Sl.No. Polling Ballot Unit Replacement Whether the
station assigned in report Ballot unit
No. Ex.P.17 Ex.P.21 replaced is
Randomization found in the
List reserve list
Ex.P.18
1 72 EBUEE05600 EBUEE00391 YES
(Sl.No.11)
2 81 EBUEE01557 EBUEE00418 YES (Sl.No.4)
VII. The following VVPAT Machines which have been
used at the time of polling are neither found in Ex.P-
17 or P-18, the details as hereunder:
Judgement was challenged by Mr. P.H Pujar before
the Hon'ble Supreme Court, which was subsequently
reported in (2001) 6 SCC 558 wherein the Hon'ble
Supreme Court of India keeping the civil appeal
pending ordered for recount of 3872 Ballot Papers,
which were rejected and not counted at all in the
first instance (Paragraph No. 10). In the very same
case, the Supreme Court of India after receiving the
report regarding the recount, from the Registrar of
the Hon'ble High Court of Karnataka, Bengaluru
where there were discrepancies in the votes
recorded, however, the result of the election did not
change, set aside the order of the Single Judge since
the order of recount was ordered after setting aside
the election (Paragraph No. 15). The said Judgement
was reported in (2002) 3 SCC 742.
XIV. The Hon'ble Supreme Court of India in the case
of Basangouda Vs. Dr. S.B Amarkhed and others
reported (1992) 2 SCC 612 (Paragraph No. 9) has
clearly and categorically held that the court has the
power to open the counter foils and the marked
electoral roll if it is satisfied that a case for recount is
made out.
has clearly and categorically held that, if the court
finds that the election of the Returned Candidate has
been materially affected, then the court, on the
precise statements of material facts, permit for
recounting of ballots.
XVI. In the present case, the margin of victory is 676
votes. The 1824 (stated in Paragraph (v) supra)
votes which were polled on the date of polling insofar
in three polling station number (s) 153, 196, & 208
have not been counted at all. Therefore, the number
of votes not being counted being greater than the
victory margin clearly. establishes that the rest of
the election has been materially affected. Therefore,
in view of the law declared by the Hon'ble Supreme
Court of India as stated above, the petitioner has
made out a case for recounting of the three polling
stations.
XVII. Insofar as the on VVPAT machines which have
been used for voting, as stated in paragraph (iv) and
(vii) supra don't find the place in both Ex.P-17 & P-
18 and therefore, the votes recorded in the said
three polling station 39 are void votes, l.e., 1000
votes. Admittedly, no machines other than the ones
mentioned in the Second Randomisation List or the
Reserve List can be used in the election. Therefore,
the margin of election being 676 votes and that the
polling station No. 39 has recorded 1000 votes, the
result of the Election has been materially affected on
this Ground itself the Election is liable to be set
aside.
XVII. It is submitted that the Ballot Papers have
been counted and rejected contrary to Rule 54A of
the Conduct of Election Rules, 1961 since Form 13-A
has not been attested by Gazzetted Officer. Further,
the petitioner specifically requested for Postal Ballots
(Document No. v in Ex P8). However, the same was
not provided to the petitioner and the same is
forthcoming vide Endorsement vide Ex. P11.
Therefore, all the Postal Ballots have to be recounted
since the margin of victory is very less and that the
result of the election is materially affected.
114. Learned counsel for the petitioner, in support of
(v) Basangouda vs. Dr.S.B.Amarkhed and
others (1992)2 SCC 612.
