Full Judgment Text
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PETITIONER:
TADUR BALA GOUD
Vs.
RESPONDENT:
M. NARAYAN REDDY & ORS.
DATE OF JUDGMENT27/02/1989
BENCH:
THOMMEN, T.K. (J)
BENCH:
THOMMEN, T.K. (J)
DUTT, M.M. (J)
CITATION:
1989 AIR 875 1989 SCR (1) 840
1989 SCC Supl. (1) 690 JT 1989 (1) 420
1989 SCALE (1)525
ACT:
Representation of the People Act, 1951: Section
19A--Election Commission--Secretary--Competence to appoint
Assistant Returning Officers--Under Secretaries--Whether
authorised to authenticate orders, notifications, on
behalf of the Election Commission.
Administrative Law: Notification--Publication of--By
exhibition on notice board--Whether amounts to sufficient
notice to all persons.
HEADNOTE:
In the Lok Sabha elections held in 1984, the appellant was
declared elected from the Nizamabad Parliamentary Constitu-
ency. He .secured 2,51,172 votes, while Respondent No. 1 got
2,48,725 votes. An election petition under Sections 80 and
81 of the Act was filed in the High Court, by the First
Respondent; challenging the election of the appellant on
grounds of illegalities and irregularities in the counting
of votes, impersonation of voters and corrupt practices. The
High Court set aside the election only on one ground that
is, the Additional Returning Officers in respect of the
Nizamabad Parliament Constituency were not appointed and
authorised by the Election Commission to perform the duties
and functions of Returning Officers and every action taken
by such officers, including the rejection of doubtful ballot
papers, is absolutely illegal, void and forbidden by law.
The High Court gave directions to the Election Commission
for recounting.
This appeal, by special leave, is against the High
Court’s order setting aside the election.
On behalf of the appellant, it was contended that the
officers were duly appointed and authorised by the Election
Commission. The First Respondent contended that the officers
were not duly appointed by the Election Commission and that
their purported exercise of power as Additional Assistant
Returning Officers was without authority and in contraven-
tion of the relevant legal provisions.
Allowing the appeal,
841
HELD: 1.1. Under Section 19A of the Act, the Secretary
to the Election Commission is empowered to perform the
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functions of the Election Commission under the Constitution,
relevant statutes and the rules. The Secretary is, there-
fore, competent to approve the revised list containing the
names of officers proposed by the Chief Electoral Officer.
[845H; 846A-B]
1.2. Under Secretaries are duly authorised to authenti-
cate all orders, notifications and other instruments on
behalf of the Election Commission, as per the Gazette of
India notification dated 5.4.1958. [847C]
2.1. In the instant case, the officers concerned were
duly appointed by the competent authority, viz, Secretary,
Election Commission, and were authorised to perform the
duties and functions of Assistant Returning Officers for the
Nizamabad Parliamentary Constituency. The appointments were
also duly notified to the Chief Electoral Officer, by commu-
nicating the same by an officer who was competent to authen-
ticate such orders. [847E]
2.2 Publication of the notification by exhibition on the
notice boards was, sufficient notice to all persons con-
cerned. [847F]
3. The High Court was not justified in setting aside the
proceeding of counting of votes and the resultant declara-
tion and in ordering a fresh counting of votes in respect of
the election from the Parliamentary Constituency in ques-
tion. The order of the High Court in so far as it relates to
the findings and directions in this regard is set aside.
[847G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 733 (NCE)
of 1988.
From the Judgment and Order dated 25.1.1988 of the
Andhra Pradesh High Court in Election Petition No. 1 of
1985.
G. Ramaswamy, Additional Solicitor General, A.V. Rangam
and J. Eswanah for the Appellant.
R. Vasudev Pillai, T.V.S. Krishnamurthy Iyer, Subodh
Markandeya, Smt. Chitra Markandeya, G. Seshagiri Rao, Ms.
Usha Saraswat, P. Parmeshwaran, Ms. A. Subhashini and M.
Narayan Reddy-inperson, for the Respondents.
