U K SHAMANNA Vs. H G GOVINDE GOWDA

JUDGEMENT

(1.) The petitioner by filing this election petition under Section 81 of the Representation of the People Act, 1951, challenges the election of respondent No.l to the Karnataka Assembly held in 1985. He has also prayed for recounting. He has sought for setting aside of the election of respondent No. 1 and also for a declaration that he is duly elected to the Assembly on the following grounds: i) The petitioner had contested the Assembly election from 152 Shringeri Legislative Assembly Constituency as a Congress-I candidate. Respondent No.1 contested the said Assembly election from the said Constituency as a Janatha candidate. The respondents 2 to 4 had contested the said election as independent candidate. Respondent No. 5 had contested it as a B J.P. candidate. ii) The election took place on 5-3-85 and the counting of the votes took place on 6-3-85 from 8 a.m. to 1-30 p.m. iii) The counting was held in two rooms one of which measured 23 1/2 feet East-West and 38 1/2 feet North- South. The other room mea- sured 18 1/2 feet East-West and 18 1/2 feet North-South. There were platforms in both the rooms. 12 tables had been arranged in the room measuring 23 1/2 feet x 38 1/2 feet (hereinafter called 'the room No.l'). 8 tables had been arranged in the other room measuring 18 1/2 feet x 18 1/2 feet (hereinafter called 'the room No.2'). There was only one electric bulb burning in each of the rooms. All the windows and one of the doors in room No. 1 had been completely closed and the windows and one of the doors in room No.2 were completely closed and the other door was half-shut. The light in both the rooms was highly insufficient. The place was highly congested. The counting was being done in great haste. It was not possible for the counting agents of the petitioner to observe properly the ballot papers. Shivappa, P.W.2 who was the counting agent of petitioner, P.W.1 in room No. 1 and Balraj P.W.3 who was the counting agent of petitioner P.W.1 in room No.2, complained to the Returning Officer, sixth respondent about the insufficient of the space and light and about the difficulty envisaged by them regarding the observation of the ballot papers. iv) All the three counting officials at each table were simultaneously sorting out the ballot papers and were counting the ballot papers in great haste. Therefore, it was not possible for the counting agents of the petitioner to observe the ballot papers. The counting agents of the petitioner orally protested with the counting staff regarding the insufficiency of the space and light and the haste in which the ballot papers were being sorted out and counted. But the said protest was of no use. The said Shivappa, P.W.2 and Balraj, P.W.3 also complained about these deficiencies to the Returning Officer within about a hour after the commencement of the counting. The sixth respondent told them that the procedure adopted by the counting staff was proper and correct and that they cannot make out a grievance in that behalf. He, further, informed that a large number of votes had to be counted and the matter had to be done properly and in time. The Returning Officer further assured the counting agent that if they were not satisfied with the counting, it was open to the election agent or the candidate to seek recounting and hence they need not exhibit any anxiety at that stage at all. At the end of the counting of the ballot papers in each ballot box it was not being announced as to how many votes had been secured by each of the candidates. Even at the end of each round of it was not being to how many votes had been secured by each of the candidates. In fact, the entire counting was done in an atmosphere of confusion, lack of clarity and precision. v) Chinnappa Hegde who has married the sister of Diwakar, who is the son-in-law of respondent No.1, was interfering with the process of counting and in fact was telling the counting staff to look-after the interest of respondent No.l. Chinnappa Hegde is the Secretary of the Officers Club at Koppa. More than 50% of the counting staff are members of the said Officers Club and therefore, they are all closely interested in Chinnappa Hegde. The said Chinnappa Hegde was having a pre-discussion with the counting staff. The said Shivappa and Balaraj had protected to the counting staff about the interference by Chinnappa Hegde. Chinnappa Hegde was being consulted by the counting staff while deciding about the validity or otherwise of the ballot papers. vi) The petitioner on the basis of the information furnished to him by the counting agents estimates that a minimum of 346 votes cast in favour of petitioner were erroneously counted in favour of respondent No. 1. The petitioner also on the basis of the information furnished to him by his counting agents has reliably learnt that a minimum of 165 votes which were property marked and voted in favour of the petitioner, were wrongly rejected as invalid votes. Further more than 182 ballot papers which were not signed by the polling officer, though they were marked in favour of the petitioner, were rejected on the ground that they were not valid votes as they did not contain the signature of the polling officer. He was also informed by his counting agents that 130 votes marked in favour of respondent No. 1 which were invalid, were counted as valid votes in favour of respondent No. 1. vii) In Hannagi village the petitioner had secured only 6 votes out of 107, while respondent No. 1 secured 97 votes and while the second and fifth respondents are said to have secured 1 and 2 votes respectively and one vote was invalid. The petitioner expected atleast 30% of votes polled in the said Hannagi village. However, he was much surprised when it was told that he had secured only six votes out of 107 votes. Similarly in Alahalli village out of 183 votes the petitioner is stated to have secured only nine votes while respondent No. 1 secured 116 votes and respondents 2 and 3 had secured 2 and 1 votes respectively and 2 votes were declared invalid. The petitioner had expected 40% of the votes in Alahalli village also and, therefore, the said information also has come as a great surprise to him. Respondent No. 1 as per the said calculation is shown to have secured more than 90% of the votes in Alahalli village and Hannagi village. As per the instructions issued by the election commission whenever there is polling of 90% and above, there should be a recount in regard to the booths and it was not done in this case. 19 tendered votes also had not been taken into account. There is a difference of 86 ballot papers. The Returning Officer did not even counter-check 5% of the total number of the bundles of ballot papers. One application was given for recounting by the election agent of the petitioner and another application was given by the election agent of the petitioner regarding the undue interference by Chinnappa Hegde. The said applications were rejected for no valid grounds at all. The rejection of the petitioner's request for recount has caused unrepairable loss and prejudice. According to the petitioner his request for recount was rejected on account of the Returning Officer's close association and friendship with the said Chinnappa Hegde, who is a close relative of respondent No. 1. The margin of difference between the votes secured by the petitioner and respondent No. 1 is hardly 83. It being rather very small, the recount was called for. viii) The petitioner was not well and he was suffering from fever and head-ache and, therefore, he was not in a position to attend the counting of votes. Before the declaration of the result of the election and after the closure of the counting the petitioner went to the place of counting and was present at the time of declaration of the result. Hence, under the said circumstances, he prayed for re-inspection, re-scrutiny and recount and re- totalling of the votes polled in favour of respondents 1 to 5 and also in respect of the invalid votes and tendered votes. He also sought for a declaration that the election of the respondent No. 1 to the Assembly was null and void and also sought for a declaration that he was duly elected to the Assembly.

(2.) Respondent No. 1 has denied all the allegations of the petitioner made in the election petition and resisted petition.

(3.) Respondents 2 to 5 have remained absent and ex-parte.