ABHIMANYUDU DAKE Vs. VIVEKANANDA KARUPATI

JUDGEMENT

(1.) - This appeal is filed under Section 116 of the Representation of the People Act and pertains to the assembly election that was held in November, 1989 in Andhra Pradesh. The appellant was one of the four candidates that contested from Gopalapuram Legislative Assembly (No. 71) constituency which was reserved for Scheduled Castes. There were three more candidates. The nominations were filed. The appellant, Smt. Sarojini Devi Dasari and Smt. Jhansi Rani Namburi filed their nominations as independent candidates. Sri Vevekananda Karupati filed his nomination as Telugu Desam candidate. The time and date for withdrawal was 1 p.m. on 2-11-89. The appellant was supposed to contest as an official candidate of the Congress Party and as required under the Rules he has to file the certificate issued by the President of the Congress Party on the same day before 3 p.m. and he failed to do so. Therefore, he figured as an independent candidate. After the polling took place the counting was done and Telugu Desam candidate was declared elected who got the highest number of votes 50,411. The appellant got the next highest vote 42,599. Smt. Dasari Sarojini Devi, independent candidate, polled 737 votes and Smt, Namburi Jhansi Rani, independent candidate polled 2,148 votes. Questioning the declaration of the fourth Telugu Desam candidate the appellant filed an election petition under provisions of the Representation of the People Act. The High Court after hearing the parties framed eighteen issues which are as under :-

(2.) For the purpose of the present appeal Issues Nos. 1 to 5 are relevant. The evidence was led and after consideration of the material on record of the High Court dismissed the election petition. In this appeal the learned counsel for the appellant on the basis of the Issues Nos. 1 and 5 submitted that the appellant should have been treated as Congress (I) party candidate and symbol of "Hand" should have been allotted to him; that letter of withdrawal of third respondent namely Smt. Jhansi Rani Namburi should have been accepted and at any rate failure to do, so has resulted in loss of some of the votes which ought to have been cast in favour of the appellant and lastly that the symbol allotted to the appellant namely the "Aeroplane" and the symbol allotted to the third respondent "Boat" created confusion in the minds of the electorate. Added to this the allotment of symbol "Aeroplane" for the candidate in the parliamentary election which was also held at the same time has further created such confusions.

(3.) It may be mentioned here that admittedly the appellant did not file the certificate, to the effect that the appellant was the official Congress candidate given by the Congress Party President within the time. The reason put forward was that due to the circumstances beyond his control he could not file the same in time. This could heardly be a ground to condone the lapse particularly in election matters. In view of the fact that such certificate was not filed in time as per the rules the question of allotting him the symbol "Hand" did not arise. Regarding the similarity between the two symbols "Aeroplane" and "Boat" also has no significance because the symbols are distinct and at any rate the number of votes polled by the appellant and the third respondent would show that the electorate did not commit any such mistake. Coming to the withdrawal of nomination by respondent No. 3 the fact remains that original withdrawal letter was not filed nor summoned. Therefore, it cannot be said that there was withdrawal in the eye of the law. Even assuming there is some substance in this submission but having regard to the votes polled by the third respondent 2,148 even if these votes are to be added to the appellant even then the difference between him and the elected candidate is considerably big and so will not affect. the election. The submission that the allotment of "Aeroplane" symbol to the parliamentary candidate also fails on the same ground. We see no substance in this election petition and it is dismissed accordingly. No costs.