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Chandra Reddi, J.—In this application a declaration is sought that the election of all the respondents as members of the Andhra Bar Council is null and void. The applicant was one of the candidates for the elections to the Andhra Bar Council that were held on 6-1-1955. Thirty-four members of the Bar contested the elections of whom the ten respondents were declared duly elected, the applicant securing only the 24th rank.
He challenges the election of the respondents on two grounds: (1) that a large number of voters did not exercise their franchise in favour of the candidate or candidates for whom they desired to vote but parted with their voting papers in blank either wholly or in part along with their declaration forms into the hands of candidates who used the voting papers for "exchanging and cashing"; (2) the nomination papers of the respondents except of the two successful candidates M/s N. Subrahmanyam and P. Sundara Rao are invalid as they were not addressed to the secretary of the Bar Council as required by the Rules.
All the respondents filed counters denying the allegations in the letter of the applicant.
At the hearing of the application, a preliminary objection was raised that one application for setting aside the election of the respondents was not maintainable and the application should, therefore, be dismissed ''in limine''. To appreciate this contention, it is necessary to set out the relevant provisions of the Andhra Bar Council Rules. Rule 21 provides:
A candidate may contest the validity of the election of a candidate declared to have been elected to the Bar Council by a letter signed by him and addressed to the Secretary. Such letter shall state the grounds upon which the validity of such election is contested and shall be delivered to the Secretary within seven days of the date of the publication in the Andhra Gazette, of the list` required by R. 20 to be so published, and after the expiry of seven days from the date of such publication, the validity of the election shall not be challenged by a candidate on any ground whatever.
It is argued that the expression "election of a candidate" is significant and shows that the rule contemplates that separate petitions should be filed for setting aside the election of each successful candidate. Otherwise, if an omnibus petition of this kind were permitted it would lead to confusion. The ground of challenge must be brought home to each one of them and vague and general allegations impugning the election as a whole would not satisfy the requirements, the language of the rule being consistent only with the construction that the election of one candidate alone could be questioned in one application.
We feel there is some substance in this contention. The principle underlying this rule seems to us to be that a petitioner disputing the validity of election should indicate the grounds upon which the election of a candidate is contested. The factors that may invalidate the election of one candidate may not govern the election of another candidate. We cannot agree with the argument that in one application the election of all candidates held on a particular day could he impeached and that if the election of one has to be avoided it should apply to all.
The ruling of the Calcutta High Court in Rathis Chandra Munshi and Another Vs. Amulya Charan Ghatak, has little bearing in this context However, that need not lead to the result of dismissal of the petition. An application may be treated as ten applications and the allegations therein regarded as applying individually to the respondents. This principle is illustrated by '' Seeni Madar Sahib Vs. Abdur Rahman Sahib and Another, and ''In re: Udharam Pahlajrai'', AIR 1936 Sind 75 (SB) (C).
But the case of each of the respondents has to be considered separately. We may also notice in this connection what Sri Roger says in his book on Election at page 174, Vol. 2, Edn. 20:
Two or more candidates may be made respondents to the same petition, and their case may for the sake of convenience be tried at the same time, but for all other purposes it is deemed to be a separate petition against each respondent.
Before we discuss the evidence adduced by the applicant in support of the averments in his letter, it is convenient to refer to some of the decisions dealing with election petitions. We may first cite the oft-quoted case of ''Woodward v. Sarsons'', (1875) 10 CP 733 (D). There the election for the office of a town councillor for one of the wards of Birmingham was held in November 3S74. At that election, there were only two candidates Woodward and Sarsons.
At polling stations 130, the presiding Officer marked on the face of the ballot paper given to each of the voters the number on the burgess roll. The number of ballot papers so marked and given out were 294 of which 234 were given in favour of Woodward and 60 in favour of the other Candidate. The numbers could have been seen by the persons present at the counting of the ballot papers.
At polling station No. 125, 20 ballot papers were marked by the Presiding Officer as desired by the voters who are illiterate. These papers were placed by the Presiding Officers in the ballot box wrapped up in the declaration of inability to read, made by these illiterate voters. These votes could have been identified by the Returning Officers at the counting of votes. In addition, 22 papers were marked in a manner to which objection could be taken.
The Returning Officer rejected all the ballot papers used at polling station No. 130, but counted, received as valid the 20 ballot papers at polling station 125, and the other 22 ballot papers as to the validity of which objection was taken. As a result of the counting it was found that Sarsons obtained 965 votes as against his rival Woodward 775 and the former was declared duly elected to the vacant office. The unsuccessful candidate Woodward presented a petition to set aside the election and a case was stated for the opinion of the Court.