842
The Judgment of the Court was delivered by
THOMMEN, J. This appeal by special leave arises from the
order of the high Court of Andhra Pradesh dated 25.1.1988 in
Election Petition No. 1 of 1985. The High Court by the
impugned order "set aside the proceedings of counting and
the resultant declaration" made on 28.12.1985 in respect of
the election to the Lok Sabha held on 27.12.1984 from 34,
Nizamabad Parliamentary Constituency consisting of 7 Assem-
bly Segments. The High Court directed the Secretary to the
Election Commission to conduct the counting of the votes
afresh in the said Constituency from which the appellant was
declared elected to the Lok Sabha. The 1st respondent, M.
Narayan Reddy was one of the six candidates who contested
the election. According to the result declared by the Re-
turning Officer, the appellant secured 2,51,172 votes while
the 1st respondent, the election petitioner, secured
2,48,725 votes. The 1st respondent filed Election Petition
under Sections 80 and 81 of the Representation of the People
Act, 195 1 (43 of 1951) (hereinafter referred to as the
’Act’) seeking a declaration that the election of the appel-
lant was void and that the 1st respondent was duly elected
from the said Constituency.
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The election was challenged by the 1st respondent broad-
ly on three grounds:
1. Illegalities and irregularities in the counting of votes.
2. Impersonation of voters, and
3. Corrupt practices.
The High Court on the basis of the pleadings of the parties
framed 25 issues, of which Issue No. 7 alone is relevant in
the present proceeding. The election was set aside by the
High Court solely on the basis of Issue No. 7, the other
issues having been either not pressed by the election peti-
tioner or found against him. Issue No. 7 reads:
"Whether the Additional Assistant Returning
Officers were not authorised to perform the
duties and functions of the Returning Officers
as alleged by the election petitioner.?"
The pleading in regard to this issue is contained in
paragraph 13 of the Election Petition. It reads:
843
"Be that as it may, the "Additional Returning
Officers" in respect of this Parliamentary
constituency were not appointed and authorised
by the Election Commission to perform the
duties and functions of the Returning Officer.
Therefore, every action taken by the said
Additional Assistant Returning Officers,
including the rejection of doubtful ballot,
papers, is absolutely illegal, void and for-
bidden by law. Hence, it is a serious irregularity
affecting the validity
of counting procedure adopted for counting of votes and on
this ground alone the petitioner is entitled to inspection
of the ballot papers and order for recount. These irregular-
ities have taken place during the counting in all the count-
ing hails numbering 7 in total."
This allegation was refuted by the appellant in his
written statement. He contended that the officers were
properly appointed and duly authorised.
Among the witnesses who testified on behalf of the
appellant in support of his contentions on this issue was
R.W. 8, an Under Secretary to the Election Commission. He
produced Exs. B-22 to B-28 and Exs. A-86 to A-88 as well as
Ex. X-1 containing documents relating to the relevant pro-
ceedings connected with the appointment of the Additional
Assistant Returning Officers. Certain documents initially
produced and sought to be filed by the appellant as addi-
tional documents were marked as Exs. C-5 to C-8 at the
instance of the election petitioner, the 1st respondent
herein.
The controversy under Issue No. 7, as seen above, was
whether the Additional Assistant Returning Officers were
duly appointed by the Election Commission. The Court on
consideration of the relevant documents held that they were
not duly appointed by the Election Commission and that the
votes of the 7 Assembly Segments of the said Constituency
were liable to be recounted. The Court accordingly issued
directions in that behalf to the Election Commission.
The main contention of the election petitioner, appear-
ing in person, in the High Court as well as here has been
that the officers in question were not duly appointed by the
Election Commission, and that their purported exercise of
power as Additional Assistant Returning Officers was without
authority and in contravention of the relevant legal provi-
sions. We see no merit in this contention.
844
The testimony of R.W. 8 and the documents proved by him
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leave no doubt that the officers in question were duly
appointed by the Election Commission. R.W. 8 says:
"It is true that Ex. A-55 is the copy of the notification
issued by the Election Commission of India and as is clear
from the document, it was published in the A.P. Gazette.
This notification Ex. A-55 shows that the District Collec-
tor, Nizamabad was appointed as a Returning Officer for
Nizamabad constituency. There is another notification No.
434/AP/84(2) showing appointment of Asst. Returning Offi-
cers. At Srl. No. 34 of the said notification the Joint
Collector, Nizamabad and Personal Asst. to Collector, Niza-
mabad were appointed as Asst. Returning Officers to the said
Constituency. The Commission received proposals from the
Chief Electoral Officer, Andhra Pradesh, appointing Asst.
