PAYYAVULA KESHAV Vs. Y VISWESWARA REDDY

JUDGEMENT

(1.) The application is for striking off paragraphs 4 and 5 of the election petition as not disclosing the material facts and cause of action and consequently reject the election petition as not disclosing any cause of action, under Section 87 of the Representation of the People Act, 1951 read with Order VI Rule 16 and Order VII Rule 11(a) of the Code of Civil Procedure.

(2.) The election Petitioner filed the election petition No. 5 of 2009 to call for records and material for inspection and scrutiny of the votes polled at 268-Uravakonda Assembly Constituency of Anantapur District, to recount the votes polled including postal ballot votes, to set aside the election of the returned candidate declaring it to be void and to declare the election Petitioner as duly elected. The election Petitioner contended that elections to the Andhra Pradesh Legislative Assembly and the Lok Sabha were simultaneously conducted in Andhra Pradesh in two phases and No. 268-Uravakonda Assembly Constituency went to poll on 23-04-2009. The election Petitioner contested the election as a candidate of Indian National Congress with the symbol 'hand' and the 1 st Respondent contested as a candidate of Telugu Desam with the symbol 'cycle'. The other contesting candidates with their respective symbols are Respondents 4 to 13. During the counting on 16-05-2009, many irregularities were alleged to have been committed firstly by taking up the counting of votes polled on electronic voting machines without first completing the counting of postal ballots as required under Rule 54-A of the Conduct of Elections Rules, 1961 in spite of objections. The votes secured by the candidates by way of postal ballots were declared by the Returning Officer only during the 14 th round of counting of votes polled in electronic voting machines. The counting agents were, hence, confused and the Returning Officer did not verify the authenticity of the identification made by the Gazetted Officer on the postal ballots polled in favour of the returned candidate and about 200 invalid postal ballots were counted in favour of the returned candidate in spite of objections, as most of the postal ballots were attested on the same day and the Gazetted rank of Grade-II Head Master, who attested the postal ballots, was questioned, but not decided by the Returning Officer. About 50 postal ballots cast in favour of the election Petitioner were claimed to have been illegally deleted and added to the returned candidate and about 10 valid postal ballots in favour of the election Petitioner were claimed to have been wrongly invalidated and rejected. About 5 postal ballots with writings on them were alleged to have been wrongly added to the returned candidate instead of rejecting them and if the counting had been fair, the election Petitioner would have been elected having secured majority of votes in rounds 1 to 17 out of total 18 rounds. This had materially affected the result of the election and a recount will bring the irregularities to light. The election Petitioner claimed to have submitted a written request at 3.30 P.M. on 16-05-2009 before declaration of the result for a recount in view of the narrow margin. But the Returning Officer declared the result as if the returned candidate was elected by a margin of 229 votes. The signatures of the election agent were not obtained as required and no orders were passed on the application for recount. The election Petitioner claimed to have represented to the higher election authorities for a recount. The election Petitioner complained that only on account of the mischief committed by the Returning Officer with regard to counting of postal ballot votes, the result was materially affected and a CD of video recording of counting process was also not furnished in spite of a written request in the letter dated 23-05-2009. Hence, the election petition.

(3.) Only the returned candidate/Respondent No. 1 and the Returning Officer entered appearance in the election petition and the returned candidate filed this application contending that Rule 54-A of the Conduct of Elections Rules, 1961 contains no further requirement that until completion of counting of postal ballots, the Returning Officer is debarred from counting of the votes from the electronic voting machines. The rule either expressly or impliedly does not contain any such prohibition and hence, paragraph 4 disclosing neither any cause of action nor any triable issue, has to be struck off. No material fact was given in support of the alleged irregularity in counting about 200 invalid postal ballots and the name or other material particulars of the Gazetted Officer were not stated. The statements about the postal ballots were too vague and general without any particulars and the figures were only specified to match the difference of votes between the election Petitioner and the returned candidate. Hence, paragraph 5 containing these allegations also does not constitute any cause of action and is liable to be struck off. Irregularities in counting alleged in paragraphs 4 and 5 alone form the whole basis for the election petition and if those paragraphs are struck off, the remaining contents of the election petition do not constitute any cause of action for maintaining an election petition and in the absence of any triable issue, the election petition has to be rejected. The representations referred to by the election Petitioner never referred to the allegations made in the election petition and hence, the application.