The election was challenged on the ground that it was not conducted in accordance with the Ballot Act because some of the rules in the schedules to the Act or principles laid down in the body of the Act were not observed and the noncompliance therewith had affected the result of the election. It was also contended that it was not necessary to the petitioner to show that on the scrutiny of the votes the respondent would be in a minority and he would succeed if it could be established that a large body of electors that voted at polling station No. 130 were or virtually had been disenfranchised. None of these contentions prevailed with the Court. The rules and principles said to have been violated were these:
Section 2 of the Ballot Act enacted that "the voter, having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in an enclosed box." By Rule 25
the elector on receiving the ballot papers, shall forthwith proceed into one of the compartments in the polling station, and ''there mark his paper'' and fold it up so as to conceal his vote, and shall then put his ballot paper so folded up into the ballot box By Section 2,
any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything except the said number on the back is ''written, or marked by which the voter can be identified'', shall be void, and not counted.
Construing these and other relevant provisions of the Act, the learned Judges decided that an election could be declared void only if the tribunal was satisfied that there was no real electing at all i.e., the majority of the electors were prevented from recording their votes effectively according to their wishes for some reasons or other and that the election was not really conducted under the subsisting election law.
It was further observed with regard to the first ground that the same result should follow if by reason of any such or similar mishaps the tribunal should be convinced that there was reasonable ground to believe that majority of the electors might have been prevented the candidate they wanted even if it could not be said that as a fact a majority had been prevented. But if it was not satisfied that either of the two mentioned above existed, the existence of such mishaps would not entitle the tribunal, to declare the election void.
The non-observance of the statutory requirements in order to result in the invalidity of the election should be so great as to satisfy the tribunal that the election was conducted contrary to the principles of election by ballot and irregularities complained of did affect or modify the result of the election. It was also pointed out that the provisions of the Act which were absolute such as relating to secrecy or to any writing or mark which would lead to the voter being identified should be obeyed.
But substantial compliance with directory provisions was sufficient. In this view, the ballot papers marked by the Presiding Officer at polling station No. 130 were void. As regards the 20 ballot papers at polling station 125 it was said that they were properly counted despite a breach by the Presiding Officer of one of the directions because there was no enactment which provided for rejection of papers on account of such breach.
Dealing with the contention that a breach of the Ballot Act as such was a ground for avoiding the election it was observed as follows:
It is said that S. 13, though it is in a negative form, assumes as an affirmative proposition that a non-compliance with the rules, or any mistake in the use of the forms, would render an election invalid, unless it appeared that the election was conducted in accordance with the principles laid down in the body of the Act and that such non-compliance or mistake did not affect the result of the election.
If this proposition be closely examined, it will be found to be equivalent to this that the non-observance of the rules or forms which is to render the election invalid must be so great as to amount to a conducting of that election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or, in other words, the result of the election.
The conceptions underlying this case have been accepted as sound subsequently by Courts in England. In "Rogers on Elections" Vol. II, Edn. 20, several passages embodying the principles above stated have been extracted. The case has been referred to with approval in some of the pronouncements of the Supreme Court of our country.
We will now turn to some of the pronouncements of the Indian Courts. In - ''Ramanjulu Naidu v. Parthasarathi Aiyengar'', AIR 1915 Mad 841 (2) (E) a Bench of the Madras High Court expressed the opinion that irregularities not amounting to fraud, however, grave would not vitiate an election if they are not shown to have affected the result of the elections. The law relating to elections and election contests has been stated in clear terms, if we may say so with respect, by the Supreme Court in Jagan Nath Vs. Jaswant Singh and Others,
It was stated there that these rights are not common law rights but are created by statute and that the statutory requirements should be exactly observed. However, this would not apply if the statute itself confers authority on a tribunal to adopt a particular procedure but does not state the consequences of non-compliance with such requirement. The principle was also laid down that the success of a candidate who had won at an election should not be lightly interfered with and a petition for setting aside the election should strictly conform to the requirements of law.
In cases, where the election law did not prescribe the consequences of non-compliance with the procedural requirements of the law, the jurisdiction of the tribunal entrusted with the trial of the case was not affected. The proposition that the rights litigated in election proceedings are not common law rights, but owe their existence to statutes and the extent of those rights must be decided with reference to them is also borne out from another judgment of the Supreme Court in - ''Dinabandhu v. Jadumoni'', AIR 1954 SC 411 (G).
In - T.C. Basappa Vs. T. Nagappa and Another, a petition was filed for a declaration that the election of a successful candidate was void for the reasons that he was guilty of corrupt practices and also there was an irregularity in commencing polling at one of the centers half an hour later than the due time which materially affected the result because many people came at the proper time and returned without voting and they might have voted for the petitioner.
Dealing with the second ground Mukherjea J. (as he then was) who delivered the opinion of the Court states thus (at page 446):
There was evidence undoubtedly to show that some of the voters went away as the polling did not commence at the scheduled time; but the exact number of these persons is not known and there could not be any positive evidence to show as to how many of them would have voted for the appellant. If the Tribunal had on the basis of these facts alone declared the appellant to be the duly elected candidate holding that he could have secured more votes than respondent 1, obviously this would have been an error apparent on the face of the record, as such conclusion would rest merely on a surmise and nothing else".