115. Learned counsel for respondent No.1 has also filed
As per section 83(1)(a) of the Representation of
People Act, 1951 reads as follows -
The above section mandates that the concise
statement of the material facts that the Petitioner
relies has to be mentioned. The present Petition does
not bring forth any material facts or full particulars
as mandated as per section 83 as present to seek
relief under section 100 of the Representation of
Peoples Act, 1951. The rejection of 301 postal ballot
votes are after following the due process of law laid
down under the Representation of People Act and
Rules. The vague claim made by the Petitioner at
Para No.9 that the 301 Ballot Papers which were
rejected had to be casted in his favour is without any
material particulars and material facts to support the
said pleadings. The Petitioner has not even stated at
any instance as to how these rejected votes had to
be casted in his favor. Therefore, the failure to plead
material facts and particulars with respect to how
these 301 Ballot Papers votes should have been in
his favour is fatal and the relief claimed by the
present Election Petition by the Petitioner on this
aspect is per se without any basis and factual
assertions and is only cryptic and vague, Therefore,
this Hon'ble Court is not entitled to grant relief for
the issues No.2. Therefore, the same has to be
answered in negative and is required to be ruled out
as against the Petitioner.
The other issue with respect to the Postal Ballot Unit
is Issue No. I wherein the Petitioner has stated that
360 Postal Ballot votes which were secured by the
Returning candidate i.e., the present Respondent
were to be rejected under 54A (8) of the Conduct of
Election Rules, 1961 that the Petitioner further aware
that they have been duly attested that as mandated
under Rule 24 of the Conduct of Election Rules,
1961. Therefore, Form 13A not having been attested
by the Gazette Officer, the said forms 360 votes in
total had to be rejected. The Petitioner except for
stating these statements in a vague manner, has not
said forth as to what are the Ballot Papers in which
this attestation is not forth coming and has not
stated as to why were they being accepted and why
they had to be rejected. The Petitioner also further
stated that the failure to follow the due process of
law more particularly 54A of the Conduct of Election
Rules, 1961 has materially affected the outcome of
the Elections under 100(1)(d)(iv). However, the
Petitioner has not stated that whether these votes
have been improperly received and had failed to
plead and set forth grounds as under section
100(1)(d)(iii) which speaks about improper reception
refusal or rejection of any vote or reception of any
vote which are void. Until and unless the Petitioners
proves that the votes which have been received by
the returned candidate are void, the Petitioner
cannot claim the following relieves under section
100(1)(d) (iv) of the Representation of Peoples Act
to say that the Returning Officer has failed to follow
the provisions the Act that except for the mere
statements made by the Petitioner there is no further
evidence to prove that the said fact nor there is
substantial material given by the Petitioner in order
to prove the said Issue No.1.
Therefore, the claim that 360 votes should have
been rejected which were casted in favour of
Respondent No.1 is nothing but a mere statement
without any material facts, material particulars,
evidence nor any statements forth coming from the
witness nor from the examination or chief
examination or the cross examination of the
Returning Officer.
Further in the Ex. P4 of the Election Petition the
Returning Officer has clearly set out the votes polled
in each of the Rounds in the 4 tables kept for postal
ballots. There the total invalid votes, the total votes
polled to NOTA, and the total rejections due to
improper declaration are set out clearly. The
Petitioner has not disputed this result of Returning
Officer. Even at the earliest point of time no claim
has been made regarding either the rejected vote of
301 members or the 360 votes of Respondent No. I
to be counted in favour of Petitioner as claimed at
para 9 of the Election Petition. All this is an
afterthought. It is not even cited that the 301 votes
were illegally rejected in the re-count application
hearing thereby that the rejections were valid.
Further how 360 votes of Respondent No. 1 were to
be counted in favour of Petitioner and in which Table
out of 4 Tables it was there, from where the
Petitioner derives such information are all not stated
and the said allegations are bereft of material
particulars.
In the case of Sathyanarain Dudhani v. Uday Kumar
Singh and others reported in, AIR 1993 SC 367 it
was held that, "the order of recount of cannot be
granted as a matter of course. Only when the court
is satisfied on the basis of material facts pleaded in
the petition and supported by the contemporaneous
evidence that the recount can be ordered".
candidate is able to allege and substantiate in
acceptable measure by means of evidence".
