124

THE GAZETTE OF INDIA • MAY 12, 2001 /VAISAKHA 22, 1923

[PART II—SEC. 3(IH)]

PRESENT :

The Hon'ble Mr. Justice Ratnesh Madhav Bapat,

Election Petition No. 4 of 1998

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

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

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 :

(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;

(b) Order recount, scrutiny and inspection of

all the ballot

papers polled

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;

For the Petitioner : Mr. E.. Ella ReddyT Advocate.

For the Respondent No's.

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.

The Cojfft made the following Order :—

E P. No. 4/1998

RMB.J

JUDGMENT:

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.

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.

On presentation of the election

petition', notice

was issued to the respondents. Respondents

filed

counter.

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 : , . , .

"Whether the election petitioner proves

that

the procedure of counting the preferentiaj

• votes as adopted by respondent No. 7 is

illegal?"

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.

As stated earlier, the controversy is limited to the

extent of the procedural irregularities alleged to have

125

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

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.

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.

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—

(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."

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.

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.

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.

As far as the ballot paper which was declared as

invalid on which the first preference votes were given

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*

exhausted paper.

Remaining 42 papers were . un-

exhausted as they contain further preference.

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.

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.

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

MEMORANDUM OF COSTS

RESPONDENT'S (

)COSTS

RS. P.

Stamp for Vakalatnama "I

As fixed by

2500.00

Advocate's fee

Court

Translation & Printing

charges

————

To be paid by the petitioner to the

Respondents

2500.00

S. SUBBALAfCSHMl

JOTNT REGISTRAR

[No. 82|CS-AP|4|98|20Wl

By Order,

SHARAN PAL SINGH, *«y.

Pri^d by the Manager, Get, of IndiB Pre«, M «

and Published by the Controller of Fublicaho*. Ddhl-U0054, 2001