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TMI Blog2014 (2) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of ballots just to enable the election Petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts. It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal [ 2009 (9) TMI 1062 - SUPREME COURT] and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil [ 2009 (5) TMI 934 - SUPREME COURT] . Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case. The inescapable conclusion that can be reached is that even after deciding the Recrimination Petition, the Appellant and the Respondent No. 1 have received equal number of votes - in such a fact-situation the decision as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant ought to have been declared invalid. G. The High Court issued notice to the Appellant regarding the lodgment of the election petition and the Appellant not only entered appearance but also filed a Recrimination Petition No. 1 of 2009 under Section 97 of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act'). H. The Appellant filed the written statement refuting the allegations and averments made in the petition. I. The Respondent No. 2, Returning Officer also filed his written statement and it appears that during the pendency of the election petition vide order dated 23.9.2011, the High Court directed the Registrar (Judicial), High Court of Andhra Pradesh to scrutinize and re-count all the ballot papers in the presence of the parties and their counsel as per the rules and Regulations, and the instructions and guidelines issued by the Election Commission of India and submit a report within a stipulated period. J. Aggrieved, the Appellant challenged the said order by filing Special Leave Petition (Civil) No. 29095 of 2011 and this Court vide an order dated 20.10.2011 set aside the impugned order of the High Court and direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has not been decided by the High Court giving strict adherence to the provisions of the Act and the Rules framed for this purpose. It was not permissible for the High Court to go beyond the pleadings of the election petition. The entire controversy could only be in respect of 3 votes as pleaded in the election petition by the Respondent No. 1 which had been declared invalid and another vote which ought to have been declared invalid but had been counted in favour of the Appellant as valid. It was not permissible for the High Court to count all the votes and pick up large number of votes from the bundle of invalid votes, totaling 30, or from the valid votes duly counted in favour of the Appellant or the Respondent No. 1. Counting has to take place strictly in accordance with the rules and there was no occasion for the court to find out the intention of the voters or draw an inference in whose favour the elector wanted to vote. More so, the petition filed by the Appellant had not been decided in the correct perspective. Therefore, the appeals deserve to be allowed. 4. Per contra, Shri P.P. Rao, learned senior counsel appearing for the Respondents has vehemently opposed the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow. Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results . However, a genuine apprehension of miscount or illegality and other compulsions of justice may require the recourse to a drastic step. 8. Before the court permits the recounting, the following conditions must be satisfied: (i) The court must be satisfied that a prima facie case is established; (ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes; (iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes; (iv) An opportunity should be given to file objection; and (v) Secrecy of the ballot should be guarded. 9. This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour and is free from any apprehension of its disclosure against his will. In the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. AIR 1980 SC 1362, a Constitution Bench of this Court considered the aspect of secrecy of vote and held that such policy is for the benefit of the voters to enable them to cast their vote freely. However, where a benefit, even though based on public policy, is granted to a person, it is open for that person and no one else to wave of such benefit. The very concept of privilege inheres a right to wave it. (See also: Kuldip Nayar v. Union of India and Ors. AIR 2006 SC 3127; and People's Union for Civil Liberties and Anr. v. Union of India and Anr. (2013) 10 SCC 1). 12. We find some force in the contention of Shri P.P. Rao, learned senior counsel appearing for the Respondent No. 1 that though secrecy of ballot is an inherent principle in conducting elections, however, the said principle has diminished to some extent in view of the rule of whip as prescribed in Tenth Schedule to the Constitution of India. 13. The issue of marking and writing on ballot papers is governed by the Conduct of Elections Rules, 1961 (hereinafter refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead something like any mark or writing which identifies the elector . But the words used are any mark or writing by which the elector can be identified , and these words in our opinion mean something more than a mere possibility of identification but do not require actual proof of identification before the vote can be invalidated, though by such proof, when offered, the disability would be attracted. 