It follows from this passage that an election tribunal should not act on surmises, but its conclusion should rest on positive evidence. The recent pronouncement of the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, which considered the scope of an enquiry under S. 2(c) of the Representation of the People Act is also of great help in this enquiry. It has been laid down by their Lordships that two conditions should be satisfied to succeed in an election petition:
(1) There was an improper reception or refusal of a vote or a reception of an invalid vote or non-compliance with the statutory requirements or the rules made thereunder relating to the election or any mistake in the use of the prescribed form;
(2) As a consequence thereof, the result of the election has been materially affected.
It also appears that the onus of proving the existence of both the conditions lies on the applicant.
The propositions that emerge as a result of authorities are these:
(i) The statutory requirements which are mandatory should be strictly obeyed, but if they are directory, substantial compliance therewith is sufficient.
(ii) Transgression of statutory requirements or rules made there under relating to elections would not vitiate the election if the result of the election is not affected thereby unless there is penal clause.
(iii) Success of a candidate at an election should not be lightly interfered with.
(iv) The burden of proving the grounds of attack against the election of a successful candidate is on the applicant seeking to set aside the election.
(v) The rights relating to election matters are not common law rights but are creatures of statute and the extent of these rights will have to be determined with reference to the statute.
(vi) The conclusion of an election tribunal should not be on surmises but should be reached on definite and positive evidence.
Bearing these principles in mind, we have to scan the evidence adduced foe the petitioner against each of the respondents under two heads; (1) collection of blank papers; (2) exchange of votes.
Under the first head, the evidence of the petitioner is to the following effect: One Balakoteswararao (P-W. 8) told him that the latter went to Sri Malakondareddy''s (R-2''s) house and that Malakonda Reddy told him that he had given away his voting paper to Basivireddy, to be acted upon. Later. Sri Basivireddy admitted having about 70 ballot papers from Sri Malkondareddy. At about the same time, one Sambayya a clerk of Sri Shankararao (R-6) went to him with a number of ballot papers and asked him if he was in possession of some ballot papers for exchange.
On the evening of 3-1-1955, the petitioner happened to go to the house of one Sri Nori Sitarama Sastry, Agent of Sri Neti Subrahmanyam (R-3) and was having a talk with him. Sri. K. Venkataratnam (R-9) and another Sri Srinivasarao an advocate went there and Sri Venkataratnam (R-9) and Sri Srinivasarao were carrying ballot papers. He asked them whether it was proper for them to do like that and they said that others also were doing likewise and they would get the applicant returned if he so wanted.
This offer was declined by the applicant. The next day he met Sri Shankararao (R-6) in the premises of the Bar Association and when questioned about it the latter said "we are doing it" If you can do it, go into the woods".
As regards Sri Malakondareddy (R-2) what Sri Balakoteswararao told the applicant would be admissible against Sri Malakondareddy (R-2) only to the extent he is corroborated by Sri Balakoteswararao. That amounts only to this that open ballot papers aggregating to about 70 came into the possession of Sri Malakondareddy. No attempt was made to establish the relationship between Basivireddy and Malakondareddy.
To a question put by one of us to the applicant as to the relationship between Sri Basivireddy and Sri Malakondareddy, there was no answer; on the other hand, he merely said:
Malakondareddy gave Basivireddy 70 ballot papers for the purpose of exchange with other candidates. Other candidates also brought to him several papers in all; he had 200 to 300 papers.
P.W. 4, a nephew of the applicant said that he went to the house of Sri Nori Sitaramasastry and saw on his table blank voting papers. At that time, Mr. Sastry was not there, but his clerk who was there pointed to the witness a pile of papers lying on the table. But, in cross-examination, he admitted it was only his inference that they should be ballot papers. P.W. 7 who was another unsuccessful candidate and a close relation of the applicant deposed that Mr. Venkataratnam went to him on 1st or 2nd of January with a file containing ballot papers.
The evidence of Sri Balakoteswararao is that he went to Sri Malakondareddy who, he heard, had collected ballot papers from Nellore, to know the number of votes he had secured therein. He was given to understand by Sri Malakondareddy that the papers were with Sri Basivireddy and he could get the information from the latter. The next day the witness and Basivireddy went to Malakondareddy''s house who looked into the papers and told the witness that he had 6 or 7 votes.
The witness protested to Sri Malakondareddy against the collection of ballot papers but Malakondareddy stated that there was nothing illegal or immoral about it. He also saw in the course of the elections the clerk of Sri Shankararao having an open bag with ballot papers. When asked, the clerk said that they were the ballot papers of Sri Shankararao, but the witness admitted he did not open the bag (which means he did not see the ballot papers).
In fact, he stated in cross-examination that he did not know anything personally about them. Some time later, he went to the house of Sri Venkataratnam where he met Sri Shankararao.
