*THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY +W.P.No.11107 of 2010 % 18-3-2011 # Kagitha Bhanu .. Petitioner Vs. $ The Principal Junior Civil Judge-cum- Election Tribunal, Gudivada, Krishna District and others .. Respondents ! Counsel for petitioner : Sri O.Manohar Reddy ^ Counsel for respondent Nos.1 to 5 : A.G.P. for Panchayat Raj Counsel for respondent No.6 : Sri C.Raghu < Gist: > Head Note: ? Cases referred: 1. 2009 Supreme-7-19 2. AIR 2000 S.C. 3230 3. 2003(3) ALD 427 4. 2003(5) ALD 384 5. AIR 1970 S.C. 276 6. 1984 Supp. SCC 157 7. (1989) 1 SCC 526 8. 1993 Supp.(2) SCC 82 9. AIR 1964 S.C. 1249 10. 1980 Supp. SCC 53 = AIR 1980 S.C. 1362 11. (1980) 2 SCC 537 = AIR 1980 S.C. 206 12. 1995 Supp.(2) SCC 101 13. AIR 1963 SC 779 14. AIR 1963 SC 1723 15. AIR 1964 Supreme Court 477 16. AIR 1965 SC 1103 17. AIR 1975 SC 2151 18. (1995) 6 SCC 749 19. (1999) 1 SCC 759 THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY W.P.No.11107 of 2010 Date :18-3-2011 Between : Kagitha Bhanu .. Petitioner And The Principal Junior Civil Judge-cum- Election Tribunal, Gudivada, Krishna District and others .. Respondents Counsel for petitioner : Sri O.Manohar Reddy Counsel for respondent Nos.1 to 5 : A.G.P. for Panchayat Raj Counsel for respondent No.6 : Sri C.Raghu The Court made the following : JUDGEMENT: The petitioner, whose election as Sarpanch of Puritipadu Gram Panchayat was set-aside by the learned Principal Junior Civil Judge-cum-Election Tribunal, Gudivada, Krishna District (for short, “the Election Tribunal”), filed this Writ Petition assailing preliminary and final orders dated 27-1-2010 and 28-4- 2010, respectively, in Election O.P.No.5/2006. The facts in brief are set out hereunder: In the election held on 6-8-2006, the petitioner was elected as the Sarpanch. Respondent No.6 was his only rival. The petitioner was declared to have secured 396 valid votes while respondent No.6, 391 votes. Respondent No.6 filed the election O.P. mainly on three allegations, namely, (i) that 4 votes were wrongly polled and counted in favour of the petitioner; (ii) that names of eight persons were included in the voters’ list at two places and that those votes were polled in favour of the petitioner and (iii) 19 votes polled in favour of respondent No.6 were unjustly treated as invalid. In support of his case, respondent No.6 examined himself as PW-1 and one Yarlagadda Satyanarayana as PW-2 and marked Exs.P-1 and P-2 on his side. The petitioner examined herself as RW-1 and also examined two others including the Election Officer as RW-3 and marked Ex.B-1 on her side. Having regard to the respective pleadings, the Election Tribunal has framed the following Points: “1. Whether the petitioner is entitled for the relief of recounting of votes as prayed for ? 2. Whether the petitioner is entitled for declaration to the effect that declaring of respondent No.1 as Sarpanch, Puritipadu, is illegal and the same is liable to be set-aside as prayed by him ? 3. To what relief ?” A perusal of the preliminary order dated 27-1-2010 would go to show that the Election Tribunal has directed recounting mainly on ground Nos. (ii) and (iii) urged by respondent No.6, as referred to above. In support of ground No.(ii), respondent No.6 has pleaded and also deposed that the names of as many as six persons mentioned in Sl.Nos.48, 82, 136, 141, 598 and 880 were repeated in the voters’ list. It is the specific plea of respondent No.6 that all of them being the supporters of the petitioner have cast their votes in favour of the latter. With regard to ground No.(iii), it is the pleaded case of respondent No.6 that the Election Officer has rejected as many as 20 votes and that those votes polled in his favour were unjustly treated as invalid votes. On the plea relating to repetition of names of six voters, the Election Tribunal placed its reliance on the oral evidence of the petitioner as well as respondent No.6. It has taken note of the allegation that all the six persons whose names are repeated in the voters’ list are the supporters of the petitioner. The Election Tribunal also considered the admission made by the petitioner in her evidence as RW-1 that some of the said six persons are her supporters. The Election Tribunal also considered the fact that the counter foils along with the relevant ballot book which are in the sealed ballot boxes need to be perused in order to verify whether the pleas raised by respondent No.6 are correct or not. The same reasoning is adopted by the Election Tribunal in dealing with the averment of respondent No.6 that invalidation of 20 numbers of ballot papers was improper. On the above reasoning, the Election Tribunal has directed recount of all the ballot papers. The petitioner has not challenged the said order and accordingly recount was held. Thereafter, the Election Tribunal has passed the final order on 28-4-2010. In its final order, the Election Tribunal has observed that a person B.Parvathi was shown at Sl.Nos.48 and 82, B.Brahmanna at Sl.Nos.136 and 141, Vemula Srinivasa Rao at Sl.Nos.598 and 880 and they have cast their votes twice. It is also observed that except the voter at Sl.No.4233584, other voters bearing Nos.4233579, 4234178, 4233579, 4233975, 4233459, 4233546, 4233381 and 4233415 cast their votes twice in favour of the petitioner. The Election Tribunal has placed reliance on Section 11(6) of the A.P. Panchayat Raj Act, 1994 (for short “the Act”) under which no person shall vote in an election under the Act in more than one ward or more than once in the same ward and if he does so all his votes shall be invalid and accordingly rendered invalid all 8 ballot papers which were cast by the same persons for the second time. As it was found that 7 out of the said 8 votes were cast in favour of the petitioner and the margin was only 5 votes, the election of the petitioner was set-aside and