THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1139 of 2009 ORDER: 1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed challenging the preliminary order dated 04.03.2009 in E.O.P. No.6 of 2006 on the file of the Junior Civil Judge-cum-Election Tribunal, Kothavalasa, Vizianagaram District, whereunder and whereby the trial court ordered recounting of votes directing the third respondent to produce ballot boxes containing votes polled in the election for the post of Sarpanch, Chanduluru Grampanchayat. 2. The petitioner herein is the returned candidate, and first respondent herein is unsuccessful candidate, in the election held on 02.08.2006 for the post of Sarpanch, Chanduluru Grampanchayat. The first respondent herein filed E.O.P. No.6 of 2006 before the Election Tribunal under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994 to set aside the election of the petitioner herein for the post of Sarpanch, Chanduluru Grampanchayat by declaring the declaration issued by the fourth respondent as null and void, to recount all the votes polled in the elections and declare her duly elected for the said post. After completion of enquiry, the trial court passed the impugned preliminary order ordering recounting of the votes. Challenging the same, the present revision is filed by the petitioner/returned candidate. 3. Heard both sides. 4. The ground on which the Election Petition is filed by the first respondent herein, who is unsuccessful candidate, is that in the election held for the post of Sarpanch, 2048 votes were polled including postal ballot papers, whereas Ex.A3-declaration given to the returned candidate, would go to show that total number of votes polled including postal ballots is only 2,046, and therefore, there is discrepancy with regard to two votes, which will tilt the decision if all the votes are properly counted. On the other hand, it is the contention of the learned counsel for the petitioner herein, who is returned candidate, that Ex.A3, which is a document containing number of votes polled, is filed by the unsuccessful candidate itself not disputing about the recitals therein, and that the fact of slender margin between the votes secured by the returned candidate and the unsuccessful candidate by itself is not a ground to order recounting of the votes unless it is shown any material irregularity. 5. Several contentions have been raised in the Election Petition by the unsuccessful candidate and necessary evidence has been adduced. The Tribunal, without adverting to the other issues involved in the Election Petition, ordered for recounting of the votes holding that the election petitioner averred in the petition and stated in the evidence that 2046 votes have been polled, which is not denied by the returned candidate, but whereas as per Ex.A3, total number of votes polled is 2044 including invalid votes, and in view of this discrepancy, ordered for recounting of the votes. 6. The learned counsel for the revision petitioner/returned candidate placed strong reliance on a decision in M.Chinnasamy v. K.C.Palanisamy & others,[1] wherein it is held thus: (para 16). “The necessity of “maintaining the secrecy of ballot papers” should be kept in view before a recounting is directed to be made. A direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.” From the above decision, it is clear that the slender margin of votes between the unsuccessful candidate and the returned candidate by itself is not a ground to order for recounting of votes. 7. On the other hand, it is the contention of the learned counsel for the first respondent/unsuccessful candidate is that a specific plea has been taken in the Election Petition by the unsuccessful candidate and also necessary evidence was let in, to show that for the post of Sarpanch election, 2046 votes have been polled whereas Ex.A3 shows that only 2044 votes have been taken into consideration, and therefore by this discrepancy there is a material irregularity committed by the Election Officer. 8. Rule 60 of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006 provides that after announcement of result has been made under Rule 59, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer for recounting of the votes either wholly or in part stating the grounds on which he demands such recount. Evidence of the Returning Officer (R.W.3) would go to show that the counting process was done in the presence of the petitioner, first respondent and their agents as per the Election Rules; that after completion of counting, he again verified the doubtful votes which are declared as invalid votes by the election supervisors; that the candidates and their agents expressed satisfaction after he announced the name of successful candidate; that all of them satisfied and signed on the result form; that he declared the name of successful candidate and that none of the persons present demanded for recounting either in writing or orally. Practically, the evidence of R.W.3 remained unchallenged. Nothing has been elicited to discredit the testimony of R.W.3. 9. In so far as Ex.A3 is concerned, it is filed by the first respondent herein herself. As seen from Ex.A3, for the post of Sarpanch, Smt. Kolli Demudamma (petitioner herein) is the returned candidate, who secured 993 votes polled and 14 votes in postal ballot, and the unsuccessful candidate (first respondent herein) secured 996 votes polled and 8 votes in postal ballot, and there are 33 invalid votes. If all these votes are put together, the total number of votes polled comes to 2044. Therefore, when the document Ex.A3 is not specifically denied or disputed, it can be accepted as true as it is maintained in the course of discharge of official duties by the Returning Officer. Hence, the recitals in Ex.A3 coupled with the evidence of R.W.3, who is the Election Officer, would clearly go to show that Ex.A3 is true and correct document which contains necessary particulars with regard to number of votes polled in the election for the post of Sarpanch. Therefore, the contention that there is a discrepancy with regard to the total number of votes polled, as contended by the learned counsel for the first respondent herein and as approved by the Tribunal, is wholly devoid of merit and untenable. This aspect of the case has not been taken into consideration by the Tribunal. Therefore, the impugned order is liable to be set aside. 10. The Civil Revision Petition is, accordingly, allowed setting aside the impugned order. No costs. In view of the fact that it is a preliminary order, the Tribunal is directed to dispose of the main Election Petition in accordance with law. --------------------- (K.C.Bhanu, J.) 11.3.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1139 of 2009 11.3.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 1139 of 2009 11.3.2011 Between: Kolli Demudamma …Petitioner And Yedla Mangamma & others …Respondents [1] (2004) 6 Supreme Court Cases 341