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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 5710-5711  OF 2012

Arikala Narasa Reddy                    …Appellant

Versus

Venkata Ram Reddy Reddygari & Anr.                  …Respondents

J U D G M E N T   

Dr. B. S. CHAUHAN, J.

1.   These  appeals  have  been  preferred  against  the  impugned  

judgment  and order  dated 20.7.2012,  as  amended vide  order  dated  

23.7.2012,  of  the  High  Court  of  Judicature  of  Andhra  Pradesh  at  

Hyderabad  in  Election  Petition  No.2  of  2009  and  Recrimination  

Petition No.1 of 2009.

2. Facts and circumstances giving rise to these appeals are that:-

A. An election  was held  on 30.3.2009 for  18-Nizamabad  Local  

Authority  Constituency  of  the  Andhra  Pradesh  Legislative  Council

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wherein the appellant stood declared as successful candidate and had  

since then been a Member of Legislative Council (MLC).

B. The respondent no.1, defeated candidate, filed Election Petition  

No.2  of  2009  on  the  ground  that  certain  invalid  votes  had  been  

counted in favour of the appellant and certain valid votes which were  

cast  in  favour  of  the  respondent  no.1  had  wrongly  been  declared  

invalid.

C. The election petition was to be decided on the basis of the fact  

that election for the said post was held on 30.3.2009 wherein out of  

706 total votes, 701 votes were cast.   

D. The  votes  were  counted  on  2.4.2009  and  initially  both  the  

contesting candidates are said to have got equal number of votes as  

336 each while 29 votes were found invalid.   

E. On  the  application  of  the  appellant  herein,  the  Returning  

Officer allowed re-counting of all the votes wherein the appellant got  

336 votes and the respondent no.1 secured 335 votes and 30 votes  

were found to be invalid and therefore, the appellant was declared to  

be the successful candidate and elected as MLC by a margin of one  

vote.  

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F. The election  petition  was  filed  mainly  on  the  ground that  3  

votes in question Ex.X-1 to X-3 polled in favour of the respondent  

no.1 had been wrongly rejected and one vote Ex.Y-13 which had been  

counted in favour of 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.

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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  directed  to  first  determine  the  question  relating  to  the  

validity of the 3 disputed votes and, thereafter, to examine the issue of  

re-counting of all the votes, if required.   

K. The  High  Court,  in  pursuance  of  the  order  of  this  Court,  

scrutinized  and  examined  the  3  disputed  votes  in  question  in  the  

presence of the parties and their counsel from the bundle of disputed  

votes, and after identifying them with the assistance of the parties and  

their  counsel,  had  taken  the  photocopies  thereof.   The  said  

photocopies were supplied to the parties and were marked as Ex.X-1,  

X-2 and X-3.  

L. The  High  Court  scrutinized  and  examined  the  3  votes  on  

24.1.2012 and came to the conclusion that the Returning Officer had  

wrongly rejected the said 3 votes as invalid and ordered that all the 3  

disputed votes to be counted in favour of respondent no.1.

M. Aggrieved,  the  appellant  challenged  the  said  order  dated  

24.1.2012 by filing Special Leave Petition (C) No.4728 of 2012 and  

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this Court disposed of the said SLP on 7.2.2012 observing that it was  

not appropriate to interfere at that stage but the appellant would be at  

liberty to urge the same point at the time of final hearing. Thus, this  

Court did not interfere with the same being an interim order.

N. The High Court during the trial of the election petition picked  

up  17  ballot  papers  from  the  bundle  of  rejected  ballot  papers  as  

determined by the Returning Officer and marked the same as Ex.Y-1  

to Y-17.  The High Court also picked up 2 ballot papers from the valid  

votes of the appellant and marked the same as Ex.R-1 and R-2.  Four  

ballot papers were picked up from the valid votes of respondent no.1  

and marked as Ex.P-16 to P-19.   After considering all  these ballot  

papers,  the  High  Court  vide  judgment  and  order  dated  20.7.2012  

allowed the election petition holding that certain votes cast in favour  

of  respondent  no.1  had wrongly  been rejected  and  the  vote  which  

should have been declared as invalid had wrongly been counted in  

favour of  the appellant  as valid and thus,  the respondent  no.1 was  

declared as successful candidate and elected as MLC. The operation  

of  the  aforesaid  judgment  dated  20.7.2012  was  stayed  only  for  a  

period of 4 weeks to enable the appellant to approach this Court.   

