The Hon’ble Sri Justice L.Narasimha Reddy +WRIT PETITION No.6072 of 2009 % Dated 08.04.2009 # Between: Bodala Suresh Kumar S/o. Peda Satyam ..... PETITIONER AND Turibilli Narasimgarao S/o.Ramunaidu and four others. .....RESPONDENTS ! Counsel for the Petitioner: Sri Balaji Medamalli ^ Counsel for Respondent No.1: Sri K.Sarvabhouma Rao ^ Counsel for Respondents 2 to 5: Govt. Pleader for Panchayat Raj and Rural Development <GIST: > HEAD NOTE: ? Cases referred 1. 2006 (5) ALD 12 (SC) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 6072 of 2009 Between: Bodala Suresh Kumar S/o. Peda Satyam Kotturu(V) Kothavalasa(M) Vizianagaram District ..... PETITIONER AND 1 Turibilli Narasimgarao S/o.Ramunaidu Kantakapalli(V) Kothavalasa(M) Vizianagaram District 2 District Election Authority-Cum District Collector Vizianagaram District 3 Additional District Election Authority cum Mandal Praja Development Officer Ch Prakasarao Kothavalasa(M) Vizianagaram District 4 Returning Officer Stage-II Kantakapalli(V) Kothavalasa(M) Vizianagaram District, Ch.Appalanaidu Kothavalasa,Vizianagaram District 5 Executive Authority Cum Secretary Gram Panchayat Kantakapalli Kothavalasa(M), Vizianagaram District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction or writ more particularly one in the nature of writ of Certiorari calling for the record in EOP No.7 2006 dt 16-3-2009 on the file of the Junior Civil Judge-Cum- Election Tribunal at Kothavalasa Vizianagaram District and to set aside the same as ex-facie illegal contrary to the provisions of A.P Panchayat Raj (Election Tribunals in respect of Gram Panchayat, Mandal Parishad and Zilla Parishad) Rules 1995 and to pass appropriate orders. Counsel for the Petitioner: MR.BALAJI MEDAMALLI Counsel for the Respondent No.1:MR K.SARVABHOUMA RAO Counsel for the Respondents 2 to 5: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.6072 of 2009 ORDER: Election to Kantakapalli Gram Panchayat of Kothavalasa Mandal, Vizianagaram District was held on 02.08.2006. The petitioner, the first respondent, and another person, by name Bodala Venkataramana contested for the office of Sarpanch. They secured 520, 515 and 454 votes respectively. The petitioner was declared elected as Sarpanch by the Returning Officer, the fourth respondent herein. The first respondent filed E.O.P.No.7 of 2006 in the Court of the Junior Civil Judge-cum-Election Tribunal, Kothavalasa, challenging the election of the petitioner. He pleaded that certain irregularities have taken place at the time of counting the votes. According to him, the counting of votes started at 2.00 p.m. on the date of polling and on account of heavy rain and cloudy sky, the light was poor and there was no electricity. It was alleged that the charging lamp that was used went off frequently and a large number of people have gathered into counting hall, causing disturbance. An allegation was made to the effect that several votes polled in favour of the first respondent were declared invalid. Certain other allegations were also made. The petitioner was impleaded as the second respondent in the E.O.P. The first respondent in the E.O.P. i.e. Bodala Venkataramana, remained ex parte. The petitioner filed a counter- affidavit denying the allegations made by the first respondent. He stated that the counting was undertaken in the presence of all the three candidates and their counting agents, and even the first respondent did not raise any objection till the results were declared. According to him, the first respondent made a request for recounting only after the results were declared and forms were signed. The fourth respondent herein also denied the allegation made by the first respondent and he pleaded that the counting was done strictly in accordance with the guide-lines prescribed therefor. He denied the allegations as to darkness or interference in the polling process by others. Through its order, dated 16.03.2009, the Tribunal directed recounting of votes. The same is challenged in this writ petition. Sri Balaji Medamalli, the learned counsel for the petitioner, submits that except making certain vague and uncertain allegations, the first respondent did not prove any irregularities in the process of counting. He submits that even the application for recounting was made after the results were declared and necessary forms were signed by the fourth respondent and counting agents. He further submits that there was absolutely no evidence worth its name, to substantiate the contention of the first respondent. Sri K.Sarvabhouma Rao, learned counsel for the first respondent, who filed caveat, submits that the Tribunal discussed the evidence on record at length and arrived at a specific conclusion that a case is made out for recounting. He further submits that the margin of votes between the petitioner and the first respondent is very thin and no prejudice would have been caused to the petitioner, in case recounting is conducted. The learned counsel also submits that the Tribunal was satisfied that the first respondent pleaded and proved several facts, which warrant recounting and that the order passed by the Tribunal does not call for interference. The petitioner was declared elected as Sarpanch of Kantakapalli Gram Panchayat of Kothavalasa Mandal, Vizianagaram District against his nearest rival, the first respondent. The E.O.P. was filed for the relief of setting aside the election of the petitioner, directing recounting of votes and to declare the first respondent as elected candidate. The principal contention urged on behalf of the first respondent was that though the counting took place during day, the light was poor due to heavy rain and absence of electric power and thereby, verification of the votes was not properly done. It is urged that while the counting staff were on one side of the table, candidates and counting agents were made to sit on the other side, and that they were not able to see the ballots properly. Mention was also made of the invalid votes, which, according to them, were otherwise valid. To prove his contention, the first respondent deposed as