* THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND *THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + W.A.NO. 407 OF 2009 % 23-04-2009 # Peddireddy Venkata Satyanarayana Murthy @ Chittibabu, S/o late Sanyasi Rao, aged 32 years, R/o. D.No.14/69, Brundavan, Payakaraopet, Visakhapatnam District. ….. Petitioner Vs. 1. $ The Election Tribunal-cum-Principal Junior Civil Judge, Yelamanchili, Visakhapatnam District and others ….Respondents ! Counsel for the Appellants: Sri V.V.N. Narayana Rao ^ Counsel for the Respondents: Sri C. Rama Chandra Raju < Gist: >Head Note ? Citations: 1. (2002) 3 SCC 521 2. (2004) 6 SCC 341 3. (2006) 6 SCC 255 4. AIR 2002 SC 1291 5. AIR 1989 SC 640 6. (2002) 3 SCC 742 7. (2001) 2 SCC 652 8. 1993 SUPP (2) SCC 82 9. AIR 1989 SC 640 10. (1980) 2 SCC 537 11. AIR 1964 SC 1249 12. 1997 (6) SUPREME 6 13. (1999) 8 SCC 692 HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR W.A.No. 407 of 2009 JUDGMENT: (Per BCK, J) This Writ Appeal has been filed challenging the order, dated 23- 03-2009 passed by a learned single Judge of this Court in W.P.No.3384 of 2009, whereby and whereunder, the order, dated 17- 02-2009 in E.O.P.No.7 of 2006 passed by the Principal Junior Civil Judge-cum-Election Tribunal under the A.P. Panchayatiraj Act, 1994, Yelamanchili (hereinafter referred to as ‘the Tribunal’), was confirmed. 2. The brief facts of the case are as follows: The Appellant herein and respondents 2 to 7 contested in the election for the post of Sarpanch (President) of Gram Panchayat, Payakaraopeta, Visakhapatnam District held on 02-08-2006. The Appellant herein has secured a majority of 106 votes and thus the respondents 2 to 7 were unsuccessful. No written objections were filed demanding recounting of votes. The results were declared and the appellant was declared as winning candidate. The second respondent herein filed Election O.P.No.7 of 2006 before the Tribunal praying for a decree and Judgment in his favour and against the Appellant for recounting of the votes and for declaration that the action of the Election Officer in declaring that the Appellant has won the election to the post of Sarpanch of the village as illegal and consequently to declare him as duly elected candidate to the said post and for costs. 3. The allegations of the second respondent in the election petition were summed up by the Tribunal at para-23 of its order as under: (1) The counting process was not commenced till 4.00 p.m. even though the schedule time is 2.00 p.m. on 2.8.2006. (2) The counting staff made several interruptions in the process of counting. (3) The counting staff was clearly won over by the 1st respondent, his men and the local M.L.A. of Payakaraopeta Assembly Constituency and the said M.L.A surprisingly made sudden and surprising visit at the scene of counting at 3.00 a.m. on 3.8.2006 and pressurized the election authority to make declaration of the election of R.1 to the office of Sarpanch of the said Panchayat by playing dominating role even by crossing the fence at the counting limits. (4) At about 9.00 pm on 2.8.2006 the counting personnel irresponsibly staged a dharna and unduly abstained from discharging their duties for their demand of additional D.A. and night meals etc., (5) The counting staff leisurely restarted the counting from 12 mid night during which period, 25 ballot bundles of the President election left opened and unattended and uncovered and despite the protest of the election petitioner on this point, the counting went on from 12 mid night to 3.00 a.m. on 3.8.2006. (6) As a matter of fact, the election petitioner is entitled for six counting tables. Initially though six tables were there upto 4.00 p.m. on 2.8.2006, but due to influence of the local M.L.A. (Telugu Desam Party MLA), the election authority allowed him to field only four counting agents. (7) The counting personnel at table-1 and table-4 started pretending that they are over powered by their fatigue and drowsiness and under the cover of the same started doing many mistakes in placing his valid vote in the trays of other candidates. (8) Added to his on the day of counting, there was a storm with moderate to heavy rain with heavy gales and there was power failure three times for more than 15 to 20 minutes at each time and when the agents of the election petitioner pointed the mistakes, the agents of R.1 overpowered them. There is no alternative lighting arrangements during power failure. (9) The agents of the election petitioner informed him that in his vote’s bundle they placed the vote of R.1 on the outer covering ballot to make show that the bundle does belongs to R.1 and put such bundles in R.1’s tray and when his agents raised objections, they pretended tracing and traced only one bundle as against their bundles that are so mixed and corrected that mistake and from that bundle they separated the vote of R.1 and placed it in its right tray and they have not corrected the similar mistake with the other three bundles. (10) The votes were not subjected to find verification. At the end of the rounds they are informed that there are only 342 invalids, but surprisingly they made a final tally of the invalid ballots as 563. (11) At the same time they have improperly validated 22 (twenty two) votes of R.1. (12) The final tally of the votes as R.1 polled 3392, that the election petitioner got 3286, R.2 got 1911, R.3 got 1947, R.4 got 127, R.5 got 141 and R.6 got 66 votes and that 563 are the invalid votes which is not correct and it is a made up figures. (13) The election petitioner demanded for the recounting of the votes. The local M.L.A. entered the counting station and had talk to the counting officer privately. On that, the election petitioner raised a protest. The Election Officer has not heeded his protest. He colluded with them. And as to the dictations of the local M.L.A., he prepared the declaration forms and unduly and wrongly declared R.1 as elected. 