Hence, these appeals.

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3. Shri B. Adinarayana Rao, learned senior counsel appearing for  

the  appellant  has  submitted  that  the  election  petition  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 appeals contending that  

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even if  the case is  restricted to  aforesaid  4 votes,  as  submitted by  

learned counsel for the appellant, the result so declared by the High  

Court  is  not  materially  affected.   The  Returning  Officer  had  

committed an error  in  declaring the 3 valid  votes in favour  of  the  

respondent no.1 as invalid and miscounted one vote as valid.  Thus, in  

such a fact-situation, the intention of the elector has to be inferred in  

view of the statutory rules and executive instructions issued by the  

Election Commission for counting the ballot papers.  Therefore, the  

judgment delivered by the High Court can by no means be termed as  

perverse and no interference is called for.  The appeals lack merit and  

are liable to be dismissed.

5. We have heard the learned counsel for the parties and perused  

the record.

6. Section 87 of the Act provides that the election petition is to be  

tried by the High Court applying the provisions of the Code of Civil  

Procedure, 1908 (hereinafter referred to as the ‘CPC’) “as nearly as  

may be” and in accordance with the procedure applicable under CPC  

and  the  provisions  of  the  Indian  Evidence  Act,  1872  (hereinafter  

referred to as the ‘Evidence Act’) shall also be applicable subject to  

the provisions of the Act.   

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7. It is a settled legal proposition that the statutory requirements  

relating to election law have to be strictly adhered to for the reason  

that  an  election  dispute  is  a  statutory  proceeding  unknown to  the  

common law and thus, the doctrine of equity, etc. does not apply in  

such  dispute.  All  the  technicalities  prescribed/mandated  in  election  

law have been provided to safeguard the purity of the election process  

and courts have a duty to enforce the same with all rigours and not to  

minimize  their  operation.  A  right  to  be  elected  is  neither  a  

fundamental  right  nor a common law right,  though it  may be very  

fundamental to a democratic set-up of governance. Therefore, answer  

to every question raised in election dispute is to be solved within the  

four  corners  of  the statute.  The result  announced by the Returning  

Officer  leads  to  formation  of  a  government  which  requires  the  

stability and continuity as an essential feature in election process and  

therefore,  the  counting  of  ballots  is  not  to  be  interfered  with  

frequently.  More  so,  secrecy  of  ballot  which  is  sacrosanct  gets  

exposed if 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,  

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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 mis-count 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  evidence  that  by  a  particular  

irregularity/illegality, the result of the election has been “materially  

affected”. There can be no dispute to the settled legal proposition that  

“as a rule relief not founded on the pleadings should not be granted”.  

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Thus, a decision of the case should not be based on grounds outside  

the pleadings of the parties. In absence of pleadings, evidence if any,  

produced by the parties, cannot be considered. It is also a settled legal  

proposition  that  no  party  should  be  permitted  to  travel  beyond  its  

pleadings  and parties  are  bound to  take  all  necessary  and material  

facts in support of the case set up by them. Pleadings ensure that each  

side is fully alive to the questions that are likely to be raised and they  

may have an opportunity of placing the relevant evidence before the  

court  for  its  consideration.  The  issues  arise  only  when  a  material  

proposition of fact or law is affirmed by one party and denied by the  

other  party.  Therefore,  it  is  neither  desirable  nor  permissible  for  a  

court to frame an issue not arising on the pleadings. The court cannot  

exercise discretion of ordering recounting 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.  (Vide: Ram Sewak Yadav  

v. Hussain Kamil Kidwai & Ors.,  AIR 1964 SC 1249; Bhabhi v.  