Therefore, the Petitioner is completely failed to
prove the Issue No.1 and No.2 and also the Election
Petition has not set forth as to how these votes have
materially affected the Elections of the Respondent
No.1. Until and unless the Petitioner is able to show
that with material facts and material particulars that
the Elections of the Respondent No.1 has been
materially affected with respect to Issue No.1 and
No.2 the Petitioner cannot claim the relief under
section 100(1)(d)(iv) that the non-compliance of the
RPA Act that the Election has been materially
affected and seek for a declaration that the Elections
of the Respondent No. 1 is required to be set aside.
Therefore, the Issue No. 1 and Issue No.2 is required
to be answered in negative and the Petition is liable
to be dismissed.
116. On issue No.3, he has submitted as under:
117. On issue No.4 it is submitted as under:
The only Polling Station in which the VVPAT unit is
not to be found in the reserved list is that Polling
Station No.39. The Petitioner claims that the votes
polled in Polling Station No.39 are void votes and
therefore, the elections of the present Election
Petition is to be set aside. It is pertinent to note that
the votes polled at Polling Station No.39 are 1000 in
total out of which 435 votes were polled in favour of
the Petitioner and 408 votes were polled in favour of
the present Respondent. Hence, the irregularities
pointed in VVPAT Units at Polling Station No.39
cannot be a ground to set aside the Present election
and the same is not materially affected as mandated
in the section 100(1)(d) of the Representation of the
People Act, 1951, It is also submitted that the
Petitioner in the cross examination has admitted that
neither he nor his polling agent has informed the
polling officer about the irregularities mentioned
above at the said polling station. In the view of the
above the Issue No.4 is required to be answered in
negative and the present Election Petition is liable to
be dismissed.
118. On Issue No. 5 it is submitted as under:
It is submitted that with respect to the Issue No. 5,
the Petitioner has contended that there are
irregularities in the Control Units used in polling
station No.81 and 72 in No. 78 Kumta Assembly
Constituency, Karnataka Legislative Assembly. It is
further submitted that these contentions lacks merit
as it is evident from the materials placed by the
Petitioner himself that the above mentioned Polling
Stations the Control Units were replaced and the
replacement list is available at page No. 116 at
ANNEXURE-V as it could be seen that, all the
replaced units were in the reserved list at EXIBHIT
P20. Hence, the irregularities pointed in Control Units
at Polling Station No.81 and 72 cannot be a ground
to set aside the Present election and the same is not
materially affected as mandated in the section
100(1)(d) of the Representation of the People Act,
1951.It is also submitted that the Petitioner in the
cross examination has admitted the same. In the
view of the above the Issue No. 5 is required to be
answered in negative and the present Election
Petition is liable to be dismissed.
119. On Issue No. 6 is submitted as under:
It is submitted that with respect to the Issue No. 6,
the Petitioner has contended that there are
irregularities in the Ballot Units used in polling
station No.81 and 72 in No. 78 Kumta Assembly
Constituency, Karnataka Legislative Assembly. It is
further submitted that these contentions lacks merit
as it is evident from the materials placed by the
Petitioner himself that the above mentioned Polling
Stations the Ballot Units were replaced and the
replacement list is available at page No. 118 at
ANNEXURE-W as it could be seen that, all the
replaced units were in the reserved list at EXIBHIT-
P21. Hence, the irregularities pointed in Ballot Units
at Polling Station No.81 and 72 cannot be a ground
to set aside the Present election and the same is not
materially affected as mandated in the section
100(1)(d) of the Representation of the People Act,
1951. It is also submitted that the Petitioner in the
cross examination has admitted the same. In the
view of the above the Issue No. 6 is required to be
answered in negative and the present Election
Petition is liable to be dismissed.
It is submitted that the above-mentioned allegations
have been pointed out by the petitioner on the
ground that the provisions of the RP Act have not
been complied. However, the very essential as to
how the same has been materially affected the
results of the elections. It is also not the case of the
Petitioner that the irregularities alleged to have been
committed by the Returning Officer was done at the
behest of the present Respondent and in order to
assist the victory of the present Respondent. The
Petitioner has failed to set out material facts and
particulars in this regard as mandated in Section 83
of the RP Act and has only made bald allegations and
has asserted that the elections are required to be set
aside with respect to the irregularities pointed out.
