GUNTAPALLI RAMAIAH Vs. MANDALAPU KOTESWARA RAO

JUDGEMENT

(1.) The petitioner in this writ petition, one G. Ramaiah, seeks a writ of certiorarf to quash the order passed by the Election Tribunal-cum-District Munsif, Narasaraopet, in O.P. No. 44 of 19641 setting aside the election of the petitioner to constituency No. 11 in Anantavaram Gram Panchayat and declaring respondent No, i to this petition (M. Koteswara Rao) as having been duly elected. The petitioner and the first respondent filed.,their nominations to that constituency on i8th May, 1964. Elections were held on 4th June, 1964. In the actual count of the votes cast, the writ petitioner got 105 vote's, while the first respondent got 104 votes. So the Election Officer declared that the petitioner had been duly elected.

(2.) Thereafter the first respondent filed an election petition under Rule 49 (1) of the Andhra Pradesh Gram Panchayat (Conduct of Election) Rules, 1964, read with section 217 (2) (i) of the Andhra Pradesh Gram Panchayat Act, 1964, seeking to set aside the election of the writ petitioner on various grounds. The only ground with which we are concerned in this writ petition, was based on the following allegations : One Mannem Kamalamma (examined as P.W. 1), the wife of Yesob (examined as P.W. 2) was a registered voter bearing No. 2564 as per the electoral roll. The writ petitioner and his supporters caused some other young woman to impersonate the said Kamalamma and to cast her vote as Kamalamma. A couple of hours later, when Kamalamma herself went to vote, the Polling Officer informed her that her vote had already been polled. Kamalamma protested and insisted on exercising her franchise. The Polling Officer, in accordance with the procedure prescribed by Rule 26 (1) of the Rules, after satisfying himself about the genuineness of her complaint, gave her a ballot paper in which she marked her vote in favour of the first respondent, viz., M. Koteswara Rao. This, according to the above-mentioned rule, is styled as a "tendered ballot paper."(It may be mentioned that this tendered ballot paper was marked as Exhibit A-2 at the trial of the election petition and the first voting paper, which is alleged to have been marked by Kamalamma, was marked as Exhibit C-1). This tendered ballot paper, according to Rule 26 (4), could not be put into the bailor box but had to be handed over to the Polling Officer, who had to place it in a cover specifically kept for that purpose. The further steps to be taken by the Polling Officer are prescribed by Rule 30 (3), which says inter alia that the Polling Officer of each polling station as soon as practicable after the close of the poll shall in the presence of any candidate or polling agents who may be present, make up into separate packets and seal with his own seal and the seals, of such candidates or agents as may decide to affix their seals, the tendered ballot papers as also the tendered votes list. Then, according to Rule 32, the votes shall be counted by or under the supervision of the Election Officer. Now it is necessary to refer to rule 35, as an argument was sought to be founded upon it. The rule is in these terms :- "35 (1) The Election Officer shall not open the sealed packets containing tendered ballot papers and the marked copy of the electoral roll.............."

(3.) Then Rule 36, which deals with the disposal of ballot papers, may be noticed :- "36. (1) The Election Officer shall, after declaring the results, forward a copy of the return to the executive authority of the Gram Panchayat concerned and shall hand over to the Officer authorised by the election authority the packets' of ballot papers, whether counted, rejected or tendered. These packets shall not be opened and their contents shall not be inspected or produced except under the orders of an electinon or other, competent Court. (2) The Officer so authorised shall retain "the packets and the marked copies of the electoral rollfor a year and shall then, unless otherwise directed by the orders of an election or Other competent Court, cause them to be destroyed." following the procedure prescribed by the aforesaid rules in regard to tendered votes, the votes cast at the polling Were counted and the result was that the writ petitioner got 105 votes as against 104 votes secured by the first respondent. The case of the first respondent was that, someone had impersonated Kamalamma and in the first instance had exercised the vote of the voter bearing No. 2464. But when the real Kamalamma (P.W. 1) came to vote, her vote was accepted as a tendered vote. In the subsequent count by the Election Officer, the vote polled by the impersonator in favour of the writ petitioner was taken into account, while the tendered vote could not be taken into account in favour of the first respondent, with the result that the writ petitioner got 105 votes as against the 104 votes got by the first respondent. The further case of the first respondent was that, if the vote cast by the impersonator were excluded from the total votes secured by the writ petitioner and the tendered vote of Kamalamma were added to the votes polled by the first respondent, the number of votes secured by the writ petitioner would be reduced to 104 while those secured by the first respondent would go up to 105, and the result would be that he (the first respondent) would have to be declared duly elected.