THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY W.P. No.439 of 2010 Dt:25-01-2010 Between : Kammari Laxmi ..petitioner And K.Manula Rani and others. ..Respondents Counsel for the petitioner : Sri B.Vijaysen Reddy Counsel for respondent No.1 : Sri S.Satyam Reddy < GIST >HEAD NOTE: ? CASES REFERRED : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.439 of 2010 ORDER: Election to the Grampanchayat, Pagdiyal, of Ranga Reddy District, was held on 02-08-2006. The petitioner and respondents 1 and 2 filed nominations for the office of Sarpanch. The petitioner was declared as elected. The 1st respondent filed O.P.No.1 of 2006 in the Court of Junior Civil Judge, Pargi, with a prayer to declare the election of the petitioner as null and void; to direct the Election Officer, the 3rd respondent herein, to conduct re-counting of the ballot papers, and to direct him to declare the result, impartially. According to the 1st respondent, the 3rd respondent conducted counting of votes, soon after the election, and it emerged that she secured a majority of 18 votes over the petitioner, and on a request made by the petitioner, the 3rd respondent has undertaken recounting. She alleged that, during the course of recounting, the 3rd respondent has thrown away 33 votes, polled in her favour from a window, and has added 22 fresh votes in favour of the petitioner, and that the same has given rise to the change of result in the election. The petitioner contested the O.P., and filed counter-affidavit. She denied the allegations, and stated that the counting was done strictly in accordance with the prescribed procedure, and that the allegations made by the 1st respondent are not true, but are imaginary. Through its order dated 21-12-2009, the trial Court allowed the O.P. It not only has set aside the election of the petitioner, but also declared the 1st respondent as duly elected for the office of Sarpanch. The same is challenged in this writ petition. Sri B. Vijayasen Reddy, learned counsel for the petitioner, submits that the allegations made by the 1st respondent in the O.P, are vague, baseless and inconsistent. He contends that the prayer in the O.P. was the one for declaring the election of the petitioner herein as null and void; and to direct the 3rd respondent to conduct recounting of votes, and that there is no prayer to declare the 1st respondent as elected, and still, the trial Court has straightaway allowed the O.P., setting aside the election of the petitioner, and declaring the 1st respondent as elected. Learned counsel submits that there was absolutely no evidence, worth its name, to prove the contents of the O.P, and the trial Court did not record any finding as to the alleged irregularities. Sri S. Satyam Reddy, learned counsel for the 1st respondent, on the other hand, submits that the 3rd respondent committed serious irregularities, while counting the votes. He contends that, in the initial counting of votes for the office of Sarpanch, it emerged that his client secured 18 votes more than the petitioner, and just on a request made by the petitioner, the process of recounting was undertaken. It is urged that in the course of recounting, the 3rd respondent has not only thrown away substantial number of votes, polled in favour of the 1st respondent, but also has included, about 22 fresh votes in favour of the petitioner. Learned counsel submits that the trial Court has taken a comprehensive view of the matter, and has granted the relief, in accordance with law. The prayer made by the 1st respondent in her O.P., was twofold, viz., to set aside the election of the petitioner, and to direct the 3rd respondent to recount the votes. It was not even prayed that she be declared as elected, independently. To be precise, the prayer made in the O.P., reads as under: a) “That the Election of respondent No.1 to the post of Sarpanch, Grampanchayat Pagdiyal, Ganded Mandal, RR District be declared as null and void till result of verification with recounting is declared. b) to direct the respondent No.3, Election Officer, to conduct re-counting of Ballot Papers by removing the newly added ballot papers in the presence of the petitioner or her agents. c) to direct the respondent No.3 to declare the result impartially. d) costs of the petition be awarded. e) any other relief or reliefs be awarded for which the petitioner is entitled under law”. In the O.P., it was pleaded that after counting votes, the 3rd respondent declared that the 1st respondent secured a majority of 18 votes, but on a request made by the petitioner, he has undertaken recounting. At one place, it is alleged that the 3rd respondent misplaced 33 votes, polled in favour of the 1st respondent, and at another place it is stated that the said votes were thrown out from the window. Another allegation is that, as many as 22 unused ballot papers were signed by the 3rd respondent and counted in favour of the petitioner by putting the marks. The petitioner and the 3rd respondent filed counter-affidavits and denied the allegations. The trial Court framed the following issues, for its consideration: 1. Whether the election of respondent No.1 as Sarpanch of Pagdiyal Village is liable to be set aside? 2. Whether respondent No.3 is to be directed to recount the votes afresh? 