The Petitioner has miserably failed to establish and
prove the elections of the present Respondent/
Returned Candidate has been materially affected and
is required to be set-aside.
In the case Election Commission of India v. Ashok
Kumar and Others of reported in, 2000 SCC Online
SC 1234 it was held that "Sub-clause (iv) of clause
(d) of Sub-section (1) of Section 100 is a 'residual
catch-all clause, Whenever there has been non-
compliance with the provisions of the Constitution or
of the Representation of the People Act, 1951 or of
any Rules or Orders made thereunder if not
specifically covered by any other proceeding clause
or sub-clause of the section it shall be covered by
sub-clause (iv). The result of the election insofar as it
concerns a returned candidate shall be set aside for
any such non-compliance as the above-said subject
to such non-compliance, also satisfying the
requirement of the result of the election having been
shown to have been materially affected insofar as a
returned candidate is concerned"
The above principle is also reiterated in the cases of
UMA BALLAV RATH V MAHESHWAR MOHANTY
reported in (1999) 3 SCC 357, KAMTA PRASAD
UPADHYAYA V. SARJOO PRASAD TIWARI reported in
(1969) 3 SCC 622, ΡΛΟΚΑΙ HAOKIP V. RISHANG
reported in 1968 SCC Online SC 281 and Hareram
Pandey v. Ajit Chaudhary reported in (1999) 8 SCC
261.
Another important ground in which the Petitioner has
failed to narrate in the present election petition is
that until and unless the votes which have been
received in favor of the present Respondent is void
due to the reasons of improper reception under
section 100(1)(d)(iii) the Petitioner cannot claim the
votes which have been received by the present
Respondent as void.
It is submitted that the irregularities which have
alleged in FORM 17C PART I were all within the
knowledge of the Petitioner and his counting agent at
the date of poling (i.e. 10/05/2023). It is further
submitted that the polling station agents of the
Petitioner were present in the polling station and
have accorded their signature in the FORM 17C
PART-1 after completion of the polling process and
had failed to raise any grievance/objections.
Therefore, the contention with respect to
irregularities alleged in FORM 17 C PART-I does not
merit consideration and therefore this present
Election petition is required to dismissed. The case
laws which have been relied by the Petitioner do not
apply to the present set of facts and therefore it is
irrelevant. It is in the case of M.R GOPALAKRISHNAN
V. THACHADY PREHKARAN AND OTHERS reported in
1995 Supp (2) SCC 101, wherein on a similar
allegation that the Postal Ballot Papers have been
wrongly rejected, it was held that "the irregularities
alleged without there being a complaint at the
relevant point of time the said irregularities is an
afterthought and not based on true facts" and the
Hon'ble Apex Court had dismissed the said appeal.
In view of the above submissions in relief of order of
recount of all votes and the order of recount of all
Ballot Papers at Prayer B and C cannot be granted as
the Petitioner is prima facie failed to set out any legal
grounds for the same. The relief at Prayer D to set
aside the election of the Respondent No.1 from
No.78 Kumta Legislative Assembly also fails as the
Petitioner has miserably failed to establish a ground
and to prove how the Elections have been materially
affected. The further relief at Prayer E to declare that
the Petitioner as the elected candidate also fails for
the fore going submissions.
The Respondent herein most humbly seeks leave of
this Hon'ble Court to raise any other additional
grounds which are not mentioned above and to
supplement the above-mentioned submissions at the
time of oral arguments. The averments made in the
Written Statement may be read as part and parcel to
the present Written Arguments.
Thus, in view of the above submissions, the
Respondent herein most humbly prays that this
Hon'ble Court be pleased to dismiss the Election
Petition in the interest of justice and equity."
120. This Court bestowed its best attention to the rival
contentions of the parties as also the oral and
documentary evidence placed on record.
121. On careful consideration of the material on record, in
the light of issues referred to supra, issue Nos.1 and 2
would be answered at the first instance.