Sheo Govind & Ors.,  AIR 1975 SC 2117; and  M. Chinnasamy v.  

K.C. Palanisamy & Ors., (2004) 6 SCC 341).  

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10. There may be an exceptional case where the parties proceed to  

trial fully knowing the rival case and lead all the evidence not only in  

support of their contentions, but in refutation of the case set up by the  

other side. Only in such circumstances, absence of an issue may not  

be fatal and a party may not be permitted to submit that there has been  

a mis-trial and the proceedings stood vitiated. (Vide:  Kalyan Singh  

Chouhan v. C.P. Joshi, AIR 2011 SC 1127).  

11. The  secrecy  of  a  ballot  is  to  be  preserved  in  view  of  the  

statutory provision contained in Section 94 of the Act.   Secrecy of  

ballot has always been treated as sacrosanct and indispensable adjunct  

of free and fair election. Such principle of secrecy is based on public  

policy aimed to ensure that voter may vote without fear or favour 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  & 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  

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to wave of such benefit.  The very concept of privilege inheres a right  

to wave it.  (See also: Kuldip Nayar v. Union of India & Ors., AIR  

2006 SC 3127; and  People’s Union for Civil Liberties & Anr. v.  

Union of India & 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 referred to as  

`Rules’). Rule 73(2) of the Rules reads as under:

“73.   Scrutiny and opening of ballot boxes and the  packets of  postal ballot papers:  

(1) xx xx xx

(2) A ballot paper shall be invalid on which-  

(a)   the figure ‘1’ is not marked;  or  

(b)  the figure ‘1’ is set opposite the name of more than  one  candidate or  is  so  placed as to render it doubtful to  which candidate  it  is intended to apply;  or   

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(c)  the figure ‘1’ and some other figures are set opposite  the name  of the same candidate;  or

(d)  there  is  any  mark  or writing by  which  the  elector  can  be identified.    

xx xx xx”

14. In  Dr. Anup Singh v. Shri Abdul Ghani & Anr., AIR 1965  

SC 815, a Constitution Bench of this Court considered the provisions  

of Rule 73(2)(d) which provides that a ballot paper shall be invalid if  

“there is any mark or writing by which the elector can be identified”.  

The Court observed as under:    

“10…Thus there are three possible interpretations of the   words "by which the elector can be identified" appearing   in Rule 73(2)(d), namely (i) any mark or writing which   might possibly lead to the identification of the elector,   (ii) such mark or writing as can reasonably and probably   lead to the identification of the elector, and (iii) the mark   or writing should be connected by evidence aliened with   an  elector  and  it  should  be  shown that  the  elector  is   actually identified by such mark or writing.  11.  ….When the  legislature  provided that  the mark  or   writing should be such that the elector can be identified   thereby  it  was  not  providing for  a  mere  possibility  of   identification.  On  this  construction  almost  every   additional mark or writing would fall within the mischief   of  the  provision.  If  that  was  the  intention  the  words   would have been different,…. 12. We are further of opinion that the third construction   on which the appellant relies also cannot be accepted. If   the intention of the legislature was that only such votes   should be invalidated in which the elector was actually   

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identified because of the mark or writing, the legislature   would not have used the words "the mark or writing by   which the elector can be identified". These words in our   opinion  do  not  mean  that  there  must  be  an  actual   identification of the elector by the mark or writing before   the vote can be invalidated. If such was the intention of   the legislature clause (d) would have read 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 & 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 and hence no effect can be given   to that intention.”                                 (Emphasis added)

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While considering the case, this Court placed reliance upon its  

earlier judgment in  Hari Vishnu Kamath v. Syed Ahmad Ishaque  

& Ors., AIR 1955 SC 233.

