REVURI PRAKASH REDDY Vs. M OMKAR

JUDGEMENT

(1.) ORDER: General elections to the State Legislative Assembly were notified on 1-11-1994 and were held in two phases i.e., on 1-12-1994 and 5-12-1994. Polling to 266 of Narasampet Assembly Constituency was held on 5-12-1994 in which the petitioner contested as the candidate of Communist Party of India (Marxist). The first respondent was sponsored by Telugu Desam Party, who is the returned candidate having successfully polled highest number of votes. The second respondent contested on behalf of the Indian National Congress; while the third respondent contested on behalf of Bharatiya Janata Party. The fourth respondent contested on behalf of Bahujan Samaj Party; while respondent Nos. 5 to 9 contested as independent candidates. Respondent No. 10 is the Returning Officer. Challenging the election of the first respondent, Election Petition No. 14 of 1995 was filed under Sections 81, 100, 101 (A) of the Represention of the People Act, 1951 which is pending.

(2.) This application is filed by the first respondent to reject or dismiss the election petition in view of several grounds alleged therein.

(3.) The election petitioner mainly attacks the election of the first respondent on the following irregularities committed during counting of votes between 9-12-1994. It is stated that in between counting tables and benches placed for counting agents, a barricade was put up with a rope preventing the counting agents from seeing the ballot papers. As the counting agents of the petitioner were allotted place in the second row, they were practically prevented from noticing the voting mark on the ballot papers. It is next alleged that after sorting out of the ballot papers packed into bundles of 25 ballots each, the 10th respondent did not announce the total ballot paper account at the end of the first phase of counting and before actual counting commenced, thereby kept the candidates in darkness. There was no brake for taking tea, lunch or dinner after the counting started on 9-12-1995 till it was over on 10-12-1995 by 11.00 30 a.m. whenever the counting agents of the candidates go out for lunch or dinner or toilet, there were no substitutes in their place, as only one extra counting agent as a reliever was allotted by the 10 th respondent. In view of the improper seating arrangement, it was humanly impossible for the counting agents to verify the voting mark, with the result, the counting staff has indulged in several irregularities helping the first respondent who belongs to the Telugu Desam Party as the election trend was pointing in favour of Telugu Desam Party in the State and the counting assistants who mostly belong to either Revenue or Panchayat Raj Departments are having political affiliation either with Telugu Desam Party or Congress Party. It is further alleged that within 45 minutes after the actual counting has started, there was power failure between 7.45 p.m., and 8.30 p.m. and the 10th respondent did not make any alternative arrangement except two gas lights which were placed at his table. During the said darkness, counting went on at table Nos.2, 5, 8, 11, and 15 which resulted in placing the votes polled in favour of the petitioner in the trays of Respondent Nos. 1 and 2. The objections raised by the counting agents of the petitioner at those tables went unheeded and counting went on for some time. However, after a few minutes the 10th respondent ordered not to go on with the counting till the power supply is restored. But even during this time also counting of ballot papers placed in the respective compartments of the candidates was taken up by counting staff at the said tables who indulged in mixing up the votes cast in favour of the petitioner with the votes polled in favour of respondent Nos. 1 and 2 and were counted in their favour. The counting agent of the petitioner at table No.2 informed the petitioner that the counting assistants present there viz., Kristayya and Samba Murthy were bent upon placing some ballots polled in favour of the petitioner in the compartment of the first respondent. Even in case of doubtful and invalid votes, both the counting assistants used their discretion favouring the first respondent without sending them to the table of the 10th respondent for decision. As per the information furnished by the counting agent of the petitioner at table No.2 not less than 100 votes were placed in the compartment of the first respondent which were either invalid or polled in favour of the petitioner. In the same way, the counting agents of the petitioner, Mr. Singati Sambaiah, A. Raghunadha Rao, G.Siirendrababu and Gadde Malaiah at counting table Nos. 5,8,11 and 15 respectively brought to the notice of the petitioner that the said counting assistants indulged in placing the votes polled in favour of the petitioner either in favour of the first respondent or the second respondent and counted accordingly. In spite of protests raised by the said counting agents, nothing came off. However, at one stage, the counting supervisor at table No. 5 on the complaint of the petitioner replaced two votes of the petitioner from the compartment of the first respondent which were wrongly placed earlier. In view of the information received by the petitioner from his counting agents at table Nos.2 ,5, 8, 11 ,and 15 about 100 votes at each table were wrongly placed either in the compartment of the first respondent or the second respondent which were in fact polled in favour of the election petitioner. In view of the mischief done by the counting staff, the petitioner reliably learnt that he must have lost 600 votes in the said process.