122. REGARDING ISSUE Nos.1 AND 2: Admittedly neither
the petitioner nor his counting agent objected for the
counting of postal ballots and the result thereof in writing
to the Returning Officer. P.Ws.1 and 2 have categorically
admitted that there was no written objections with regard
to alleged illegality in counting the postal ballot papers.
Petitioner would even go to the extent of answering in
cross-examination on oath, that he does not even
remember the name of the counting agent who was
deployed for the purpose of counting the postal ballots.
123. Further, P.W.1 categorically admitted that he visted
the counting hall for the first time on the date of counting
i.e., on 13.05.2023 at about 1.00 pm. The material on
record would go to show that by that time the counting of
postal ballots was completed in toto.
124. P.W.2 confirms the said factual aspect in his
evidence that the counting of EVMs commenced only after
completion of counting of postal ballots.
125. In other words, there was a time gap of about 3 to 4
hours before the petitioner visited the counting hall at
about 1.00 pm. If the postal ballots were not properly
counted, there was no impediment for the petitioner or his
counting agents to bring it to the notice of the Returning
Officer about the discrepancy in counting the postal
ballots. Therefore, issue Nos.1 and 2 will have to be held
against the petitioner. Accordingly, issue Nos.1 and 2 are
answered against the petitioner.
126. REGARDING ISSUE Nos.3 TO 6: These issues are
taken up together for discussion in view of the fact that
they are inter linked and material evidence placed on
record are also interwoven with each other.
127. As could be seen from the submission in the written
arguments placed on record by both the parties referred to
supra, the main grievance of the petitioner is that in
respect of three polling stations bearing Nos.153, 196 and
208, EVMs used were not counted and in respect of polling
station Nos.39, 149, 81, 83, 72 and 32 of Kumta Assembly
Constituency, authorized VVPATs were not used.
128. Petitioner also contends that control units in polling
station Nos.81 and 72 have been replaced on account of
improper working and such units did not find place in the
reserve or randomization list.
129. Yet another grievance of the petitioner is that ballot
unit in Polling Station Nos.81 and 72 were also replaced
and those units did not find place in reserve or
randomization list.
130. In this regard, petitioner, apart from reiterating the
averments made in the petition in the tabular column
referred to supra, in his examination-in-chief further stated
that irregularities committed by the concerned polling
Officer resulted in improper conduct of election as is found
in Section 100(1)(d)(iii) of the Representation of People
Act, 1951. Therefore, election of the petitioner is to be
held as null and void.
131. In this regard, there is no dispute as to the
replacement of the units in three polling stations viz.,
Polling Station Nos.153, 196 and 208 wherein EVMs were
replaced.
132. Likewise, there is no dispute to the fact that VVPAT
units in polling Station Nos. 39, 149, 81, 83, 72 and 32
were replaced. Further, the control unit and ballot unit in
respect of polling station Nos.81 and 72 have also been
replaced.
133. In this regard, oral testimony of P.W.2 assumes
importance inasmuch as said witness is summoned on
behalf of the petitioner and examined on his behalf. In his
oral testimony, P.W.2 being the Returning Officer of Kumta
Constituency, specifically stated that he had procured
120% control units and ballot units. In other words, 20%
extra of those units to meet the contingency. Likewise, he
had procured 130% of VVPAT units from the Chief Election
Commissioner.
134. Admittedly, the control unit, ballot unit and VVPAT
are exclusive property of the Election Commission of India
bearing Unique Identification Numbers. In other words,
such equipments are not freely available in the open
market.
135. If that is so, the contention of the petitioner that
there is irregularity/illegality in replacing the units whereby
he did not get proper votes even though the voters have
exercised their franchise in his favour, cannot be
countenanced in law.
136. On the contrary, in the cross-examination of P.W.1,
learned counsel for the respondent No.1 was successful in
eliciting that in respect of all the polling stations which he
has complained that he has lost number of votes as
referred to supra would depict that, despite such
replacement of units, it is the petitioner who got more
votes in those polling stations as against respondent No.1
in toto.