16. In Km. Shradha Devi v. Krishna Chandra Pant & Ors., AIR  

1982 SC 1569, this Court considered the provisions of Rule 73(2)(d)  

of the Rules and held as under:  

“A ballot paper shall be invalid on which there is any   mark or writing by which the elector can be identified.   Section 94 of  the Act  ensures  secrecy  of  ballot  and it   cannot be infringed because no witness or other person   shall be required to state for whom he has voted at an   election.  Section  94  was  interpreted  by  this  Court  in   Raghubir Singh Gill (supra), to confer a privilege upon  the voter not  to be compelled to disclose how and for   whom he voted. To ensure free and fair election which is   pivotal  for setting up a parliamentary democracy,  this   vital principle was enacted in Section 94 to ensure that a   voter would be able to vote uninhibited by any fear or   any  undesirable  consequence  of  disclosure  of  how  he   voted. As a corollary it is provided that if there is any   mark or writing on the ballot paper which enables the   elector  to  be  identified,  the  ballot  paper  would  be   rejected as invalid. But the mark or writing must be such   as would unerringly lead to the identity of the voter.”

17. If  all  the  judgments  referred  to  hereinabove  in  respect  of  

interpreting the provisions of Rule 73(2)(d) are conjointly considered,  

we  are  of  the  opinion  that  there  must  be  some  casual  connection  

between the mark and the identity of the voter and such writing or  

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marking itself must reasonably give indication of the voter’s identity.  

As to  whether  such marking or  writing in  a  particular  case  would  

disclose  the  identity  of  the  voter,  would  depend  on  the  nature  of  

writing or  marking on the ballot  involved in each case.  Therefore,  

such marking or writing must be such as to draw an inference about  

the  identity  of  the  voter.  To  that  extent,  with  all  humility  at  our  

command, we have to say that word “unerringly” used by this Court  

in Km. Shradha Devi (supra) is not in consonance with the law laid  

down by the Constitution Bench of this Court  in  Dr. Anup Singh  

(supra).  

18. This  brings  us  to  the  next  question  involved  herein  as  to  

whether election petition and recrimination petition have to be tried  

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  

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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 election is  

concerned, and if as a result of the said enquiry, declaration is made  

that the election of the returned candidate is void, then the Tribunal  

will proceed to deal with the alternative claim, but in doing so, the  

returned candidate will not be allowed to lead any evidence because  

he is precluded from raising any pleas against the validity of the claim  

of the alternative candidate. (Vide:  Jabar Singh v. Genda Lal, AIR  

1964 SC 1200; Ram Autar Singh Bhadauria v. Ram Gopal Singh  

& Ors., AIR 1975 SC 2182; and Bhag Mal v. Ch. Parbhu Ram &  

Ors., AIR 1985 SC 150).

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19. The instant case requires to be considered in light of the above  

settled legal propositions.

In the instant case, as explained hereinabove, there were 706  

total votes, out of which 701 votes were polled. At the time of initial  

counting on 2.4.2009, both the candidates got equal votes as 336 and  

29  votes  were  found  invalid.  On  the  request  of  the  appellant,  the  

Returning Officer permitted recounting of the votes and the appellant  

got 336 votes while the respondent no.1 got 335 votes and 30 votes  

were found to be invalid. In the election petition, the only grounds had  

been that 3 votes i.e. Ex.X-1 to X-3 polled in favour of respondent  

no.1 which had wrongly been rejected and one vote Ex.Y-13 which  

had  been  counted  in  favour  of  the  appellant  ought  to  have  been  

declared invalid.  

20. In view of the pleadings in the election petition, the case should  

have  been  restricted  only  to  these  four  votes  and  even  if  the  

recrimination petition is taken into account, there could have been no  

occasion for the High Court to direct recounting of all the votes and in  

case certain discrepancies  were found out in recounting of votes by  

the Registrar of the High Court as per the direction of the High Court,  

it was not permissible for the High Court to take into consideration all  

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such discrepancies and decide the election petition or recrimination  

petition on the basis thereof. The course adopted by the High Court is  

impermissible and cannot be taken note of being in contravention with  

statutory requirements. Therefore, the case has to be restricted only to  

the four votes in the election petition and the allegations made in the  

recrimination petition ignoring altogether what had been found out in  

the recounting of votes as under no circumstance the recounting of  

votes at that stage was permissible.    