15. Similarly, in Era Sezhiyan v. T.R. Balu and Ors. AIR 1990 SC 838, this Court after considering Rule 73(2) of the Rules held as under: 14...Sub-rule (2) of Rule 73 of the Election Rules set out earlier that a ballot paper shall be invalid on which there is any figure marked otherwise than with the article supplied for the purpose. Rule 73 is directly applicable to the case of the election in question and as aforesaid it prescribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose, the ballot paper shall be invalid. Assuming that the voter in this case had expressed his intention clearly by marking the figure I in green ink, he did so in violation of the express provisions of the Rules which have a statutory force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried simultaneously. In a composite election petition wherein the Petitioner claims not only that the election of the returned candidate is void but also that the Petitioner or some other person be declared to have been duly elected, Section 97 of the Act comes into play and allows the returned candidate to recriminate and raise counter-pleas in support of his case, but the pleas of the returned candidate under Section 97 have to be tried after a declaration has been made under Section 100 of the Act. The first part of the enquiry is in regard to the validity of the election of the returned candidate which is to be tried within the narrow limits prescribed by Section 100(1)(d)(iii) while the latter part of the enquiry governed by Section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas taken by him in his recrimination petition. If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the election Petitioner. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. We have been taken through the judgment of the High Court as well as the record of the election petition including photocopies of the ballot papers in question. 22. Prayer of the election petition reads as under: a) To declare the election of Respondent No. 1 to the Legislative Council 18-Nizamabad Local Authority Constituency, Nizamabad held on 30.3.2009 as illegal and void; b) To direct recounting and scrutiny of the ballot papers and validate three votes cast in favour of the Petitioner; c) To declare one vote cast in favour of the Respondent No. 1 as invalid; d) To set aside the election of the first Respondent as the member of the Legislative Council from 18-Nizamabad Local Authority Constituency; e) To declare the Petitioner as elected to the Legislative Council of the State of Andhra Pradesh from 18-Nizamabad Local Authority Constituency in the election held on 30.3.2009; f) To award costs of the petition. 23. The particulars as per the election petition in respect of the aforesaid facts had been as under: a) one vote was polled in favour of the Petitioner by marking figure '1', but the same was doubted as it looked like '7' and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s valid. This was also, however, objected to by the first Respondent that it looks like '7' and not '1'. But, it would clearly appear that the voter marked the figure '1' and there is a small extension towards left of the said figure on the top. The Learned Counsel appearing for the first Respondent would contend that the intention of the voter is absolutely no relevance since the rules specifically state that the figure '1' has to be put. While discussing the rules and referring to the judicial pronouncements, I have already held that a duty is cast upon the Returning Officer as well as the court to ascertain the intention of the voter. As long as the figure marked resembles '1', it is illegal to reject the ballot mechanically whenever a doubt arises that the figure marked does not accord in all respects with the figure viewed by the Returning Officer or the court. This ballot, however, clearly shows that the figure '1' was specifically and correctly marked and therefore, the Returning Officer rightly validated the said vote in favour of the Petitioner. In Ex. X-2, the voter marked figure '1' in the panel meant for the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have gone through the record of the case including the four disputed ballots i.e. Ex. X-1 to 3 and Ex. Y-13 with the help of the Learned Counsel for the parties. We agree with the reasoning given by the High Court with respect to Ex. X-1 and 2. However, Ex. X-3 has to be held to be an invalid ballot because of the ambiguity and the additional marking i.e. his vote is for Venkata Rama Reddy on it. Further, though the elector has put the mark '1' in front of the name of the Respondent No. 1, however, he has also put a tick mark in front of the name of the Appellant. Therefore, it is impossible to make out in whose favour the elector has voted and hence, this ballot is rejected as being invalid. 29. As regards Ex. Y-13, the voter has, in addition to putting the mark '1' in front of the name of the Respondent No. 1, put his signature as well. The said signature is legible and distinguishable and keeping in mind that only 701 votes were polled, it would not be difficult to identify the elector and, thus, the ballot is invalid being hit by Rule 73 (2) (d) of the Rules. 30. In view of the above, after modification of the impugned judgment and order, the Appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 1. Ground (b) relates to Ex. P-16, wherein one long stroke is made to make a mark denoting the number '1'. However, on the upper side of the stroke there is also a small curve connecting the stroke. The Appellant has claimed that due to the said curve the figure on the ballot is in fact '9' and, hence, should have been declared invalid. The contention is noted just to be rejected as such a figure is to be read only as '1' for it is impossible to take such a technical and impractical view. If all the ballots are started to be scrutinized and examined in such a hyper technical manner then most of the ballots would only stand rejected. Hence, we hold that the mark '1' is made on Ex. P-16 and the same is to be counted in favour of Respondent No. 1 as has been done. 34. However, Ex. Y-11 is to be declared as invalid. Not only is there scribbling on the said ballot but the final mark that is made on the ballot is '2' which is in direct conflict with Rule 73(2)(a) of the Rules and hence, the Returning Officer rightly rejected the same. 35. In view of the above, we reach the inescapable conclusion that even after deciding the Recriminati ..... 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