137. In other words, when the petitioner has secured
more votes where respective units have been replaced,
should not have any grievance that because of the
replacing of respective control unit, ballot unit and VVPAT
has worked detrimental to his interest and the same
cannot be countenanced in law.
138. No doubt, when 215 polling stations are established
in Kumta Constituency and if some units have not properly
worked before the actual voting commenced, each of the
polling officers had been given the discretion to use the
reserved units which was supplied to them in the presence
of polling agents and then commenced the voting.
139. This trial process would be conducted by each polling
officer in polling stations in the presence of polling agents
before the commencement of actual voting and after
satisfaction recorded by all the polling agents who are
present at the polling stations and obtaining their
signatures on the prescribed format, election process
would commence.
140. In this regard, petitioner has admitted in his cross-
examination that he does not know the names of the
polling agents who were appointed on his behalf in respect
of the disputed polling stations. Nor, any material
evidence is placed on record on behalf of the petitioner to
hold that such of the polling agents have raised objections
in writing in respect of replacement of the respective units.
141. Yet another contingency may arise where, when the
voting process is on, any of the units may fail. Even in
such contingency, the process that is to be adopted by the
polling agent is the same procedure, i.e., he must record
that a particular unit has failed during the course of voting
and therefore, he is replacing a particular unit which is
found to be defective.
142. Even in such contingency, he must take into
confidence the polling agents of the respective candidates
and in their presence, replacing has to take place and
immediately such contingency must be brought to the
notice of the Returning Officer and after his approval, the
units must be replaced.
143. In the case on hand, such contingency has not arisen
and it is the specific case of the petitioner himself that
respective units were replaced before commencement of
voting.
144. Learned counsel for the petitioner, no doubt,
emphasized on the contents of Exs.P.22 to 27 and
vehemently contended that since respondent No.1 has
admitted the contents, case of the petitioner stands
established that there is irregularity as is contemplated
under Section 100(1)(d)(iii) of the Representation of
People Act, 1951.
145. In order to appreciate the same, it is just and
necessary for this Court to extract the said provision of law
for ready reference.
100. Grounds for declaring election to be
void.--
(1)Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a)that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the
Constitution or this Act or the Government of
Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
(i)by the improper acceptance or any
nomination, or
(ii)by any corrupt practice committed in
the interests of the returned candidate 5by
an agent other than his election agent, or
(iii)by the improper reception, refusal or
rejection of any vote or the reception of
any vote which is void, or
(iv)by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act, the High Court shall declare the
election of the returned candidate to be
void.
146. In answer to said submission, as referred to supra,
Sri Vivek Reddy, learned Senior Advocate for the
respondent No.1 contended that the replaced units viz.,
control unit, ballot unit and VVPAT, were from the reserve
list marked at Ex.P.20. Therefore, replacing of the
respective units without objection from the polling agent
did not cause any material irregularity as is mandated
under Section 100 of the Representation of People Act,
1951.
147. This Court bestowed its best attention to the
discrepancies pointed out by the petitioner and explained
by the respondent No.1.
148. On careful consideration of the discrepancies, no
doubt, discrepancy did occur on account of replacing of the
control unit, ballot unit and VVPATs.
149. P.W.2 categorically answered that the replacing of
the units is from the buffer of 20% in respect of control
unit and ballot unit, and 30% in respect of VVPATs.
150. Therefore, arguments of the petitioner that serial
number of the VVPAT in polling station Nos.39, 81 and 83
did not find place either in Exs.P.17 and 18 in
randomization or reserve list is admitted by P.W.2, since
the units were from buffer units which were procured by
the Returning Officer from the office of the Chief Election
Commissioner. As already pointed out, those units are not
freely available units in the open market so as to infer that
the polling officers only with an intention to help the
respondent No.1 have brought some other units
detrimental to the interest of the petitioner.
151. Moreover, as already pointed out supra, and as
admitted by petitioner himself in the cross-examination, in
respect of such replaced units, it is the petitioner who
stand to gain in number of votes polled as against number
of votes polled against respondent No.1 in majority of the
polling centres.