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;

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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  was kept under doubtful votes.

b) One vote which was polled in favour of the  petitioner by marking figure ‘1’ was doubted  on the ground that it looked like ‘dot’.

c) One vote which was polled in favour of the  petitioner by marking figure ‘1’ was treated  as doubtful vote on the ground that the name  of  the  petitioner,  the  contesting  candidate  was written on the ballot paper.

24. On the basis of the pleadings, the following issues were framed:  

1. Whether the petitioner has got a prima facie  case to an order of scrutiny and recounting  of ballot papers as prayed for in the election  petition?

2. Whether three (3) votes polled in favour of  the petitioner as set out in paras 10 and 11 of  the election petition are improperly refused  or rejected?

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3. Whether  one  (1)  vote  improperly  received  and  counted  in  favour  of  the  returned  candidate  as  set  out  in  para  10  of  the  election petition?

4. Whether  the  election  of  the  returned  candidate  has  been  materially  affected  by  improper  refusal  or  rejection  of  three  (3)  votes  polled  in  favour  of  the  election  petitioner and improper reception of one (1)  vote  in  favour  of  returned  candidate  as  stated  in  paras  10  and  11  of  the  election  petition?

5. Whether  the  election  of  the  respondent/returned  candidate  has  to  be  declared as void?

6. To what relief?  

25. 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,  

AIR 2010 SC 1227; and  Uttamrao Shivdas Jankar v. Ranjitsinh  

Vijaysinh Mohite Patil, AIR 2009 SC 2975.  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.   

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26. The High Court had examined the votes in dispute and came to  

the following findings:

“Coming to Ex.X-1, the figure ‘1’ is clearly  marked by  the voter in the panel meant for the petitioner in the ballot  paper. Though, it was not in the space which is actually  meant  for  marking  figure  ‘1’,  since  it  is  in  the  panel  (space) provided for the petitioner, it has to be treated as  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  petitioner.  It  was  objected  to  by  the  first  respondent  that  it  looks  like  ‘dot’.  On  careful  examination, I found that the voter in fact marked figure  ‘1’, but it is short in length and the width appears to be  more  because  of  the  discharge  of  more  ink  from  the  instrument  supplied  to  the  elector  by  the  Returning  Officer  for the purpose of marking. According to me,  this  was  improperly  rejected  by  the  Returning  Officer  

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saying that it looks like ‘dot’, but not one. By carefully  examining the ballot paper unhesitatingly, I hold that the  voter  marked  figure  ‘1’  and  it  has  to  be  validated  in  favour  of  the  petitioner  and  accordingly,  the  same  is  validated for the petitioner.  

         xxx               xxx               xxx              xxx

In Ex.X-3, a ‘tick’ mark was put in the column meant for  the first respondent in addition to figure ‘1’ which was  clearly  put  in  the  space  meant  for  the  petitioner.  This  apart, the voter wrote that his vote is for ‘Venkata Ram  Reddy’ (petitioner). By the said writing, it is not possible  to  identify  the  voter.  From  the  writing,  it  is  also  not  possible  to  draw  any  inference  that  there  was  prior  arrangement between the petitioner and the voter to write  those words. It is also not possible to presume that the  writing furnishes any reasonable or probable information  or  evidence  to  find  out  the  identity  of  the  voter.  As  regards  the  ‘tick’  mark  since  such  mark  is  not  contemplated by the rules it  has to be ignored.  For all  these reasons, since the figure ‘1’ was clearly put by the  voter, it has to be validated in favour of the petitioner.  Accordingly,  the  same  is  validated  in  favour  of  the  petitioner.  

xxx               xxx               xxx              xxx

As regards  Ex.Y-13,  it  requires  to  be  noticed  that  the  figure ‘1’ was clearly and specifically put in the column  meant  for  the  petitioner.  However,  the  elector  in  the  space provided for the petitioner for  marking the figure  put his signature apart from marking figure ‘1’. From the  signature also it is not possible to trace out the identity of  the voter and therefore, this vote also can be validated in  favour of the petitioner and accordingly, it is validated in  favour of the petitioner.”    