4. The Appellant herein filed counter denying the allegations made by the second respondent. According to the Appellant, the entire election process held as per the Schedule and Rules in force and that the election authorities discharged their duties properly and without any influence by anyone. The specific case of the Appellant is that neither the second respondent nor the local MLA ever interfered in the election in any manner and the second respondent could not digest his defeat and falsely created all the allegations. He denied the allegation that the votes polled for the presidential candidates in the six wards were separated and bundled into ballots of 25 bundles but not counted. It is also denied that 25 ballot bundles of the president election were left opened and left unattended, uncovered despite the protest of the agents of the second respondent. The Appellant also denied the allegation that pretending overstraining, the counting personnel failed to discharge their duties properly and the counting personnel at table-1 and table-4, who did their duties previously elsewhere, stated pretending that they are overpowered by their fatigue and drowsiness and under the cover of the same started doing many mistakes in placing the valid votes of the second respondent in the trays of other candidates. It is also denied that when the second respondent’s agent at table No.-1 raised his objections, the officials pretended tracing, and traced only one bundle as against four bundles that were so mixed and corrected that mistake and without correcting the similar mistake in respect of other three bundles. 5. The other allegations such as agents of the appellant were allowed to come to the counting place and tables, and that the local MLA visited the counting place and allegedly influencing the counting personnel and forcing the election officer to declare that the appellant was elected etc. have also been denied. 6. The third respondent filed counter and made almost the same allegations as made by the second respondent. 7. The fourth respondent also made similar allegations. It is further alleged by the fourth respondent that some of the ballots were scattered on the floor and that he picked up one ballot and tried to show to the returning officer, but the returning officer left the place without noticing the same. 8. R-6 adopted the counters filed by R-3 and R-4. 9. The second respondent himself was examined as PW-1 and PWs.2 to 6 were examined on his behalf and Exs.A-1 to A-6 were marked. The appellant herein was examined as DW-1 and Exs.B-1 and X-1 were marked on his behalf. 10. After the evidence was closed, the second respondent filed I.A.No.1550 of 2007 for reopening the matter, I.A.No.1551 of 2007 for adding respondents 7 to 9, I.A.No.1552 of 2007 for recounting of votes and I.A.No.1553 of 2007 for exhibiting Ex.A-4, video disk. The Tribunal allowed I.A.Nos.1550 and 1552 of 2007. However, I.A.No.1551 of 2007 and I.A.No.1553 of 2007 were dismissed. A common order was passed in those I.As. Challenging the orders passed in I.A.No.1552 of 2007, C.R.P.No.5555 of 2007 was filed before the High Court of A.P and learned single Judge of this Court set aside the order in I.A.No.1552 of 2007 and allowed the C.R.P. However, a direction was given to the Tribunal to decide the matter in accordance with law inclusive of the relief relating to recounting which had been prayed for in the main Election O.P. 11. The Tribunal by its order, dated 17-02-2009, allowed Election O.P.No.7 of 2006 by holding that absolutely there is no corroborative oral or documentary evidence on behalf of the first respondent (appellant herein) to disprove the contentions of the petitioner (2nd respondent herein). The Tribunal further held that: “Moreover, the remaining respondents i.e., R.3, R.4 and R.6 strongly supported the averments of the petition by way of filing counter.” The Tribunal also held that: “In this case, the remaining contesting respondents i.e. R3, R4 and R6 filed their respective counters pointing out the irregularities as are pleaded in the election petition. R3, R4 and R6 all in one voice convincingly and corroboratively contended about the interference of local Telugu Desam Party MLA into the counting station along with his hired men and supporters and overpowering everyone and on his entry more than hundred people made forcible entry into the counting place and no official tried to prevent it.” 12. Being aggrieved by the order of the Tribunal, the Appellant herein filed W.P.No.3384 of 2009 before this Court and a learned single Judge of this Court dismissed the writ petition confirming the orders passed by the Tribunal. Being aggrieved by the same, the present Writ Appeal has been filed. 13. In the writ petition, the learned single Judge relied on MICHAEL B. FERNANDES v. C.K. JAFFER SHARIEF AND OTHERS [1] , wherein it was held that the returning officer and the Chief Electoral Officer need not be impleaded as party-respondents in the election petition even if it is alleged that they have not complied with the provisions of Conduct of Election Rules and the guidelines issued by the Election Commission of India. 