152. In this regard it is worth to note that P.W.1 in his
cross-examination categorically admitted that information
provided by the petitioner in his petition at paragraph
No.26 of the Head Note B is correct. He has answered to a
specific question that data provided in Form 17C Part I
tallied with data provided in Form 17C Part II. It is also
his admission that in booth No.29 control unit was not
properly working and by consent of counting agents, slips
stored in the VVPAT unit were taken out and they were
counted.
153. Thus, in other words, assuming that some
discrepancy with regard to serial numbers of VVPAT or
other units has taken place in some of the polling stations,
the selection of the respondent No.1 for No.78 Kumta
Legislative Assembly did not materially affect the
declaration of respondent No.1 as successful candidate in
the election.
154. Therefore, arguments put forth on behalf of the
petitioner that the irregularities have vitiated the very
selection process itself cannot be countenanced in law.
155. It is settled principles of law and requires no
emphasis that every irregularity would not be termed as
illegality. There lies a thin line of difference between
irregularity and illegality. But that thin line is subtle in
nature.
156. It is to be noted that the key difference between
illegality and irregularity is that illegality is a fundamental
violation of law, rendering an action void, while irregularity
is a procedural deviation which may or may not cause
serious prejudice which would affect the end result. An
irregularity which is fundamental in nature often amounts
to illegality wherein it goes to the very root of the matter
vitiating the very process resulting in injustice.
157. While irregularity is a minor procedural error that do
not compromise the essence or fairness of the process,
which may include clerical mistakes or minor deviations
from prescribed procedures that do not affect the end
result, illegality is a significant breach of established law
which may be in the statute or rule which would
fundamentally undermine the process. Often, illegality
includes improper administration of the statutory
provisions or violating the prescribed rule which would
result in substantial violations of the fair process.
158. In this regard, this Court gainfully places its reliance
on the judgment of the Hon'ble Apex Court in the case of
State of Karnataka and others vs. Umadevi reported in
(2006)4 SCC 1 and Pawan Kumar Tiwary and others
vs. Jharkhand State Electricity Board (Now
Jharkhand Urja Vikas Nigam Limited) and Others
reported in 2025 SCC OnLine SC 1751.
159. Therefore, the alleged irregularities or minor
discrepancies pointed out in the conduct of election
process in respect of Kumta Assembly Constituency, did
not affect the end result of the election process.
160. It is also to be noted that conduct of election in a
gigantic democracy of a country is not a child's play. It
requires lot of planning, preparation, man power and
infrastructure. While conducting such elections, Returning
Officer plays a pivotal role. In fact, it is the role of the
Returning Officer which acts as fulcrum and while
conducting the elections, human errors which are minor in
nature, mechanical errors which may also be minor in
nature may occur beyond the comprehension of the
Returning Officer. Hand Book, in built provisions in the
Rules and the Act may not adequately provide for every
such minor discrepancy.
161. Under such circumstances, such minor discrepancy
when pointed out, if not affecting the final result of the
election process must be ignored.
162. In the light of the above factual aspects, this Court
has considered the principles of law enunciated in the
decisions placed on record on behalf of the parties.
163. In the case of Dr.Kanthi Rajashekar Kidiyappa
vs. P.H.Pujar and Others reported in 2000 SCC Online
Kar 912, referred to supra, Their Lordships were
considering the effect of lapse on the part of the Returning
Officer in not following the mandatory provisions of law.
164. In the case on hand, there is no violation of
mandatory provisions of the Act and rules or the hand
book.
165. In the case of Ram Sewak Yadav vs. Hussain
Kamil Kidwai and others reported in AIR 1964 SC
1249, Their Lordships of the Hon'ble Supreme Court were
dealing with the selection of a candidate based on physical
ballot papers. The rules that were applicable for declaring
the result of physical ballot papers as against the EVM are
altogether different and therefore, even though the
principles stated in the said case cannot be disputed, same
is not applicable to the case on hand.