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27. In view of the  above, the  High Court concluded the trial of the  

election petition declaring the respondent elected by margin of two  

votes as he secured 338 votes, while the appellant secured 336 votes.

28. We 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.    

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30. In  view  of  the  above,  after  modification  of  the  impugned  

judgment and order, the appellant and the respondent no.1 get equal  

number  of  votes  i.e.  336  votes  each.  Therefore,  the  judgment  and  

order of the High Court insofar as it relates to allowing the election  

petition is modified to that extent.    

31. In such a fact-situation provisions of Section 102 of  the Act  

have to be resorted to, however, as the result  of the election stood  

materially affected, we may first consider the recrimination petition  

filed by the appellant. In the recrimination petition, the appellant had  

raised the following issues:

“(a)    That one vote marked as ‘7’ was illegally counted  

in  favour  of  the  1st Respondent  herein  by  the  2nd  

Respondent  in  spite  of  the  objections  raised  by  the  

petitioner  at  the  time  of  counting  and  a  written  

application  to  reject  the  said  vote  was  filed  by  the  

petitioner herein.  

(b)       The 2nd Respondent has illegally counted one vote  

in favour of the 1st Respondent though the figure ‘9’ was  

marked  on  the  ballot  paper  and  though  it  is  clearly  

looking as ‘9’.  

(c)     The 2nd  Respondent has illegally rejected one vote  

which is validly polled in favour of the petitioner herein  

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on the ground that the voter has put '2' after the figure '1'  

in the column allotted to the petitioner. According to law,  

the 2nd  Respondent  has to treat that vote as valid and  

counted in favour of the petitioner herein in whose favour  

'1'  is  put  on  the  ballot  paper  and  by  ignoring  the  

subsequent figure.  

(d)   The 2nd Respondent has illegally rejected some other  

votes validly polled in favour of the petitioner on flimsy  

and untenable grounds.”  

32. As regards the ground (d) it is to be noticed that the same is  

non-descriptive  and  vague.  Any  ground  raised  in  a  recrimination  

petition has to be specific and the court cannot be asked to make a  

roving  and  fishing  enquiry  on  the  mere  asking  of  a  party.  Thus,  

ground (d) is not worth consideration.

33. Coming  to  ground  (a),  the  same  relates  to  Ex.P-19.   The  

appellant has claimed that on the said ballot mark `7’ had been put  

which was treated as mark `1’ and counted in favour of the respondent  

no. 1.  On a careful examination of the said exhibit, it is to be held that  

though the same may appear to be `7’ but it is also another form of  

writing  `1’  and  thus,  there  was  no  illegality  committed  by  the  

Returning Officer in holding the same in favour of the respondent no.  

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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 Recrimination Petition, the appellant and the  

respondent no.1 have received equal number of votes.

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36. In  such  a  fact-situation  the  decision  as  to  who  will  be  the  

returned candidate is to be decided by the draw of lots by virtue of the  

provisions of Section 102 of the Act.    

37. In view of the above, in the presence of all the learned counsel  

for the parties we have drawn the lots in the open Court and by draw  

of lots, the appellant succeeds.   

38. The  appeals  stand  disposed  of  accordingly  in  favour  of  

appellant.  No costs.

                             …………......................J.                                            (Dr. B.S. CHAUHAN)

             ……….........................J.                      (J. CHELAMESWAR)

             ……….........................J.                                     (M.Y. EQBAL)

NEW DELHI

February 4, 2014.

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