# ARIKALA NARASA REDDY v. VENKATA RAM REDDY REDDYGARI & ANR

- **Citation:** [2014] 2 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 2014-02-04
- **Case number:** Civil Appeal Nos. 5710-5711 of 2012
- **Bench:** Dr. B.S. Chauhan, J. Chelameswar, M.Y. Eqbal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arikala-narasa-reddy-v-venkata-ram-reddy-reddygari-anr-29846
- **Pages:** 32

## Headnote

REPRESENTATION OF PEOPLE ACT, 1951:
s.87 - Election petition - Applicability of Code of Civil
Procedure, 1908 and Evidence Act, 1872 - Discussed.
A
B
c
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
discl

## Text

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[2014] 2 S.C.R. 291
ARIKALA NARASA REDDY
v.
VENKATA RAM REDDY REDDYGARI & ANR.
(Civil Appeal Nos. 5710-5711 of 2012)
FEBRUARY 4, 2014
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
REPRESENTATION OF PEOPLE ACT, 1951:
s.87 - Election petition - Applicability of Code of Civil
Procedure, 1908 and Evidence Act, 1872 - Discussed.
A
B
c
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
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.
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
E
F
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]
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:
2003 (6) Suppl. SCR 17 - relied on.
A
B
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 1 O] [309-G-H]
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
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
D
E
F
or favour and is free from any apprehension of its
disclosure against his will. 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. 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. An up 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
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[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
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[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
0
presence of all the learned counsel for the parties the lots
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
1976 (1) SCR 191
Relied on
Para 18
1985 (1) SCR 1099
Relied on
Para 18
2009 (14) SCR 836
Relied on
Para 19
2009 (9) SCR 538
Relied on
Para 19
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5710-5711 of 2012.
.
A
B
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.
The di.ldgment of the Court was delivered by
E
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:-
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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
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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
8 votes which were cast in favour of the respondent no.1 had
wrongly been declared invalid.
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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.
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.
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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.Y13 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').
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H. 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
ARIKALA NARASA REDDY v. VENKATA RAM
305
REDDY REDDYGARI [DR. B.S. CHAUHAN, J.)
written statement and it appears that during the pendency of
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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
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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
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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.
K. The High Court, in pursuance of the order of this Court,
scrutinized and examined the 3 disputed votes in question in
the presence of the parties and their counsel from the bundle
of disputed votes, and after identifying them with the assistance
of the parties and their counsel, had taken the photocopies
thereof. The said photocopies were supplied to the parties and
were marked as Ex.X-1, X-2 and X-3.
L. The High Court scrutinized and examined the 3 votes
on 24.1.2012 and came to the conclusion that the Returning
Officer had wrongly rejected the said 3 votes as invalid and
ordered that all the 3 disputed votes to be counted in favour of
respondent no.1.
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M. Aggrieved, the appellant challenged the said order
dated 24.1.2012 by filing Special Leave Petition (C) No.4728
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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.
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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 .. P16 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
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stayed only for a period of 4 weeks to enable the appellant to
approach this Court.
Hence, these appeals.
3. Shri B. Adinarayana Rao, learned senior counsel
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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
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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.
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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
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decided in the correct perspective. Therefore, the appeals
deserve to be allowed.
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4. Per contra, Shri P .P. Rao, learned senior col!nsel
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
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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.
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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
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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
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of the Act.
7. It is a settled legal proposition that the statutory
requirements relating to election law have to be strictly adhered
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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
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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
0 avoided, as it may tend to a dangerous disorientation which
invades the democratic order by providing scope for reopening
of declared results". However, a genuine apprehension of miscount or illegality and other compulsions of justice may require
the recourse to a drastic step.
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8. Before the court permits the recounting, the following
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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 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.
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
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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
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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
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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.
Chinnasamy v. K.C. Palanisamy & Ors., (2004) 6 SCC 341).
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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 mistrial and the proceedings stood vitiated. (Vide: Ka/yan Singh
Chouhan v. C.P. Joshi, AIR 2011 SC 1127).
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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.
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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
packets of postal ballot papers:
(1)
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xx
xx
(2) A ballot paper shall be invalid on whichH
(a) the figure '1' is not marked; or
ARIKALA NARASA REDDY v. VENKATA RAM
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· REDDY REDDYGARI [DR. B.S. CHAUHAN, J.]
(b) the figure '1' is set opposite the name of more than one
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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
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(d) there is any mark or writing by which the elector can
be identified.
xx
xx
xx''
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:
"10 ... Thus there are three possible interpretations of the
words "by which the elector can be identified" appearing
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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.
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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
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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.