P.W. 9, Sri Vishnurao who was another defeated candidate stated that Sri P. Ramachandrarao (R-1) and Sri Shankararao (R-6) went to his house one day and they inquired whether there were any ballot papers with him. We may state here that the alleged statements of Sambamurthy the clerk of Sri Shankararao (R-6) could not be used as evidence against Sri Shankararao (R-6).
Thus, there is very little evidence that any of the candidates had collected blank voting papers. Most of the witnesses had merely Inferred that they were blank papers. Much less have we any definite evidence as to the exact number of such papers. It should not be lightly assumed that a large number of ballot papers in blank were parted with by the voters in an enlightened constituency like the present.
Support is sought for the theory of collection of blank papers & also of exchange in the nature of cross-marks found against the names of several candidates from what Learned Counsel describes as intrinsic evidence provided by the ballot papers. It is suggested that the cross marks against the names of most of the candidates in the same ballot papers do not look alike in several cases and for that reason an inference should be drawn that the voter himself did not vote and he must have given it to one or other of the candidates.
There is a fallacy in this argument. If, as suggested, a blank voting paper was given to a particular candidate and that candidate exercised the franchise by marking for a number of candidates there should be no dissimilarity between one mark and another in the same ballot paper. This circumstance, therefore, cannot lend any colour to that theory.
Another ground urged was that there was a similarity of cross-marks found against the name of a particular candidate in different ballot papers which indicates that one hand must have put all these cross-marks and this was the case with regard to most of the respondents.
As regards the second argument, it may be that in a few ballot papers there was some similarity of cross-marks between one paper and another in regard to several of the candidates, but a comparison of the cross-marks does not furnish a safe criterion in this respect. It is difficult to postulate that the crosses against various names in one voting paper represent different patterns.
There is nothing on record to show that the voters put the cross-marks against all the candidates at a given time. No positive conclusion could be reached from what looks like dissimilar marks that different hands made different crosses on the same paper or the same hand put the marks against the name of a particular individual In a number of ballot papers.
Mr. Ramachandraiah urged that in such circumstances it is difficult to adduce definite evidence and we could draw adverse inference against the successful candidates from the probabilities and circumstances. The foundation for this argument is a passage in - "Rogers On Elections" 2nd Vol. 20th Edn. - page 167:
If, on the other hand, the transgressions of the law by the officials being admitted, the Court sees that the effect of transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether these transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to election, the Court is then bound to declare the election void.
We do not think that this statement of law has any application to the instant case. None of the conditions essential to attract the rule stated therein has been established in the case. For one thing, there is no material placed before us which probabilises the collection of the blank papers, nor are there any circumstances which could give rise to any inference against the successful candidate in this behalf. It may at the utmost raise some suspicion and suspicion however strong could not take the place of proof.
An election could not be set aside on such slender grounds. This is what In re, a Pleader, Bellary In Re: A Pleader, relied on for the applicant illustrates.,
It is alternatively contended that the collection of ballot papers by the candidates had violated Rr. 16 and 17 of the Andhra Bar Council Rules thereby rendering the election invalid.
Rule 16 recites:
All voting papers when filled in shall be deposited in the box kept in the Bar Council Office for the purpose or sent by registered post (each envelop containing only one voting paper to be sent by registered post individually) to the Secretary in the envelope addressed to the Secretary referred to in rule 14 so as to reach him on or before 3 p.m. of the day of election. Any voting paper delivered thereafter shall be rejected.
What is argued is that as either the deposit of the ballot paper or sending it by registered post must be done by the voter himself, the handing over of the papers was a breach of this rule. We think this argument lacks substance. It would be reading a prohibition into the rule which is not there. In our opinion, there is no warrant for the proposition that the voter should personally deposit the voting paper into the box and that he could not delegate it to anybody.
As we have already pointed out, the rights and liabilities in regard to election matters are to be looked for within the four corners of the statute and there can be no extension of either of them. There is no such a thing as common law rights in India in regard to these matters. We do not think this contention merits any further consideration.
We will now see whether there has been any deviation from R. 17. Rule 17 states:
17 (1) A voter shall vote by placing a cross against the name of the candidate for whom he desires to vote. He shall not place a cross against more names than the number of members to be elected
It is argued that this rule requires that the voter himself should vote by placing a cross against the name of the candidate for whom he desires to vote and since it has been shown that blank papers were collected by the candidates and voted for themselves, there is a clear breach of rule and consequently all those votes should be disallowed. It is added that even if the collection was not of blank papers but of open ones only, still that was a violation of the rule as the secrecy required of an election could not be maintained.
With regard to the first branch of the argument, it was contended for the respondents that the absence of the word "himself" is significant and that the voter was not prevented from delegating'' that right. For this position, reliance was placed on the two following passages in ''Maxwell on Interpretation of Statutes'', Edn. 9 at page 77:
A statute which requires something to be done by a person would, except in cases subject to the principle that "Delegatus non potest delegare'', be complied with, in general, if the thing were done by another on his behalf and by his authority for it would be presumed that there was no intention to prevent the application of the general principle of law that in either the language or the object of the statute which showed that a personal act was intended.