P.W.1 and his agent was examined as P.W.2. Ex.A1 is a petition for recounting and Ex.A2 is receipt therefor. No other evidence was adduced on his behalf. The petitioner deposed as R.W.1 and his counting agent was examined as R.W.2. The fourth respondent herein was examined as R.W.3. Exs.B1 to B6 were marked on his behalf. The only question that fell for consideration before the Tribunal; and now falls for consideration before this Court, is as to whether the first respondent made out a case for recounting? It hardly needs any mention that recounting of votes cannot be resorted to as a matter of course and the person pleading for it must prove the necessary ingredients. Secrecy of ballots is one of the important aspects in electoral democracy and before the same is violated, a strong case must be made out. Courts always tried to strike a decent balance between ensuring fairness in the results on the one hand and maintenance of secrecy of ballots on the other. Though large number of decided cases exists on this aspect, it would be sufficient if reference is made to the judgment of the Hon’ble Supreme Court in Sadhu Singh Vs. Darshan Singh[1]. The Hon’ble Supreme Court identified certain important factors that are required to be taken into account, in the context of directing recounting of votes. They are; (i) prima facie case must be established; (ii) material facts must be pleaded stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes; (iv) an objection to the said effect should be raised; and (v) secrecy of ballot papers should be maintained. The same was reiterated in Chandrika Prasad Yadav Vs. State of Bihar and others[2]. In an election petition where a specific prayer is made for recounting of votes, an important fact that needs to be proved is that objection in this regard was raised at the earlier point of time. In other words, existence of an application for recounting, at an appropriate time, would add strength to the case. In the instant case, the first respondent, no doubt, filed Ex.A1, with a prayer to recounting of votes. That, however, was made after the results were declared. The Tribunal itself found that Ex.A1, which is equivalent to Ex.B6, was filed subsequent to declaration of results. It is, no doubt, true that in certain cases, this Court held that even in the absence of an application for recounting, the Tribunal can order recounting, if a case is made out. In such cases, the burden virtually gets doubled for the election petitioner. He must make good, the loss, or the deficiency caused on account of absence of an application for recounting at the correct point of time. An aggrieved party must plead and prove that votes of a particular number or category have not been dealt with in accordance with the required procedure and reconsideration thereof, would have altered the results. It needs to be kept in mind that every error or defect, even if proved, cannot, by itself, lead to recounting of votes or annulment of result. It must also be proved that the result of the election has been materially affected on account of such error or defect. The allegations made by the first respondent are general in nature. They were not with reference to any particular number or category of votes. The allegation that the lighting was poor, hardly constitutes any ground, to order recounting of votes. The counting took place from 2.00 p.m. onwards and hardly it lasted for two hours. It would have been a different thing altogether, in case the counting had continued up to night. That was not the case. The election petition as well as the evidence is silent as to the number of votes, which are said to have been declared invalid. One of the parameters indicated by the Hon’ble Supreme Court, namely that a roving and fishing inquiry shall not be directed by way of an order for recounting of votes, becomes relevant in this regard. The evidence of the first respondent comprised of deposition of himself and his election agent. By any standard, they are only self-serving and their evidence cannot be treated as independent or trustworthy and that no independent witness has been examined. The observation that one iron bucket was utilized as a container to put the counted ballot papers does not, by itself, constitute any deviation from the prescribed procedure. The rules do not stipulate any particular category of containers. At any rate, the first respondent did not raise any objection at the commencement of counting for utilizing such containers. The ultimate conclusion arrived at by the Tribunal is contained in the following passage: “The difference of votes between the petitioner and R2 is only six votes which is very slender. As the containers used to placing votes are not similar and uneven and as there is no proper lighting at the time of counting, I feel that it is desirable for order for recounting of votes”. This court is of the view that the finding arrived at by the Tribunal and particularly, the reasons mentioned in support thereof cannot be sustained in law or on facts. A direction issued for recounting of votes, in the absence of any specific finding as to the number and category of votes, is prone to become a roving and fishing inquiry and violate the secrecy of ballot. The writ petition is, accordingly, allowed and the impugned order is set aside. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:08.04.2009 Note: L.R.Copy to be marked. B/o Kdl ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 District Election Authority-Cum District Collector Vizianagaram District 2 Additional District Election Authority cum Mandal Praja Development Officer Ch Prakasarao Kothavalasa(M) Vizianagaram District 3 Returning Officer Stage-II Kantakapalli(V) Kothavalasa(M) Vizianagaram istrict, Ch.Appalanaidu Kothavalasa,Vizianagaram District 4 Executive Authority Cum Secretary Gram Panchayat Kantakapalli Kothavalasa(M), Vizianagaram District 5 2 CCs to Government Pleader for Panchayat Raj and Rural Development, , High Court Buildings, Hyderabad. (OUT) 6 2 CD copies. [1] 2006(5) ALD 12 (SC) [2] (2004) 6 Supreme Court Cases 331