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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