At page 79:
Again, where the statute required that the act should be done by the party ''himself it would hardly admit of its being done by an agent, as in the case of the provision that a nomination paper of a candidate for municipal office should be delivered to the town clerk by the candidate himself, or his proposer or seconder. A statute which provides that a person, not a party to an election petition, who is charged with corrupt practices, shall have an opportunity of being heard "by himself" and of calling witnesses does not authorise his appearing by counsel or solicitor. The same principle applies where an act requires a special qualification for doing anything.
Support for this position was also sought by Mr. Ranganatham Chetty appearing for one of the respondents from Re: ''Lancaster'' (1877) 5 Ch D 911 (K). In that case a creditor made an affidavit of proof of his debt and also a form of proxy leaving, however, the name of the person who was to use it in blank. The affidavit and the proxy were left with the solicitor so that the latter might use at a meeting of the creditors in case of necessity. A question arose whether the solicitor had authority to fill up the proxy in his own name before he used the proxy.
Bacon C. J. took the view that the omission to put in the name of the person who was authorised to act as a proxy would render the instrument of proxy imperfect and if some name was inserted in the proxy by the person to whom it was handed over it was of no value, no utility, and no force. The appellate Court consisting of James L. J. and three other Law Lords dissented from this view.
In their opinion, the proxy form was quite sufficient and that conferred authority upon the solicitor to fill up the blank with his own name as the proxy and the later had full authority to write in his own name and when this was done the proxy became a valid proxy.
We do not think this ruling furnishes any analogy. For one thing, rules that fell to be construed there contained a provision for voting by proxy. The only question for decision was whether the share-holder had himself to name his nominee or leave it to another person signing the form in blank. Further, that concerned rights between individuals ''inter se'' whereas the elections to public bodies affect the public and the voter is expected to exercise his judgment. When Advocates are given the right to elect their representatives to the Bar Council it is extremely doubtful whether he could delegate it to some one else.
At the same time, we are inclined to think that the voter is not precluded from asking some one to put a cross against the name of a person to whom he wished to vote. By this, the voter is exercising his volition and in effect exercising the franchise himself and the other person merely carries out his wish in particular circumstances. Supposing on account of some disability, a voter is unable to make a cross against a candidate of his preference.
In such a situation, he would, in our opinion, be entitled to take the help of some one in whom he has got confidence to cast the vote in favour of a person of his choice. To hold otherwise would be to disfranchise him. Even if the primary intention is that the voter himself must vote, the ballot paper in which the cross-marks are made by another person in accordance with the voter''s wishes would not be invalidated as no penalty has been provided for the infringement of the rule.
The principle of - Raghu Nath Sarma Daloi and Dhaneswar Sarma Barduari and Others Vs. Jiban Chandar Sarma, is in accordance with this view. There the learned Judges expressed the opinion that an election to the headship of a temple in which persons whose names had not been previously placed on the register of voters had participated in the election was not void because there was no provision in the scheme for the management of the institution to that effect.
However, it is not necessary for us to express a final opinion upon this matter because even on the assumption that such a procedure is not permissible, only ''one vote has to'' be deducted from those obtained by respondent 1.
As regards the ground of secrecy, namely, R. 17 insists upon the voter maintaining secrecy, we cannot read a prohibition into the rule not warranted by it. The voter should only conform to the procedure prescribed by that rule which indicates the mode or the manner of voting in exercising his franchise. Since secrecy is not one of the requirements, there is no infringement of the rule if either the vote is marked in the presence of some one or an open ballot paper is delivered to the candidate.
We should not import notions of secrecy into an election when there is no provision in that regard. We have nothing like common law in our country which requires the exercise of the franchise in secrecy and the common law of England relating to election should not be applied to regulate the elections in this country. In this connection, we may notice a ruling of the Madras High Court in Makam Chandrayudu Vs. Madasu Pedda Rangappa, .
Phillips J. ruled that when there was no provision in the Municipal election rules insisting on the withdrawal of candidates or their agents when a ballot paper of an illiterate voter was being marked by a polling officer, the marking of the officer in the presence of the candidate or his agent would not violate any of the rules. No doubt, as far as possible, secrecy should be preserved, but that is not the same thing as saying that the non-observance of it would result in the rejection of the ballot paper.
Then coming to the case "of cashing and exchanging", we will first refer to the evidence of the petitioner against respondent 9 (Venkataratnam). According to him, on 29-12-1954, respondent 9 met him at the Bezwada station platform and asked him how many ballot papers not crossed he was bringing with him. When he replied that he did not collect anything, the former remarked "then your chances in the election are absolutely nil. If you go to Guntur in time to collect ballot papers of some of your friends you will be multiplying voters".