14. The learned counsel for the Appellant submitted that the second respondent herein made vague and bald allegations and no specific allegations were made such as at which table, in which round and in whose presence the irregularities were committed. It is further submitted that if at all any such irregularities were, in fact, committed, nothing prevented the second respondent from giving a written complaint to the election officers. He further submitted that recounting should not be ordered for mere asking and that the law has been well settled on this aspect. It is his submission that the Judgment relied on by the learned single Judge of this Court in MICHAEL B. FERNANDES’ case (1 supra), is not applicable to the facts of the present case. He further submitted that in this case specific allegations have been made against the returning officer and other counting staff that they colluded with the appellant and that under the influence of the local MLA, they declared the result as if the appellant won the election, and when specific allegation of collusion is made, the second respondent ought to have made the returning officer as party to the Election O.P. It is also submitted that neither the returning officer was summoned nor he was examined and no opportunity was given to the returning officer and the counting staff to deny the allegations made against them. When mala fides have been attributed and specific allegation that the returning officer is won over by the appellant is made, then the petition is bad for not making the returning officer as party to the petition. 15. The learned counsel has also referred to the Election Petition, wherein specific allegations have been made against the Election Officer, and argued that the Tribunal ought to have dismissed the Election Petition for non-joinder of necessary party. It is further submitted that admittedly no written complaint or request was made at any stage of the counting till the election result was declared. It is further submitted that the allegation that the local MLA visited the counting place and influenced the returning officer etc. are absolutely false. It is further submitted that even according to the second respondent, the counting process was completed by 3-00 AM and that the local MLA visited the counting place after 3-00 AM and then left the place and that the election results were announced at 5-00 or 5-30 AM and no counting process continued after the visit of the MLA, therefore, the visit of MLA would not have any effect on the result of the election. It is further submitted that the other allegations that the election staff demanded additional DA or arrangement for food etc. or that there was rain or failure of electricity etc are false and even if it is assumed that some of them are true, they have no effect on the counting process or in the result of the election and those are all omnibus and vague allegations and that all the candidates would be effected by those circumstances and no one would have any specific advantage of the same. It is further argued that since no appeal is provided against the order of the Election Tribunal, the High Court is empowered to consider whether the evidence on record is sufficient or not and whether the findings are not based on the evidence and whether they are perverse. It is further argued that the Tribunal did not frame any issues or points for consideration and the findings of the Tribunal are not based on proper appreciation of evidence and that the Tribunal committed irregularity in holding that the averments of the other respondents themselves corroborated the case of the second respondent. It is further argued that the Tribunal went wrong in treating the pleadings and evidence as one and the same and failed to appreciate that mere pleadings have no value in the absence of evidence substantiating the same. It is vehemently argued that the allegations of the second respondent are not only vague, but afterthought and the Tribunal failed to consider that if at all the alleged irregularities had taken place or that the officers colluded with the appellant, the second respondent or his counting agents would have certainly filed written application for recounting and they would have immediately reported the matter to the superior authorities. Therefore, the order passed by the Tribunal and confirmed by the High Court in the writ petition cannot sustain and the same are liable to be set aside. 16. The learned counsel for the Appellant relied on the following decisions: M. CHINNASAMY v. K.C. PALANISAMY [2], SADHU SINGH v. DARSHAN SINGH [3], MAHENDRA PAL v. SHRI RAM DASS MALANGER AND OTHERS [4] , P.K.K. SHAMSUDEE v. K.A.M. MAPPILLAI MOHINDEEN AND OTHERS [5], P.H. PUJAR v. KANTHI RAJASHEKHAR KIDIYAPPA [6] and MAKHAN LAL BANGAL v. MANAS BHUNIA [7]. 