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PETITIONER: AKHAND PRATAP SINGH YADAV

       Vs.

RESPONDENT: KUNWAR SURENDRA PRATAP SINGH &24 ORS.

DATE OF JUDGMENT:       10/01/1996

BENCH: J.S. VERMA, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. VENKATASWAMI, J.      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.

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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

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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.