Some time hence, the same person told him that there were some voters who were prepared to vote for the applicant and he could secure 20 or 25 if he should approach the voters but he declined to do so. The other witnesses who spoke about this respondent on this aspect of the matter are P. Ws. 3 and 7. P.W. 3 testified to his having seen a blank ballot paper with his friend Mr. Venkataratnam and when asked for the declaration form he said "you will excuse me" and requested him not to press the matter further and Mr. Ramachandriah suggested that the particular ballot paper might be after all that of Venkataratnam himself.
P. W. 7 deposed that Sri Venkataratnam went to him on the 1st or 2nd of January with a file containing ballot papers with some papers for the purpose of exchange and enquired whether he had got any blank papers for the purpose of exchange. The witness said that he detested that practice and so the respondent went away. So far as the applicant''s evidence is concerned, it does not prove that this respondent had any idea of exchanging votes with the applicant.
It was merely an advice to him to collect some papers and multiply votes if possible that may not be a wholesome advice much less does it amount to actual exchange of votes. P.W. 3 has not said anything against him which is of a damaging character. Even the evidence of P.W 7 does not establish the factum of exchange. It only shows that respondent 9 desired to have the exchange.
As regards Mr. Neti Subrahmanyam (respondent 3) this is what the petitioner stated: On 2-1-1955 he went to the house of Mr. Somayajulu brother of respondent 3. The respondent "Was not there. He then had a discussion with Somayajulu who said that "No doubt, it is being done. You cannot blame my brother for it. Because others are doing it my brother is also doing it.
Respondent 3 meanwhile came in and when interrogated he said that he was doing it because he was compelled to do it and the applicant chastised him for doing it as in his opinion it was an. improper thing. In our opinion, the expression ''it can only refer, in the context, to the collection of ballot papers; at any rate, it is equivocal.
The applicant is contradicted in this respect by Somayajulu, but it is not necessary for us to consider which version is true. P. W. 4 spoke to his going to the house of one Nori Seetaramasastry and his being informed by a clerk of his that ballot papers were available for exchange and pointed to him a pile of ballot papers lying on the table. Surely, this is not evidence against respondent 3.
There is also the significant admission that It was only from the external appearance that he inferred that they were ballot papers. Even otherwise, that is not proof of actual exchange.
As regards Malakondareddy (respondent 2) we have already referred to the evidence of the petitioner. The witness has not stated that this respondent had exchanged votes with any one, excepting his hearsay evidence that Balakoteswararao told him that about 75 ballot papers were given to Basivireddy for being acted upon and Basivireddy is alleged to have admitted that in the presence of P. W. 6 blank papers were collected.
As regards the first part, Mr. Balakoteswararao has not supported the applicant and in regard to the second it does not amount to exchange. It may be mentioned that the applicant did not meet Malkondareddy at any time. There is therefore no proof of this respondent having exchanged any votes.
Now coming to Sri Shankararao (respondent 6) the applicant as P. W. 2 has stated in this behalf that respondent 6 had admitted that he made a modest number of 150 votes in this way. P. W. 8 deposed that this respondent approached him for exchanging votes and when the witness replied that he did not collect any papers for exchange the respondent felt sorry for him.
Assuming the testimony of the applicant regarding the admission of the respondent is true and without pausing to consider how many of these 150 votes should be rejected, we do not think it makes any material difference so far as the election of this candidate is concerned. Even if all the 150 votes are disallowed, he would still have 636 good votes and that is much more than what the last of the successful candidates had obtained.
All that P. W. 9 stated about this respondent was that one day the latter asked him whether there was any blank ballot papers with him. There was no further conversation about this matter between them.
39 P. W. 7 sought to impeach the election of Sundararao (respondent 7) by saying that when he went to Vijayawada to canvass for votes for himself some of the voters told him that they had already parted with their ballot papers in favour of this respondent. This evidence even if true, does not lead to anything. It may very well be that the voters wanted to get rid of this witness by putting forward that excuse. That apart, it does not show that either blank or open ballot papers were given to this respondent. Much less does it indicate any exchange.
An attempt was made in the course of arguments to show that one Srinivasarao was collecting blank ballot papers on behalf of Sri K. Suryanarayana (respondent 5) but this was a futile one as none had stated that Srinivasarao was an agent of Suryanarayana or had anything to do with him. Therefore the election of this respondent cannot be impugned.
Now, coming to respondent 1, the only evidence against him is that of P. W. 9. The witness had testified to this respondent asking him whether he had collected any ballot papers and on replying that only two papers had come into his possession he wanted to know whether they could be exchanged, but the witness rejoined that there was nothing like exchanging and gave him votes in the two papers one of which was his own without his getting any benefit in return.
We do not feel that this is a case of exchange. Granting that the marking of votes for this respondent by P. W. 9 was unauthorised and therefore that vote was rendered invalid, that would not make any differences so far as his election is concerned. He had secured the largest number of votes, namely, 1611 and exclusion of this one vote would not result in materially affecting the election of this respondent.