17. The learned counsel for the second respondent vehemently argued that if at all the appellant secured majority of votes and no irregularities have been committed in the counting process, there is no need for the appellant to oppose recounting. It is further submitted that the second respondent is seeking only recounting of votes and is not asking to set aside the election result before recounting and no prejudice will be caused to the appellant or to anyone if the votes are recounted. It is further submitted that the ballots were bundled and each bundle contained 25 ballots and the counting officers had put one vote of appellant on the top of the bundle of votes of the second respondent and in all four such bundles of the second respondent were mixed in the bundles of appellant and thus the election staff in collusion with the appellant indulged in malpractices and illegally declared the appellant as winning candidate. His main submission is that there is no mandatory Rule that the Election Officer should be made as party and when all the other candidates are made as parties, the Rule is complied. It is also his submission that the appellant did not make any plea in his counter that the election petition is bad for non-joinder of Election Officer. Thus his submission is that when the appellant has not taken such a plea in his counter, he shall not take the same subsequently. It is further submitted that specific allegations have been made and the second respondent adduced required evidence and the same was rightly accepted by the Tribunal and confirmed by the High Court in the writ petition, and there are no grounds to interfere with the same. 18. In the light of the rival contentions of both parties, the points arise for consideration are: 1. Whether the order passed by the Tribunal and confirmed by the High Court is liable to be set aside? 2. Whether the Tribunal went wrong in concluding that the allegations made by the second respondent are supported by the averments of the other respondents in their respective counters? 3. Whether the Election Petition is bad for non-joinder of the Election Officer? POINT NO.1: 19. As far as the present Election Petition is concerned, the following principles laid down by the Hon’ble Supreme Court appears to be kept in mind before discussing the merits of the case: 20. In M. CHINNASAMY’s case (2 supra), the Supreme Court held as follows: “The necessity of “maintaining the secrecy of ballot papers” should be kept in view before a re-counting is directed to be made. A direction for re-counting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.” 21. The following decisions have been referred in M. CHINNASAMY’s case (2 supra), which throw some light on the principles to be followed in deciding the election petitions: In SATYANARAIN DUDHANI v. UDAY KUMAR SINGH [8], the Supreme Court held that: “A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High 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.” In P.H. PUJAR’s case (6 supra), the Supreme Court held that: “The petitioner seeking re-count should allege and prove that there was improper acceptance of votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the said allegations can it order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality and irregularity in counting.” 22. Rule 3 (ii) of the A.P. Panchayat Raj (Election Tribunals In Respect Of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 is as follows: “3 (ii) The petition shall contain a statement in concise form, the material facts on which the petitioner relies and the particulars of any corrupt practices which he alleges and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner prescribed for verification of pleadings in the Code of Civil Procedure, 1908.” Thus the particulars of corrupt practices have to be given. Material facts and particulars as far as this case means specific allegations giving the particulars of tables, rounds in which irregularities were noticed should be mentioned. If there is no protest and the candidates and their agents kept quite till the results are declared, subsequent allegations may be doubted as afterthought allegations. Recounting of votes cannot be ordered merely because no prejudice would be caused to the winning candidate. 23. The learned counsel for the second respondent vehemently contended that no prejudice would be caused to the appellant by ordering recounting and that the appellant should not object for the same if he is confident of winning the election. The Hon’ble Supreme Court in CHINNASAMY’s case (2 supra) with reference to the question of prejudice observed as follows: “The question of prejudice of the election petitioner would not be a relevant factor keeping in view the constitutional and statutory scheme involving holding of an election and the consequences emanating from the direction of re-counting which may lead to identification of voters as the same is not at all desirable.” 24. The Election Tribunal mainly referred to the evidence of the appellant and held that the appellant has not let in any satisfactory evidence to counter the allegations of the second respondent. The settled legal position is that it is for the election petitioner to substantiate the allegations made by him. His case would stand or fall on the basis of the evidence let in by him. He cannot depend on the weakness of the opposite party. I n P.K.K. SHAMSUDEE v. K.A. M.MAPPILLAI MOHINDEEN AND OTHERS [9], it was held as follows: “An order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.” 25. The main contention of the learned counsel for the Appellant is that no specific allegations have been made in the petition and unless specific allegations with all particulars have been made in the petition and evidence is let in to prove the same, no recounting can be ordered. In support of his contention, he relied on M. CHINNASAMY’S case (2 supra), wherein the Supreme Court referred the case in P.H. PUJAR’s case (6 supra), wherein it was held that: “The petitioner seeking re-count should allege and prove that there was improper acceptance of votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the said allegations can it order re-count of votes. Secrecy of ballot has always