J RAGHAVA RAO Vs. B CH GARATAIAH

JUDGEMENT

(1.) This is a petition to order recount of the votes and to declare the election of the first respondent to the 114-Addanki Assembly Constituency held on11-9-1999, during A.P. General Assembly Elections, as void and consequently to declare the petitioner as a duly elected member of the A.P. Legislative Assembly from 114-Addanki Assembly Constituency.

(2.) The averments, in brief, in the petition are, during 1999 A.P. General Assembly Elections that were held on 11.09.1999 for 114-Addanki Assembly Constituency of Prakasam District, petitioner contested on behalf of Indian National Congress party, first respondent contested on behalf of Telugu Desam Party, second respondent contested on behalf Bahujan Samaj Party, third respondent contested on behalf of Janata Dal (S) Party, fourth respondent contested on behalf of Communist Party of India (Marxist) Party, fifth respondent contested on behalf of Marxist Communist Party of India and sixth to ninth respondents contested as independent candidates, but the main contest was only between the petitioner and the first respondent. During 1989 A.P. General Assembly Elections petitioner was elected from the same constituency with a margin of about seven thousand and odd votes against the 1st respondent. During 1994 A.P. General Assembly Elections, 1st respondent was elected from the same constituency with almost same margin against the petitioner. During 1999 General Assembly elections the trend was very much in favour of the petitioner and he was expecting to win the election with a margin of more than 10,000 votes. Having come to know that petitioner is likely to get elected with a huge margin, first respondent indulged in several mal and corrupt practices and illegalities, and influenced the polling personnel and counting staff by misusing his position as sitting M.L.A. of the party in power. As per the Polling Officers account the total number of ballot papers issued were 1,11, 991 besides postal ballots of 150. But the total number of votes polled as per Form No.20 were 1,11,960 besides 150 postal ballots. Out of those, 2,178 votes we re rejected. Petitioner is said to have secured 53,421 votes and first respondent is said to have secured 53,670 and therefore first respondent was declared elected by a margin of 249 votes. During initial counting in some ballot boxes more number of ballot papers than the ballot papers issued and in several ballot boxes less number of ballot papers than the ballot papers issued were found. In al l, 11 excess ballot papers and 42 less number of ballot papers were found in the ballot boxes at the time of initial counting. Thus, there was a difference of 53 votes between the ballots polled (issued) as per the Polling Officer's account and the ballot papers actually found in the ballot boxes. In Booth No.118 of Timmayapalem, H/o. Ramayapalem theree are 218 Harijan voters but only 190 votes w ere polled in that booth. About five years prior to the elections, Harijans in that area who took up construction of a Church could not complete the work for want of funds after the construction came up to roof level. On 07.09.1999 first respondent went to Timmayapalem village at about 8.00 p.m. and called for a meeting of all Harijan voters and promised to complete the construction of the Church by donating material worth Rupees One Lakh on condition that they should vote for him. The Harijans, after deliberations amongst themselves, accepted the offer. Therefore first respondent asked them to go to Addanki on 09.01.1999 to receive the material and cash and accordingly got issued iron worth Rs.36,000.00, 180 cement bags worth Rs.20,000.00 and electricity material worth Rs.20,000.00 from the shop of one Kakani Hanumantha Rao, a supporter and follower of first respondent, besides centering material and other expenses. That material was taken in a lorry between 4 and 5 p.m. on the same day and the construction activity was taken up again. First respondent kept his brother Chenchu Prasad at Valaparla village from 25.08.1999 till the date of poll to induce Congress voters to vote in favour of the first respondent by bribing and supplying cheap liquor to the voters in and around Valaparla village throughout the period of his stay there. On the advice and consent of first respondent, Chenchu Prasad had on 10-9-1999, called the Harijans and elders of Valaparla and offered to pay Rs.62,500.00 for cement plastering of the church, in that locality, on condition of their voting in favour of the first respondent. The Harijan elders agreed for the offer and the amount was paid to them, and the Harijan voters cast their votes to the first respondent. In normal course 90% of the Muslim voters of Valaparla would have cast their voters in favour of the petitioner. But, Chintala Hanumantha Rao, a strong supporter of the first respondent had taken Chenchu Prasad in his car to the Muslim locality and called the Muslim elders and promised to pay Rs.60,000.00 for maintenance of the Mosque in that locality. The said offer was accepted, but as Hanumantha Rao and Chenchu Prasad were not having ready cash with them, they sent for D.Seetharamaiah, Village Administrative Officer, for scribing an agreement to transfer 50 cents of land in S.No.298 belonging to Hanumantha Rao in favour of the Mosque represented by Sk. Jamula and Sk. Kareem Saheb as security for the amount promised to be paid and put the Muslim elders in possession of the said land. Because of the said corrupt practice 300 votes belonging to Muslims were polled in favour of the first respondent. On 10.09.1999 Chenchu Prasad and Hanumantha Rao went to Harijanawada of Vallapalli village at about 7.00 p.m. and called the Harijan elders and promised to pay Rs.80,000.00 in case the Harijans vote in favour of the first respondent, 700 Harijan voters in that locality, who normally vote in favour of the petitioner, after taking Rs.100.00 per vote voted in favour of the 1st respondent.

(3.) 10th respondent, who asked the petitioner to furnish the names of 16 persons to act as counting agents at 14 counting tables by 04.10.1999, arranged 28 table s for counting. Petitioner who furnished names of 16 counting agents only had o n 05.10.1999 requested the 10th respondent in writing to permit him to have 14 m ore persons as his counting agents to supervise the counting process on all the 28 counting tables, but 10th respondent did not agree. Therefore there were no counting agents for the petitioner at table Nos.8 to 14 in Hall No.1 and 22 to 28 in Hall No.2 at the time of initial counting. Taking advantage of the absence o f the counting agents of the petitioner on 14 counting tables, the counting staf f who were in favour of the 1st respondent stamped about 300 ballots, which were not having any mark thereon in favour of the 1st respondent, and on about 200 b allots papers polled in favour of the petitioner in order to invalidate those votes. In spite of the petitioner bringing that fact to the notice of the 10th respondent both orally and in writing, she did not take any action. By the end of 6th round of counting and when only two more rounds of counting remained, petitioner was in majority by about 533 votes. During the dinner break for counting staff and agents at the end of 6th round, a counting official by name Malladi Subba Rao, who was at the storage point of counted votes in counting hall No.2, though he was posted as counting assistant at table No.18, informed the 1st respondent over telephone about his possible defeat and asked him to be present in the counting hall at once. On that message 1st respondent arrived at the counting hall during dinner recess, and spoke to Mr. Malladi Subbarao secretly, and thereafter Malladi Subba Rao, brought 1000 votes already counted in favour of the 1st respondent and placed them in the drum containing uncounted ballot papers and removed equal number of ballot papers which are yet to be counted from the drum and took them to the package and sealing room. Petitioner after coming to know about the said fact, made a request to the 10th respondent both orally and in writing to order a recount, but 10th respondent who was under the influence of the 1st respondent, stated that recount of 8th round only could be ordered. Since the entire counting process was videographed, the above fact can be verified from the video tapes. The counting agents of the petitioner at table Nos.4, 15 and 18 found that votes cast in favour of the petitioner were being treated as votes polled in favour of the 1st respondent, and that bundles of votes polled in favour of the petitioner were being put as votes polled in favour of the 1st respondent, by topping those bundles with two or more ballots polled in favour of the first respondent to make it appear that those bundles contain ballots polled in favour of the first respondent. Inspite of the objection of the counting agents of petitioner, the Returning Officer failed to take action and thereby the result of the election was materially affected.