It was next urged that in order to set aside the election of these respondents the court need not embark upon an inquiry to ascertain the number of invalid votes. If, it is doubtful whether the candidates have been elected by majority of voters or not such an election should be declared void. This proposition is sought to be substantiated by reference to a passage in "Rogers on Election" Vol. II, Edn. 20 at page 166 which itself was extracted from the judgment, and already referred to above in (1875) 10 CP 733 (D)'':
And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of electors may have been prevented from electing the candidate they preferred.
We fail to see how the above statement has any bearing in the context of this case because there is no reasonable ground to believe that the majority were either prevented from voting or that the majority of votes were invalid ones. On the other hand, the sentence following the one quoted above will have some bearing:
But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament.
Here mishaps, if any, were very few and they would not render the election void.
Another argument put forward by Mr. Ramacbandriah was that there was sufficient material to indicate that 400 to 500 blank ballot papers were procured by the successful candidates for purposes of exchanging and if they are taken away from the votes obtained by each of the successful candidates most of them would have been defeated. We are unable to appreciate this argument.
Firstly, there is no evidence that 400 to 500 open ballot papers have been collected by any or all the respondents or that they were open ballot papers much less blank ones and therefore no question of deducting 400 to 500 votes would arise. Nor can we accede to the proposition that merely because some of the ballot papers in the possession of one candidate have to be invalidated the votes of other candidates also should be invalid votes to that extent.
The other successful candidates might not have received any vote in those ballot papers. There is therefore no force in this argument either.
It was next urged by Mr. Ramachandraiah that a very exacting standard of proof should not. be required in election petitions as it is difficult to prove with best evidence the averments in a petition. On the other hand, it was contended for the respondents that standard of proof'' required in regard to election cases is the same as in criminal cases and reliance is placed on Rules of Election Tribunals in Jagat Narain''s "Indian Election Petitions" Vol. 2, page 85 at p. 88.
It is unnecessary for us to solve the problem as, even on the basis that the standard of proof need not be so strict as in criminal cases, the evidence here falls far short of that required even in civil cases. The utmost that could be said is that there is room for suspicion that some blank ballot papers were collected. Even at the risk of repetition, we should state that a decision in an election case can be given only on positive and affirmative evidence and not on mere surmises and suspicions however strong they are.
Lastly, Mr. Ramchandriah submitted inasmuch as election offences were committed by some of the respondents, the election of all the candidates should be set aside irrespective of whether corrupt practices have materially affected the result or not and invoked S. 171-D, Penal Code the punishment section being 171-F. The argument of Mr. Ramachandriah is that when, the voter himself did not put the cross-mark against the name of any of the candidates but permitted the candidates or their agents to do it, it would fall within the mischief of S. 171-D, I. P. C. In our opinion, S. 171-D would be inapplicable to such cases assuming it to be true The section is in these words:
Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name and whoever abets, procures or attempts to procure the voting by any person in any such way. commits the offence of personation at an election.
The essence of the offence of false personation is the offender pretending to be other than what he really is. The gist of the offence being false personation, the section does not come into play when the candidate or his agent does not claim to be the voter himself when he makes a cross against any name (even on the footing that any candidates did things attributed to him.) In this situation, the pronouncement of their Lordships of the Supreme Court in - Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, , that the election of a candidate becomes void if any corrupt practice is committed by him and it is unnecessary to prove that the result of the election is materially affected thereby, has no application to the instant case.
In the view we have taken of the matter, we feel it unnecessary to pronounce on the submission of Mr. Chinnappa Reddy the Learned Counsel for respondents 2, 5. 7, 8 and 10 that the election in this case cannot be set aside as the grounds on which an election petition should be founded are not stated in any of the rules framed under S. 6, Bar Councils Act. This argument is based upon a statement of law found in "Roger on Elections" Vol. II, Edn. 20 at page 1S6 which is culled out from - ''Woodward v. Sarsons'', (D).
As a general rule, it may be said that to whatever extent the provisions of an Act of Parliament are violated, even wilfully, which does not enact that the consequences of those acts, avoid the election, the election will not be invalidated.
There remains the question whether the successful candidates were validly nominated. This ground of attack is put thus in the petition:
The nomination papers of all such successful candidates save those of Messers. N. Subrahmanyam and P. Sundararao are invalid as they are not addressed to the Secretary to the Bar Council as required by the rules.
According to the applicant the procedure prescribed has not been followed by the successful candidates other than the two mentioned above and this has vitiated the election. Rule 6 of the Andhra Bar Council Rules enacts:
Every candidate for election as a member of the Bar Council shall be proposed by two voters by a writing signed by them addressed to the Secretary and delivered to the Secretary not less than twenty and not more than thirty days before the day of election. Each proposal must be accompanied by a statement signed by the candidate showing his willingness to serve on the Bar Council if elected.