respondent No.6 was declared to have been duly elected by one vote. At the hearing Sri O.Manohar Reddy, learned counsel for the petitioner, advanced the following contentions: (i) The Election Tribunal committed a serious error in ordering recount without availability of proper evidence in proof of the allegations of respondent No.6 that the persons whose names were repeated twice have cast their votes and even if it is so they have cast their votes only in favour of the petitioner. In support of his submission, the learned counsel placed reliance on the Judgments of the Supreme Court in Udey Chand Vs. Surat Singh[1] and Vadivelu Vs. Sundaram[2]; and (ii) Even assuming that there is justification for ordering recount, the Election Tribunal in its final order has failed to properly consider whether the persons whose names were repeated in the voters’ list twice have cast their votes second time and even if they have done so, whether they have cast 7 votes in favour of the petitioner. Opposing these contentions, Sri C.Raghu, learned counsel for respondent No.6 submitted that the Election Tribunal has ordered recount based on specific evidence available before it and that therefore the preliminary order passed by the Election Tribunal does not suffer from any illegality or infirmity. He placed reliance on the Judgments of this court in Vanguri Mariamma Vs. Kandukuri Gangamma and others[3] a n d T.Sivachandradu Vs. Election Tribunal-cum- Principal Junior Civil Judge, Nandikotkur, Kurnool District and another[4] in support of his submissions. The well defined parameters and the scope of the power of the Election Tribunals and the Courts to order recount are laid down in a long line of cases. I n Jitendra Bahadur Singh Vs. Krishna Behari[5], the Supreme Court held that the basic requirements to be satisfied before the Election Tribunal can permit inspection of ballot papers are that (1) the petition for setting aside the election must contain an adequate statement of material facts on which the petitioner relies in support of his case and (2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary. It was further held that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made i.e., there must be such facts as to afford a basis for the allegations made in the petition. I n D.P. Sharma Vs. Commissioner and Returning Officer[6] it was held that in order to obtain recount of votes, a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which are in reality cast in favour of the defeated candidate. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen[7] the Supreme Court held as under : “... thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an Election Petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes.” In Satyanaraian Dudhani Vs. Uday Kumar Singh[8] the Apex Court held that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and that an order of recount cannot be granted as a matter of course, that 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 order of recount can be issued. In an exhaustive reference to the case law, the Supreme Court in Vadivelu (2 supra), held at para-16 as under : “The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount 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 or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties.” I n Ram Sewak Yadav Vs. Hussain Kamil Kidwai[9] the Supreme Court held that for granting an order of inspection, the following two conditions need to be fulfilled : “ (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. It was further held : “But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.” A similar view was taken in S.Raghbir Singh Gill Vs. S.Gurcharan Singh Tohra[10], R.Narayanan Vs. S.Semmalai[11], M.R. Gopalakrishnan Vs. Thachady Prabhakaran[12]. Applying this well settled legal position emanating from the case law discussed above, it needs to be seen whether respondent No.6 made out a case for passing the preliminary order by the Election Tribunal for recount. Before proceeding further, this Court feels a little handicapped as neither of the parties have filed the pleadings in the election O.P. Both the counsel have argued on the basis of the contents of the two orders of the Election Tribunal from which they gathered the purport of the pleadings and the evidence. In the absence of complete record, this Court can do no more than trying to cull out from these two orders the pleadings and the evidence of the parties. To recapitulate, the main ground on which the Election Tribunal has ordered recount is that the names of eight persons were repeated twice in the voters’ list. The learned counsel for the petitioner has not disputed that sub-section (6) of Section 11 of the Act renders the votes cast by a person more than once in the same ward, invalid. As could be gathered from the orders of the Election Tribunal, respondent No.6 specifically pleaded that the names of six persons were repeated twice. He also referred to those names and serial numbers. Further, he has pleaded that the Election Officer permitted some of the voters to vote for the second time and that those votes at Sl.Nos.48, 81, 136, 141, 598 and 880 shall be treated as invalid votes. The petitioner, who examined herself as RW-1 has admitted that persons at Sl.Nos.48 and 82 at page No.2 of Ex.P- 1 voters’ list were one and the same and that the name of Brahmanna shown at Sl.No.141 was also shown at Sl.No.136 of page No.3 of Ex.P-1. RW-1 further admitted that the names of persons shown at Sl.Nos.406 and 407 are of the same person and similarly, the name of Vemula Srinivas Rao was repeated at Sl.Nos.88 and 598. Though the petitioner as RW-1 denied that the said persons have cast their votes twice, she admitted that they are her supporters. On an analysis of this evidence, the Election Tribunal observed that there is a possibility of the person