Returning Officers for all the 42 Parliamentary Constituen-
cies including Nizamabad constituency. On receipt of the
proposals from the Chief Electoral Officer, the Election
Commission of India approved the proposals and this is the
true copy of the proposal that is approved. It is marked as
Ex. B-22. The letter received from the Chief Electoral
Officer as marked as Ex. B-23. It also contains the list of
21 Asst. Returning Officers for Nizamabad Parliamentary
Constituency. This notification covers all the 42 Parliamen-
tary constituencies including that of Nizamabad. The pream-
ble to the notification is given in the notification dated
19.11.84. On that basis to this notification the approved
list of Asst. Returning Officers is attached to this notifi-
cation. The notification was signed by the Under Secretary.
This notification Ex. B-24 was issued by the Under Secre-
tary. This notification was approved by the Secretary,
Election Commission of India, New Delhi. Ex. B-25 shows that
this was approved by Sri. K. Ganeshan on 18.11.1984 who was
at that time, the Secretary to the Election Commission of
India., New Delhi and a notification was issued consequently
on 19.11.84. Ex. B-26 is the original notification showing
the amendments made in respect of Asst. Returning Officers
in some parliamentary constituencies in the state of Andhra
Pradesh and that includes Nizamabad parliamentary constitu-
ency also. Serial No. 13 is amended designation of the Asst.
Returning Officer was approved by the Secretary as proposed
by
845
the Chief Electoral Officer, A.P. The ultimate notification
Ex. B-24 was issued by the Under Secretary but the approval
was made as per Ex. B-25 by the Secretary to the Election
Commission. The notification of Ex. B-24 was communicated as
per Ex. B-22 to the Chief Electoral Officer, A.P. Copies
of these notifications were communicated to the Chief
Secretary of Andhra Pradesh also. The amended notification
date 30-11-84 was also communicated to the Chief Electoral
Officer, Andhra Pradesh and a copy of it was also communi-
cated to the Chief Secretary, Andhra Pradesh. Ex. B-27 is
the true copy of the notification showing the amendments in
the list of the Assistant Returning Officers. Ex B-28 is the
communication of the approval of the amendments conveyed to
the Chief Electoral Officer, Andhra Pradesh by telex message
and copy of the notification date 30-11-84 was sent with the
post copy of the message."
Ex. X-1 contains the original documents the relevant
copies of which are marked as Exs. B-23 dated 14.11.1984,
B-25 dated 18.11.1984, B-22 dated 19.11.1984, B-24 dated
19.11.1984 and B-26 dated 30.11.1984. We have carefully
examined the original documents. We are satisfied that the
testimony of R.W. 8 is fully supported by the documents he
has referred to. By Ex. B-23 dated 14.11.1984 (see page 81
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of Ex. X-1) the Chief Electoral Officer, Andhra Pradesh
wrote to the Secretary to the Election Commission enclosing
a revised list of officers proposed for appointment as Addi-
tional Assistant Returning Officers for all the 42 Parlia-
mentary Constituencies for the purpose of counting of votes
etc. and requesting for the approval of the list by the
Election Commission. The revised list at page 137 of Ex. X-1
contains the names of the officers for 34, Nizamabad Parlia-
mentary Constituency. By Ex. B-25 dated 18.11.1984 (see
pages 1-2 of Ex. X-1) the list was approved by Shri K. Gane-
shan, the Secretary to the Election Commission. His signa-
ture dated 18.11.1984 appears at page 2 of Ex. X- 1. That
was an approval of the note dated 18.11.1984 put up by Shri
S.R. Sethi, the Under Secretary to the Election Commission,
reading "C.E.O.’s proposals at S. Nos. 7 and 8 above and the
action suggested at ’A’ above may be approved." It is thus
clear that the proposal made by the Chief Election Officer
and the revised list submitted by him received the approval
of the Secretary to the Election Commission. It has to be
noticed in this connection that Section 19A of the Act
empowers the Secretary to the Election Commission to per-
form, subject to certain
846
conditions, the functions of the Election Commission under
the Constitution and relevant statutes and rules. The Secre-
tary is, therefore, competent to give approval to the re-
vised list containing the names of officers proposed by the
Chief Electoral Officer. This fact of approval was duly
communicated by the Secretary to the Election Commission to
the Chief Electoral Officer, Andhra Pradesh by telex message
sent on 19.11.1984 (see Ex. B-22 at page 158 of Ex. X-1). It
was clarified in Ex. B-22 that the notification of the
Election Commission was not published in the Gazette of
India and it was not required to be published in the State
Gazette. The notification of the Election Commission was
sent with the post copy of the telex message. Ex. B-24 dated
9.11.1984 which is the post copy authenticated by Shri S.R.