The infringement of the rule consists in the nomination paper not having been addressed to the Secretary and delivered to him, argues the Learned Counsel. In our judgment, this contention is devoid of any substance. The evidence of the Secretary of the Bar Council P. W. 1 reveals that the nomination papers of the successful candidates were enclosed in covers (Exs. A-1 to A-10) and delivered to him personally. It is thus manifest that the rule was complied with exactly.
To get over the difficulty created by this testimony Mr. Ramachandriah put forward the proposition that the address of the Secretary should be written on the nomination paper itself. Support is sought for this argument in Narendra Nath Mitter Vs. Radha Charan Pal, . There a candidate for election as Municipal Commissioner sent to the Chairman by way of his nomination paper three nomination forms stuck together under the cover of and attached to a letter by a clip, all of them together containing the information required.
It was decided that the four documents could not be taken as one nomination paper as the nomination should be self-contained and complete and for that reason the nomination was invalid. We are unable to see how the principle of that case would govern the present one. The only requirement of R. 6 is that the candidate should be proposed by two voters in writing. This was done on one paper in respect of all the successful candidates and is not scattered in two or three.
It would be doing violence to the language of the rule to say that the address must be found on the very nomination paper and could not be written on an envelope. There is no warrant for such a construction. Even if such an interpretation were possible, in our opinion, irregularities of a minor character, such as these will not really affect the validity of the election. This principle has been stressed in a number of cases. See Ratansey Damji and Others Vs. Ratansey Virji and Others, This contention therefore also fails and is rejected.
In the result, the election petition is dismissed. We direct the parties to bear their own costs having regard to the circumstances of the case.
Umamaheswaram, J.
I agree with the conclusion arrived at by my learned brother Chandra Reddy J., that the petitioner has not proved that the result of the elections has been in any way materially affected by the contravention of R. 17 of Andhra Bar Council Rules The burden of proof lies heavily upon the petitioner to establish that the respondents have not been duly elected and the petitioner has not satisfactorily discharged the burden of proof.
The main question turns upon the construction of R. 17 of the Andhra Bar Council Rules. It provided in clear and unequivocal terms that a voter shall vote by placing a cross against the name of the candidate or candidates for whom he desires to vote. I have no doubt on the language of the rule, that the right conferred upon the voter is a personal right. The advocate who satisfies the requirements of the definition clause in R. 1 (viii) and is a voter should exercise his judgment and place a cross against the name of the candidate or candidates in whose favour he desires to record the vote.
In my opinion, the argument addressed by Sri Ranganadham Chetty that the advocate voter is entitled to abdicate his function and deliver the voting paper to anyone he chooses including a candidate to exercise the vote in any manner he likes is absolutely untenable and opposed to the language of the rule. The further contention that the candidates or their agents might enter into a contract or arrangement with the other candidates and exchange or mark the votes at their sweet will and pleasure, on the blank voting papers without reference to the voters, is opposed not only to the spirit but also to the terms of R. 17.
I agree with my learned brother that the decision in (1817) 5 Ch D 911 (K)'' throws light on the construction of R. 17. As already stated, the right to be exercised under R. 17 is a personal right and cannot be delegated to anyone else. On a literal reading of the terms of the rule, I am inclined to take the view that the voter alone should put the cross mark against the name of the person for whom he wishes, to vote and that no one else is entitled to do it on his behalf even if he is under any disability to mark the vote.
On the evidence adduced before us, I have no doubt that some of the candidates have collected voting papers which were wholly blank or partly marked. The object of so collecting" must have been as suggested on behalf of the petitioner, for the purpose of "exchanging" and "cashing". There is however no evidence of any actual exchange that took place between the respondents. In order to invalidate the election, the petitioner has to prove how many of the voters have not complied with the terms of R. 17 and how the result of the elections has been materially affected thereby. As stated already, the election petition failed for want of such proof.
On behalf of the petitioner, some of the voting papers were marked as evidence. A look at some of those papers clearly reveals that the cross marks were put not by a single individual but by several individuals. Not only are the marks of varying description or size but are in different colour or ink and they bear distinct, impress of different individuals. I have no doubt that the marks on some of the voting papers were made by several individuals.
But it is not possible to arrive at any definite conclusion, on the basis of personal observation only, as to how many of the votes have not been exercised by the voters themselves. Though the voting papers raise a strong suspicion in my mind, I am not prepared to hold that the elections are invalid on that ground.
It is extremely regrettable that none of the respondents entered the witness box to disprove or contradict the several facts spoken to against them. As pointed out by Lord Shaw in - AIR 1927 230 (Privy Council) , it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. I do not agree that the election enquiry is purely of a criminal nature and that the respondents are in the position of accused. We would have certainly derived great assistance if the respondents had examined themselves to disprove the several facts deposed to against them.
Satyanarayana Raju, J.
I agree with the conclusions reached by Chandra Reddy J.