to be rejected. There is no rule to divide the value of the same to both candidates by 50 p-'-r cent, 50 per cent, as argued by the learned counsel Mr. Sudershan Reddy appealing on behalf of the petitioner herein.
Considering the above factual and legal position, this Court is of the considered view that there waa no procedural illegality committed by the 7th res- pondent so as to favour the Telugu Desam Party Candidate. Henoe, the election petition is dismlsa- ed. Costs of the election petition fixed at Rs. 2,500 (Rupees Two thousand Five Hundred Only). IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH : HYDERABAD
ELECTION PETITION NO. 4 of 1998 P.W.I, the petitioner, was present during counting. He deposed that first preference was marked in favour of ths petitioner and the 5th respondent. He did not depose before this Court that the vote cast in favour of the 5th respondent was subsequently scored off. The evidence and the pleading on this point are totally inconsistent. Therefore, this Court has no hesitation in dismissing the contention raised by the learned counsel for the petitioner.
MEMORANDUM OF COSTS
RESPONDENT'S ( )COSTS RS. P. Stamp for Vakalatnama "I As fixed by 2500.00 Advocate's fee 'i Court Translation & Printing f charges J ———— To be paid by the petitioner to the
Respondents 2500.00
S. SUBBALAfCSHMl JOTNT REGISTRAR The next contention raised by the learned counsel foe the petitioner is that evaluation of surplus of the 2nd respordcni who secured 43 votes at four points is not correct and it should have been three. The said contention has no merits, Rule 79 of the said Rules deals with transfer of surplus. Under Rule 79(4) (d) of the Rules, (ho value of each paper shall be arrived by dividing the surplus bv the total number of unexhausted papers. The definition of unexhausted paper is given in Rule 71(8) of the Rules' as a ballot paper on which a further preference is recorded for a continuing candidate. Rule J (3) of the Rules defines exhausted paper as a boliot p^per on which no further preference is recorded for a continuing candidate.
[No. 82|CS-AP|4|98|20Wl By Order, SHARAN PAL SINGH, * " y. As far as the ballot paper which was declared as invalid on which the first preference votes were given
P r i ^d by the Manager, Get, of IndiB Pre", M" ^ " ^m
and Published by the Controller of Fublicaho*. Ddhl-U0054, 2001