JONNALA VENKATARAMI REDDY Vs. SIRIVENI BASIVI REDDY

JUDGEMENT

(1.) The petitioner Venkatarami Reddy, is seeking a writ of certiorari to quash the order passed by the fourth respondent, Election Tribunal (First Addl. District Munsif, Vijayawada) in O.P.No.53/87 declaring the first respondent herein Basivi Reddy as the successful candidate in the election held on 30-6-87 for the office of President, Devarpally Primary Agriculture Co-operative Society Limited after setting aside the election of the petitioner. The election to the office of President of the Society was held on 30-6-87; the petitioner and the first respondent were the contestants. In the first count, it appears, the petitioner secured 2 votes more than the first respondent and after recount it was declared that the petitioner secured 725 votes and the first respondent 724 votes. 74 votes were found to be invalid. The Election Officer, the third respondent declared the petitioner as the successful candidate. (For purpose of convenience the petitioner and the first respondent herein are referred to as the returned candidate and the defeated candidate respectively). The defeated candidate thereafter filed O.P.53/87 challenging the election of the returned candidate contending that several irregularities and illegalities had crept into the process of election and in the counting of votes. The declaration of the returned candidate as successful by the third respondent was illegal since he (R-1) secured majority votes; had the counting been done properly as per the procedure prescribed by the Act and the Rules, he would have been the successful candidate. He claimed to have secured more than 725 votes whereas the returned candidate secured 722 votes. He alleged that the election officer intentionally rejected valid votes polled in his favour without following the procedure. He alleged that the election officer colluded with" the returned candidate having been influenced by Sri Kakani Rammohan Rao, President of the Mandala Praja Parishad Vuyyur and Movva Mohan Rao, President Mandala Praja Parishad, Totla Vallur.

(2.) The returned candidate in his counter denied the allegations levelled in the election petition contending that inaccordance with the prescribed procedure the counting was done and declaration made. The Election Officer, the third respondent in his counter denied the allegation that he colluded with the first respondent and committed irregularities and malpractices. The defeated candidate filed two interlocutory applications I. A.Nos.348 and 362 of 1988 before the Election Tribunal requesting for production of the boxes containing ballot papers and inspection of the ballot papers and they were allowed by the Election Tribunal. The returned candidate filed W.P.Nos.4484 and 4485 of 1988 questioning the said two orders. A learned single judge of this court allowed the two writ petitions setting aside the orders and directed the Election Tribunal to follow the guidelines laid down by the Supreme Court in Bhabhi vs. Sheo Govind and dispose of the matter afresh on merits after notice to both sides. The learned judge also observed:

(3.) Shri Chandhrasekhar Rao, learned counsel for the petitioner contends that the Election Tribunal ought not have permitted the opening of ballot boxes and inspection of votes when there is no specific plea with regard to the alleged invalidity of votes, including Exs.X-25 to X-32, on the ground of absence of the seal of the society or signature of the Presiding Officer. Unless a specific plea is made with all material particulars and acceptable evidence in that behalf is adduced, ft is not open to the Tribunal to order inspection of ballot papers. He also contends that when once the Election Tribunal had permitted general recount on the application filed by the defeated candidate, it ought to have allowed general scrutiny of all the votes, instead of confining the scrutiny only to a limited number of votescounted in favour of the returned candidate. There should not be two different yard-sticks in the ascertainment of the invalidity with regard to the votes polled at the election, if on a particular ground absence of the seal of the society or signature of the Presiding Officer certain votes which were earlier counted in favour of the returned candidate were declared invalid, the same test should have been applied in the case of the votes polled in favour of the defeated candidate and for seeking such an equitable relief there is no need to resort to a recrimination petition as is done under Sec.97 of the Representation of the People Act. Such a procedure is alien to the provisions of the A.P.Co-operative Societies Act or the rules made thereunder. In any event Exs.X-25 to X-32, eight ballot papers, which were counted in favour of the returned candidate by the Election Officer should not have been declared invalid by the Election Tribunal on the flimsy ground of absence of the seal of the society or signature of the Presiding Officer on them. The will of the majority of the electors reflected in the majority of the votes secured by the returned candidate should not be scuttled on the ground of the aforesaid technicality for which the returned candidate was in no way responsible; a technical lapse on the part of the officers should not be a factor to set at naught the opinion expressed by the majority of the voters. On a true interpretation of the Rules 22(7)(f) and 22(8)(3) the eight votes in question should be counted in favour of the returned candidate and the election of the returned candidate should not be disturbed.