Akhand
Pratap Singh Yadav Vs. Kunwar Surendra Pratap Singh & 24 Ors [1996] INSC 41
(10 January 1996)
J.S.
Verma, K. Venkataswami K. Venkataswami, J.
ACT:
HEAD NOTE:
Aggrieved
by the dismissal of his Election Petition No.36 of 1990 on the file of High
Court of Madhya Pradesh, the appellant has filed the present appeal under
Section 116-A of the Representation of the People Act 1951, hereinafter called
the Act.
In the
election held in the month of February, 1990 for No. 44 - Jatara Constituency
in the District of Tikamgarh, madhya Pradesh, the appellant alongwith 24 others
candidates contested in that constituency by filing nomination. The appellant
polled 13,16 votes while respondent No. 2 was polled 15,221 votes. Respondent
No. 2 having secured 1505 votes, more than the votes polled by the appellant,
was declared elected to the said Constituency. the appellant challenged the
election of the second respondent by filing the Election Petition in the High
Court.
The
main grounds of attack in the Election petition were that his full name is 'Akhand
Pratap Singh Yadav', but in the voter's list as well as in the ballot papers
his name was shown as 'Akhand Pratap Singh'. The failure to give his surname 'Yadav
& both in the voters' list and in the ballot papers had materially affected
the voting and the result of the returned candidate to the prejudice and
detriment' of the appellant. According to the appellant he had convassed
throughout the Constituency giving prominence to his full name, namely, 'Akhand
Pratap Singh Yadav', whereas in the ballot papers his name was mentioned as 'Akhand
Pratap Singh' which sounded similar to the name of the returned candidate,
namely' Surendra Pratap Singh' which created confusion in the minds of the
voters in particular amongst the rural and uneducated voters who were familiar
with the appellant's/petitioner's name as 'Yadav'.
The
second ground of attack was that that the Returning Officer failed to prepare a
complete layout of the counting hall for each Constituency and also failed to
give the appellant a notice of the time and place for counting of votes at
least one week before the date fixed for counting as required by the rules and
guidance contained in the handbook issued for the guidance of the Returning
Officer.
As a
consequence of that the appellant could not prepare his list of required
counting agents. It was also averred in the Election Petition that adequate
arrangements for counting of votes were not made by the Returning Officer and
that there were open malpractices of manipulations in the counting of votes in favour
of the returned candidate. Yet another contention taken in the election
petition was that the Returning Officer had refused to admit his counting
agents in the counting hall. The appellant was informed that there would be 14
tables for counting and two tables for Returning Officer in the counting hall.
The petitioner could however manage to submit only ten completed forms with
photographs of his proposed counting agents. He could not submit four more
forms with photographs of his proposed counting agents for want of sufficient
time and the Returning Officer declined to revive his forms stating that they
were not given within the time fixed for that purpose. This resulted n some
counting tables unattended on behalf of the petitioner/appellant. The election
of second respondent also was challenged on the ground that the
petitioner's/appellant's application for re-count was arbitrarily rejected by
the Returning Officer and if a re- count had been allowed, the appellant would
have got more votes than respondent No. 2.
In the
High Court the petitioner examined himself as P.W. 2, apart from other
witnesses. The appellant has also filed a number of documents in support of his
case. The learned Judge on a careful consideration of the pleadings, documents
and the oral evidence found that the appellant had not filed any application
under rule 8/9 of Election Rules before the Returning Officer for addition of
his surname 'Yadav' to his name in the list of the nominated candidates, as
alleged. The non-addition of the petitioner's surname 'Yadav' in the ballot
papers did not materially affect the voting and result to the detriment of the
appellant. The learned Judge further held that though it was obligatory on the
part of the Returning Officer to prepare the layout of the counting hall and
given notice of time and place of counting votes to all the candidates, well in
advance, the failure to do so, on the facts of this case, did not materially
affect the results of the election. The further finding of the learned Judge
was that the appellant failed to prove that he was wrongly denied to add four
more counting agents on the ground that the request was made after expiry of
the time while such request was acceded to for admitting counting agents of the
B.J.P. candidates. The learned Judge also found that the allegations with
respect to arrangement and malpractices in the counting of votes were not
proved by giving necessary material. In the light of the findings, the High
court dismissed the Election Petition with costs.
The
learned counsel or the appellant, while reiterating the contention regarding
the failure on the part of the Returning Officer to add his surname also
submitted that Jatara Constituency consisted of 148 polling booths and the
counting of votes factually took palace only for the 147 polling booths and the
votes in one polling booth had not been counted.
Let us
dispose of the additional contention which was not raised before High Court at
the outset. A perusal of the Election Petition does not show that such a
contention, though serious one, has been raised and presumably for that reason
no issue was framed on that aspect. Even before us, the learned counsel was not
in a position to contend that such a plea was taken out not considered. he
could not also argue that sufficient evidence was let in to substantiate that
plea. The contention being one which requires evidence t be let in, we are not
able to appreciate the contention in the absence of pleadings and evidence and,
therefore, we reject the same.
The
learned counsel for the appellant, no doubt elaborately argued on the question
concerning the failure on the part of the Election authorities in not adding
the surname of the appellant in the voters list and in the ballot papers. The
learned Judge has also dealt with this aspect elaborately by referring to the
evidence of the appellant as PW2 and one Subhash Chandra Suri, Grade 'I' Clerk
in the Collectorate, Tikamgarh (PW1) who was on election duty in the Election
Office during February, 1990 Assembly elections. Except the oral assertion of
the appellant as PW2 that he made the application under Rule 8 requesting the
Returning Officer to correct his name in the list of nominated candidates by
adding his surname 'Yadav' against his name 'Akhand Pratap Singh' shown in the
voter list, no other documentary evidence was produced of PW1, it was found
that the appellant neither filed any application for suffixing his surname 'Yadav'
to his name, nor was there any order of the Returning Officer including the
surname, as asserted by the appellant, in the records. It was also further
brought out in the oral evidence of the appellant as PW2 that he had contested Lok
Sabha elections without the surname 'Yadav'; that he always used to sign as 'Akhand
Pratap Singh' only and in the present Election Petition he has only singed as 'Akhand
Pratap Singh' without suffixing his surname 'Yadav'. The contention that he was
popularly known as 'Yadav' and he canvassed through out the constituency giving
prominence to his full name 'Akhand Pratap Singh Yadav' and failure to add his
surname in the ballot papers created confusion in the minds of voters
especially amongst the rural uneducated voters cannot be accepted; for the
simple reason that the rural and uneducated voters go by the symbol allotted to
the candidates and not by the name of the candidates. For all these and other
well founded reasons, the learned Judge has rejected the contention and we are
in agreement with that conclusion.
Even
on other issues the findings of the learned Judge are very well based on
evidence and we find no good reason to differ from the learned Judge.
In the
result we find no ground to interfere with the Judgment and Order of the
learned Judge. Consequently the appeal fails and is dismissed with costs.
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