3. Whether the petitioner is to be declared as Sarpanch of Pagdiyal Village? On behalf of the 1st respondent, PWs 1 to 4 were examined and Exs.P-1 to P-5 were filed. On behalf of the petitioner, no evidence was adduced. The trial Court allowed the O.P., and granted the following relief: “In the result, the petition is allowed with costs declaring the election of respondent No.1 for the post of Sarpanch of Pagdiyal Village as null and void and declaring the petitioner as duly elected for the post of Sarpanch of Pagdiyal Village”. It has already been mentioned that the relief claimed is the one, to set aside the election of the petitioner, and thereafter to undertake recounting of votes. In the teeth of this, the relief granted by the trial Court is untenable. A strong case was required to be made out for recounting of votes. Even if a case, as pleaded by the 1st respondent, was made out, the only relief, that could have been granted was, to direct recounting of votes. The occasion to set aside the election of an elected candidate, would arise if only, the result of recounting reveals that the votes polled by him fell short of majority. Surprisingly enough, the trial Court has travelled far beyond the scope of an election O.P., and has set aside the election of the petitioner, without ordering recounting of votes, much less recording a finding as to its necessity. As through that illegality is not sufficient, it proceeded to declare the petitioner as elected, though there was no prayer for this. The principal allegation made by the 1st respondent was that, in the course of recounting, the 3rd respondent has misplaced or has thrown away 33 votes, polled in her favour. No independent witness was examined in this context. The 1st respondent deposed as PW-1, PW-2 is her election agent and PW-3 is her husband. The evidence of PW-4 was eschewed, since he was not available for cross- examination. If the 3rd respondent has thrown out any votes from the window, there should not have been any difficulty for the petitioner, or her agent to collect at least some of them. Further, it is not known as to how they became aware of the number of votes, that were thrown out. The Election Officer deposed as RW-1. The only suggestion made to him, on this aspect, was, about the news report, that is said to have emerged on the next day. As regards the other allegation, about the alleged inclusion of 22 unused ballot papers, in favour of the petitioner, the evidence is equally scanty. The trial Court took note of the various particulars of votes, i.e. total votes 1408, those polled in favour of, the petitioner, 681, the 1st respondent 658, the 2nd respondent 37, and invalid votes 32. After taking note of this, he just accepted the plea, as to throwing out of votes, as though it is proved beyond doubt, and held that the petitioner secured 689 votes. The entire discussion in the findings of the trial Court is contained in only one paragraph, and it reads as under: “Respondent No.2 got only 37 votes. Ex.P1 shows that three votes polled to respondent No.2 were thrown away. Even if these three votes are taken into consideration, she get only 40 votes in all. Ex.P1 shows that two votes polled to respondent No.1 were thrown away. If these two votes are taken into consideration, she gets a total number of 683 (681 + 2) votes. Ex.P1 also shows that 31 votes of the petitioner were thrown away. If these votes are taken into consideration, she would get 689, which is the highest number of votes among the contestants. The argument of the learned counsel for the petitioner is that the election officer committed irregularities, while counting the votes and thrown away 31 votes polled in favour of the petitioner and therefore even recounting of votes at this stage is not required and the petitioner is liable to be declared as elected Sarpanch of Pagdiyal Village. There is sufficient force in the argument of the learned counsel. Therefore, the election of respondent No.1 is liable to be declared as null and void and the petitioner is liable to be declared as elected Sarpanch for Pagdiyal Village without ordering for recounting of votes. These points are accordingly decided in favour of the petitioner and against the respondents”. The approach of the trial Court is totally untenable, if not objectionable. Even for recounting of votes, strong and cogent evidence is needed. The secrecy of ballots cannot be disturbed, unless a strong case is made out, with reference to the facts pleaded. Mere proof of irregularities is not sufficient. It must be established that the irregularity has a direct bearing on the result of election. The allegation that 33 ballot papers were thrown out; is very serious one. When it is flatly denied, by the petitioner and 3rd respondent heavy burden rested upon the 1st respondent to prove it. The allegation is so vague and improbable, that she has not only furnished the number of votes, but also alleged that all of them were polled in her favour. No independent witnesses were examined. Not a single paper, said to have been thrown out was placed before the Court. The allegation is self-contradictory. The 1st respondent has also stated that the ballots were misplaced. The trial Court did not bestow its attention to the evidence before it, and straightaway added 33 votes to the account of the petitioner. It is a matter of record that the total number of votes polled were 1408. If the findings recorded by the trial Court are to be taken into account, it emerges that the petitioner secured 683 votes; 1st respondent, 689; 2nd respondent 40, and invalid votes 32. The total comes to 1,444, whereas, the total votes as per records are 1408. Either on account of lack of experience, or out of sheer carelessness, the learned Presiding Officer did not even verify this crucial aspect, and has granted a whimsical relief in the election O.P. This Court takes serious exception to the manner in which the trial Court dealt with the election O.P. The writ petition is accordingly allowed, and the order in the O.P.No.1 of 2006 is set aside. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt. 25-01-2010. L.R. copy to be marked. KO