166. In the case of Basangouda vs. Dr.S.B.Amarkhed
and others reported in (1992)2 SCC 612, Their
Lordships while dealing with Section 100(1)(b) and (d)
were dealing with menace of booth capturing. In the case
on hand, no such contentions are urged on behalf of the
parties, nor issues framed in the case which would require
to consider of the principles stated in the said case.
167. Nextly, adverting to the case of M.Chinnasamy vs.
K.C.Palanisamy and others reported in (2004)6 SCC
341, Their Lordships of the Hon'ble Supreme Court were
dealing with the proposition of necessity of maintaining
secrecy of ballot papers at the time of recounting.
168. In the case on hand, admittedly, issue of recounting
of ballot papers is only restricted to postal ballot where
there is no written request by the petitioner or his counting
agent. Therefore, principles of law enunciated in the said
case has no application to the case on hand.
169. In the case of A.C.Jose vs. Sivan Pillai reported in
(1984)2 SCC 656, Their Lordships bestowed their
attention with regard to the manner of voting by
mechanical process. Their Lordships held that use of EVMs
inconsistent with the scheme of Representation of People
Act and conduct of election Rules are without jurisdiction
and ordered for repolling of those booths where
inconstancies were pointed out. Their Lordships also ruled
in the said decision that ballot does not mean the voting
machines under the Act and party cannot be estopped
from urging illegality on the ground of the parties failure to
raise objection at relevant point of time.
170. Learned counsel for the petitioner placing reliance on
the said judgments contended that even in the absence of
any objection in writing by the petitioner and his counting
agent, petitioner cannot be estopped from seeking for
recounting of the postal ballots.
171. In the case on hand, admittedly, the ruling in the
case of A.C.Jose is applicable to the irregularity in EVM
and not physical ballot papers. Rule mandates that
recounting of postal ballots requires a requisition in
writing.
172. Admittedly, petitioner reached the counting hall at
1.00 pm on the day of counting. By then, counting of
postal ballots had already been concluded atleast 3 to 4
hours earlier.
173. In the absence of any requisition in writing on the
counting day, petitioner cannot avail the benefit of
principles of law as is enunciated in A.C.Jose case supra.
174. Along with additional written submissions, learned
counsel for the petitioner placed reliance on the judgment
of the Hon'ble Apex Court in the case of Birad Mal
Singhvi vs. Anand Purohit reported in 1988(Supp)
SCC 604 supra.
175. In the said case, Their Lordships were not concerned
with the validity of the postal ballots or discrepancy in the
EVM or the control unit or VVPAT. Therefore, principles of
law enunciated in the said decision is not applicable to the
facts of the present case.
176. Yet another decision along with additional written
submission is the case of Jibontara Ghatowar vs.
Sarbanand Sonowal and others reported in (2003)6
SCC 452, wherein, Their Lordships ruled as to when
recounting is permissible. Their Lordships while dealing
with recounting and defect in ballot papers, held that
Returning Officer based on prima facie opinion formed in a
reasonable manner in the attendant facts may order for
recounting and not on the frivolous and unreasonable
grounds.
177. In the case on hand, in the absence of any
requisition in writing with regard to recounting, petitioner
cannot be permitted to avail the benefit of the principles
laid down in the case of Jibontara Ghatowar supra.
178. Insofar as the decisions placed on record on behalf of
the respondent No.1 is concerned, detailed discussion is
unnecessary in view of the fact that this Court is not
answering any of the issues in favour of the petitioner on
factual aspects of the matter as discussed supra.
179. In view of the foregoing discussion, issue Nos.3 to 6
are to be answered against the petitioner and accordingly
they are answered.
180. Having recorded the answers to issue Nos.1 to 6 as
referred to supra, invariable conclusion is to dismiss the
petition.
181. Hence, the following:
ORDER
(i) Petition is dismissed.
(ii) No order as to costs.
Sd/-
(V. SRISHANANDA)
JUDGE
kcm