Sethi, the Under Secretary to the Election Commission is
that notification (see pages 156-157 of Ex. X-1). It says
that "In exercise of the powers conferred by sub-section (1)
of section 22 of the Representation of the People Act, 195 1
(43 of 195 1), the Election Commission hereby
appoints ........ ". A list of the Assistant Returning
Officers appointed under the notification is appointed in
the table to Ex. B-24, and it begins with "Srikakulam Par-
liamentary Constituency". The names of the constituencies
and the officers are mentioned in the order in which they
are stated by the Chief Electoral Officer in his revised
list appended to Ex. B-23. However, Ex. B-24 specifically
mentions only Srikakulam Parliamentary Constituency. At the
end of the names in respect of that Constituency, the Under
Secretary authenticating the notification merely says
"please see pp 82-157". These are the pages of Ex. X-1
containing the entire revised list. By this device the
entire list appended to Ex. B-23 was incorporated into Ex.
24 notification, and the need for typing out all the names
in Ex. B-24 was thus avoided. Ex. B-26 dated 30.11.1984 (see
pages 177-179 of Ex. X- 1) is a notification issued by the
Election Commission making certain amendments to its earlier
notification dated 19.11.1984. Serial No. 17 of Ex. B-26 (at
page 178 of Ex. X-1) reads:
"At S. No. 13 against item No. 34-Nizamabad, the entry "13.
District Manager, A.P.S.C.S.C. Nizamabad" shall be substi-
tuted;"
This shows that the amendment in respect of 34, Nizamabad
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Parliamentary Constituency made by Ex. B-26 by substituting
entry 17 for the relevant entry in the revised list appended
to Ex. B-23 was in affirmation of the incorporation of the
entire revised list in Ex. B-24.
In the light of this evidence, there is no merit in the
contention
847
that the revised list was not approved by the Secretary to
the Election Commission and that the notification evidenced
by Ex. B-24 did not relate to 34, Nizamabad Parliamentary
Constituency. As stated earlier, Ex. B-25 evidences the
approval given by the Secretary to the Election Commission
to the revised list proposed by the Chief Electoral Officer
and the approval was duly notified and communicated by the
Under Secretary to the Election Commission to the Chief
Electoral Officer, Andhra Pradesh with a request to exhibit
the notification on the notice boards of the offices of the
concerned District Election Officers and Returning Officers.
In this connection, it may be noticed that Under Secre-
taries are duly authorised to authenticate all orders,
notifications and Other instruments on behalf of the Elec-
tion Commission (see notification No. 226/5/58 of Gazette of
India dated 5.4. 1958 appended to Volume I of Paper
Book--page 170).
In the circumstances, we see no merit in the contention
of the election petitioner, the 1st respondent herein, that
the concerned officers for the Parliamentary Constituency in
question had not been duly appointed by the competent au-
thority and that they were, therefore, not authorised to
perform the duties and functions of the Assistant Returning
Officers. These Officers were appointed by the Secretary to
the Election Commission who is undoubtedly to a competent
authority to make such appointments and his order appointing
them had been duly notified to the Chief Electoral Officer
by communicating the same by an officer who was competent to
authenticate such orders. The notification was directed to
be exhibited on the notice boards of the concerned offices.
No statutory provision has been brought to our notice re-
quiring formal publication of such notification in an Offi-
cial Gazette. Publication of the notification by exhibition
on the notice boards was, in our view, sufficient notice to
all persons concerned.
Accordingly, we hold that the High Court was not justi-
fied in setting aside the proceeding of counting of votes
and the resultant declaration and in ordering a fresh count-
ing of votes in respect of the election from the Parliamen-
tary Constituency in question. Consequently, we set aside
the impugned order of the High Court insofar as it relates
to the findings and directions regarding Issue No. 7. The
appeal is allowed in the above terms. In the circumstances
of this case, we make no order as to costs.
G.N. Appeal al-
lowed.
848