casting his vote twice if his name is repeated in the voters’ list and that unless counter foils of the ballot book are verified, it is not possible to come to a definite conclusion in this regard. Keeping in view the nature of allegation, there cannot be any direct evidence expected to be adduced by respondent No.6 to show that all the six persons have cast their votes twice or that they have exercised their choice in favour of the petitioner only. As rightly observed by the Election Tribunal, a definite conclusion in this regard can be arrived at only after opening of the ballot boxes because the counter foils of ballot books are in sealed covers. Without verification of these ballot books with reference to the marked voters’ list, also kept in the sealed cover, it is not possible to know with certainty whether the petitioner’s averments are correct or not. On the basis of the circumstantial evidence, the court can at best come to a reasonable conclusion. Faced with such a situation, the Election Tribunal has given its earnest consideration and weighed the probabilities with reference to the available evidence in coming to the conclusion that there is a possibility of six persons casting their votes twice and that as they are the supporters of the petitioner as admitted by her in her cross-examination, they would have voted in her favour. Therefore, in my considered view, the preliminary order directing recount satisfied the two tests laid down by the Supreme Court that the petition for setting aside an election should contain adequate statement of the material facts on which the election petitioner relies in support of his case and that the Election Tribunal should be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. True it is, an order of recount of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of recount is made and not from the result emanating from the recount of votes, as held by the Supreme Court in Udey Chand (1 supra). In other words, what the Supreme Court held was that end does not justify the means. In a given case, even if on a recount the allegations of the election petitioner were found correct, unless the order of recount satisfies the legal parameters, the same cannot be sustained in law. But, in the instant case, in the light of the conclusion drawn by me hereinabove that respondent No.6 has laid proper and sound foundation for recount and the Election Tribunal was prima facie satisfied with reference to the available evidence that a case for recount is made out, the preliminary order of recount cannot be found fault with. Coming to the second submission of the learned counsel for the petitioner, namely, that in the final order the Election Tribunal has not properly considered the petitioner’s objections, this contention can be referred only to be rejected. On a careful perusal of the final order, I find that the Election Tribunal has given proper and sound reasons in coming to the conclusion that in the recount it has come out that 8 persons have cast their votes twice and that out of 8 votes, one was polled in favour of respondent No.6 and 7 in favour of the petitioner. After deducting these votes from the total votes polled in favour of the respective candidates, the Election Tribunal has come to the conclusion that respondent No.6 has won by a margin of one vote. The learned counsel for the petitioner pointed out that the Election Tribunal has not properly verified the counter foils, with reference to the objection raised by her, to know whether the persons mentioned in the table in the election petition have cast their votes twice contrary to Section 11(6) of the Act. I find no force in this submission. In its final order, the Election Tribunal applied its mind to the objection raised by the petitioner and held as under : “But with regard to other objection of the 1st respondent to verify the counter foils to know whether the persons shown in the table mentioned in the election petition were casted their votes twice contrary to Section 11 Rule (6) of A.P. Panchayat Raj Act, 1994. After a careful scrutiny the person B.Parvathi Sl.No.48 and 82 and B.Brahmanna shown in 136 and 141 and Vemula Srinivasa Rao, s/o.Chenchaiah shown in Sl.No.598 and 880 casted their votes twice and except the Sl.No.4233584 all the other votes bearing Nos.4233579, 4234178, 4233579, 4233975, 4233459, 4233546, 4233381 and 4233415 are casted in favour of 1st respondent i.e., winning candidate.” It is trite that this Court in exercise of its Certiorari jurisdiction does not sit in appeal over the judgments and orders of the Courts, Tribunals and Administrative Bodies, but exercises only supervisory jurisdiction. Ordinarily, the findings of fact reached by the inferior Courts or the Tribunals, basing on appreciation of evidence, are not interfered with unless such findings are arrived at by taking into consideration the material which is not relevant or failed to consider the material which is relevant. I n State of Orissa v. Bidyabhushan Mohapatra[13], the Supreme Court considered whether the High Court can interfere with the order of punishment simply because finding recorded by the enquiry officer in respect of some charges is found to be vitiated by an error of law and whether it can go into the sufficiency and adequacy of punishment. While reversing the order of Orissa High Court, which had allowed the writ petition filed by the respondent, their Lordships of the Supreme Court observed: “But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an inquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were ‘unassailable’, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” I n State of A.P. v. Sree Rama Rao[14], the Supreme Court impliedly reiterated the proposition laid down in Bidyabhushan Mohapatra (13 supra) and held: “The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing