*HON’BLE SRI JUSTICE L.NARASIMHA REDDY +WRIT PETITION Nos.25611 & 27561 OF 2008 % 16th March, 2009 # Kulluri Yadagiri. …Petitioner And $ Sagarla Saidulu and others …Respondents ! Counsel for the petitioner : Mr.L.Prabhakar Reddy ^ Counsel for respondent No.1 : Mr. T.Suryakaran Reddy, < Gist: > Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos.25611 & 27561 of 2008 COMMON JUDGMENT: These two writ petitions are directed against the order, dated 03.11.2008, passed by the Election Tribunal-cum-Junior Civil Judge, Nalgonda, in O.P.No.20 of 2006. The petitioner in W.P.No.25611 of 2008 is the 1st respondent in W.P.No.27561 of 2008, and vice versa. Other respondents are common. Hence, the parties are referred to, as arrayed in W.P.No.25611 of 2008. Election to the Office of Sarpanch of Yellareddy Gram Panchayat, Narketpally Mandal, Nalgonda District was held on 02.08.2006. The petitioner and the 1st respondent contested in the election, and the former was declared elected by a margin of 30 votes. The 1st respondent filed the O.P., for the relief of setting aside the election of the petitioner, and consequently, to declare him as having been elected. Through its order, dated 03.11.2008, the Tribunal had set aside the election of the petitioner. However, it refused to declare that the 1st respondent is elected. Instead, it directed that election be held for the Office of Sarpanch. While the petitioner feels aggrieved by the order of the Tribunal, in setting aside his election, the 1st respondent is dissatisfied with the refusal of declaration, in his favour. For all practical purposes, the pleadings in one writ petition are the statements in opposition, in the other. Sri L.Prabhakar Reddy, learned counsel for the petitioner, submits that the Tribunal committed a serious irregularity in directing recounting of votes, though, neither any evidence was adduced for that purpose, nor any finding was recorded to the effect that the recounting is necessary. He contends that several steps were taken by the Tribunal, which had the effect of violating the secrecy of ballot, and even if the findings of the Tribunal are taken on their face value, it cannot be said that the election of the petitioner is, in any way, vitiated. He further contends that every illegality, or irregularity in an election, per se, does not vitiate the election, and it must be clearly demonstrated before the Tribunal, that the election of an elected Candidate was illegal, before it is set aside. Sri T.Suryakaran Reddy, learned counsel for the 1st respondent, on the other hand, submits that the petitioner did not challenge the order passed by the Tribunal directing recounting of votes, and that the order in the O.P., was passed, after taking the oral and documentary evidence into account. He contends that it was demonstrated before the Tribunal, that several irregularities have taken place, and that, the Tribunal had correctly set aside the election of the petitioner. He further contends that the evidence on record was sufficient to demonstrate that, if the wrongfully polled votes are excluded from consideration, the 1st respondent gets majority, and thereby, entitled to be declared as elected. The petitioner won the election from the Office of Sarpanch, with a margin of 30 votes. The 1st respondent challenged the election of the petitioner by pleading five grounds, viz., a) that 15 votes mentioned in Annexure-I were included in the voter’s list; b) that irregularities have taken place in the counting; c) that the petitioner had resorted to rigging during the election; d) that instances of double voting as mentioned in annexure-II exist; and e) that the votes of as many as 15 persons, mentioned in annexure-III, who are on election duty, were polled by impersonation. To establish the grounds pleaded by him, the 1st respondent examined PWs.1 to 4, and filed Exs.P.1 to P.8. On behalf of the petitioner, RWs.1 to 4 were examined, and no documentary evidence was adduced. The Tribunal has taken on record, Exs.C.1 to C.23, which are ballot papers with mark of “Stove” symbol, and certain documents in X-series, which are ballot papers, marked “Door” symbol. The Tribunal framed two issues, viz., i) “Whether the election of the petitioner (1st respondent herein) is materially affected due to corrupt practices, irregularities and illegalities committed by the respondents? If so, whether the election of respondent No.1 as Sarpanch of Grampanchayath, Yellareddyguda is liable to be declared as void illegal and liable to be set aside? ii) Whether the petitioner (1st respondent herein) is entitled to be declared as elected Sarpanch of Yellareddyguda (V), Grampanchayath?” The alleged irregularities pleaded by the 1st respondent, in his election petition, are contained in paragraphs 6 to 14 of the election petition. The gist thereof is that; (a) 15 names, shown in annexure-I, were added to the voters’ list, just before the polling, and they are not entitled to take part in the election (paragraph 6); (b) Corrections were made in the statement of polled votes, etc., without the knowledge of the petitioner (paragraph 7); (c) Arrangements at the polling booths were not properly made, and the booths were very narrow and they were crowded (paragraph 8); (d) The petitioner herein distributed cash, sarees, household articles to women, and arranged vehicles for transporting the voters (paragraph 9); (e) The counting of votes was done, at a time when the electricity was interrupted and proper light was not there. 25 votes were counted illegally in favour of the petitioner, in spite of objection. Ballot papers were counted from the boxes directly, without separating them into symbol-wise. One voter, by name, Parvathamma died and still her vote was polled. There are other similar instances (paragraph 10). Some persons have cast their votes in two wards (paragraph 11). The alleged irregularities can be ascertained only by recounting the polled votes (paragraph 12); (f) The votes of persons mentioned in annexure-III, who are working in 12th Battalion of A.P. Special Police at Anneparthy, were polled through impersonation (paragraph 13). PW.1 is the 1st respondent. He has repeated the contents of the election petition. PW.2 is the Assistant Revenue Sub-Inspector. Through him, Exs.A.5 and A.6 were marked, showing that 15 persons mentioned in annexure-III were put on polling duty. However, in his cross-examination, he stated that he is not sure as to whether those persons have cast their votes on 02.08.2006. PW.3 is the polling agent of the 1st respondent. According to him, the votes of the 15 persons mentioned in annexure-III were polled, though the individuals are not in the village. PW.4 is also an election agent of the petitioner. He spoke to the objections said to have been raised for a vote, being polled by Smt.Sirashi Shobha, in the name of Parvathamma, by impersonation. He further alleged that three ladies, by name, Sura Renuka, Sura Padma and Sura Pavani have voted, as wives of one Sura Shankar, and according to him, the votes of Pavani and Padma are invalid. Barring this, he did not depose to any other fact. The petitioner deposed as RW.1. RW.2 is the polling agent of the petitioner; RW.3 is a Reserve Constable, whose name is included in annexure-III, and RW.4, is the Election Officer, at Stage-II. Before discussing the purport of evidence and appreciation thereof, it is better to take note of the relevant provisions of law. In exercise of power conferred under Sections 233 and 268 of the A.P. Panchayat Raj Act, 1994, the Government of A.P. framed the A.P. Panchayat Raj (Election Tribunal in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules 1995 (for short ‘the Rules’), through G.O.Ms.No.111, dated 03.03.1995. An important provision, relevant for these writ petitions is Rule 12 of the Rules, which stipulates the circumstances under which, the election of a Returned Candidate can be set aside. It reads as under: “If the opinion of the Election Tribunal, (a) that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or (b) that any corrupt practice as laid down under Section 211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with the consent of the Returned Candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a Returned Candidate has been materially affected, (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other than his election agent, with the connivance of the Returned Candidate, or (iii) by any improper reception, refusal, or rejection of any vote, or the reception of any vote which is void, (iv) by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act. (A) The Election Tribunal shall declare the election of the Returned Candidate to be void. (B) If the Election Tribunal holds the Returned Candidate guilty under clause (b) and clause (d)(ii) of this rule, the Election Tribunal shall in addition to declare the election of the Returned Candidate as void, shall also declare that the Returned Candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order.” The 1st respondent did not even plead the grounds mentioned in (a), (b) and (c). Even if the other grounds mentioned in clause (d) are proved, it must be established, that the result of the election, insofar as it concerned the returned candidate, has been materially affected. The grounds mentioned in sub-clauses (i), (iii) and (iv) were not pleaded. The gamut of allegations, made by the 1st respondent, at the most, are referable to clause (d)(iii). Improper reception, refusal or rejection of any vote, or reception of any vote, which is void, would constitute a ground to set aside the election, if it is established that the election of the Returned Candidate is materially affected on account of the same. Heavy burden rests upon an election petitioner, who pleads such grounds, to establish beyond any pale of doubt, the facts pleaded by him. Here itself, it needs to be noted that the proof of the factors, mentioned above, must be independent; and without having recourse to recounting. The truth or otherwise of the allegations made in this regard, cannot be counter-checked, after conducting a recounting of votes. On the other hand, a case has to be made out independently for recounting of votes. Another important aspect is that, while examining the matter, the Tribunal must ensure that secrecy of ballots is not at all violated. The reason is that secrecy of ballots happens to be the most important facets of the electoral democracy. It is rather surprising that the Tribunal proceeded to direct recounting of votes, without recording any finding, that warrant such a recounting. Time and again, the Hon’ble Supreme Court and this Court, held that, recounting of votes, in an election cannot be directed as a matter of course. Not only there must be a specific prayer for recounting of votes, but also adequate evidence must be adduced, to make out a case for recounting. In the instant case, the 1st respondent did make a prayer for recounting of votes, in his election petition. However, his evidence was not at all directed towards it. Be that as it may, there would have been some justification for the Tribunal to order recounting of votes, in case it was satisfied that on a consideration of oral and documentary evidence, a case is made out therefor. Wherever the recounting of votes is one of the prayers in the election petition, it must entail on the basis of an order passed by the Election petition itself; the Tribunal reserving to itself, the power to pass final orders, depending on the out come of the recounting. In the instant case, the 1st respondent filed I.A.No.28 of 2008, with a prayer to order recounting of the ballot papers. The application was opposed by the petitioner herein. I.A. was allowed through order, dated 09.04.2008. The reason furnished by the Tribunal, for ordering recounting of votes, is contained in para 8 of that order. It reads as under: “As per the petition averments the respondent No.1 was declared as winner of the Sarpanch of Gramapanchayath Yellareddyguda by a margin of 29 votes and the specific case of the petitioner as aforesaid the invalid votes are not properly verified and the doubtful votes are counted in the account of respondent No.1. Hence, for the purpose of getting a clarification only in this regard I am of the opinion that it is just and proper to order for recounting of the votes but not for any other purpose and not to decide with regard to the voters list furnished by the election authorities to the respective parties at the time of nomination etc. More over the petitioner’s side evidence was already over and the respondent No.1 who is elected Sarpanch of the said Gramapanchayath has examined two witnesses already. Therefore in the said circumstances of the case and in order to meet the ends of justice, I feel that it is just and proper to order for recounting of all polled votes.” The approach of the Tribunal is totally untenable in law. Even where the recounting is to be undertaken, it must be by the staff connected with the election. In the instant case, the recounting was done through an Advocate-Commissioner, who is neither trained in, nor concerned with, the election process. It ordered recounting of votes to get “clarification” and “not for any other purpose”. It is evident that the order was passed before the evidence on behalf of the petitioner was concluded. Therefore, the very process of recounting of votes undertaken by the Tribunal was contrary to law. The findings recorded by the Tribunal, on various issues mentioned above, need to be examined. It found that inclusion of names in the voters list of the persons mentioned in annexure-I, was illegal. A suggestion was made to the 1st respondent that the inclusion was done much before the election notification. Neither the date of inclusion was mentioned, nor the official, who is connected with the inclusion of the names, was examined. At any rate, it was not alleged, much less proved, that the inclusion of the votes has in any way materially affected the election of the petitioner. The finding is that the inclusion of voters before the election, is illegal and against law. It was not even mentioned that the election of the petitioner is in any way vitiated, on account of the same. The Tribunal rejected the contention of the 1st respondent that the petitioner has resorted to curb practices and held that they were not proved. Another finding recorded by the Tribunal is, in relation to the vote of one Smt.Parvathamma, who is said to be no more. Only on the ground that the report of the Advocate-Commissioner, who conducted recounting, revealed that Parvathamma’s vote was polled, the Tribunal found that rigging has taken place. The finding reads: “….In his report the learned advocate commissioner at page 6 para 38 has categorically stated that as per voters list available in the trunk box containing the ballots and election material the vote of the said S.Parvathamma also polled. This evidence clinchingly proves that there was mal practice and rigging etc….” Even assuming that the vote of a dead person was polled, it just unimaginable as to how it constitutes rigging, or malpractice. The Tribunal has also discussed the contention in relation to annexure-II i.e. instances of double voting. A list of five voters was furnished and it was mentioned that they have voted twice in two different wards. The finding on these questions is so perverse that it did not take note of the fact that though the names of the persons tallied, there was substantial difference as to their age or the names of their fathers or husbands, as the case may be. Further, those facts could have been proved only by examining the concerned persons. A totally unrelated report, not referable to any provision of law and not confronted to the affected parties, does not constitute the basis. So is the case with the finding of the Tribunal on the annexure- III, which is in relation to the persons, who are employed in the A.P. Special Police. The record discloses that one of the persons named therein had categorically stated that he was very much in the station and had exercised his franchise. Except stating that the election of the petitioner is materially affected, the Tribunal did not state the basis therefor. Assuming that any persons, who are otherwise not eligible to vote, have cast their votes, the election of the petitioner could have been vitiated, if only it is proved that all of them have emblock voted in favour of the petitioner. That finding, in turn, could have been possible, only by violating the secrecy of ballots. Firstly, the secrecy of ballots cannot be permitted to be violated; and secondly, no efforts were made even to establish that the so-called two votes were polled in favour of the petitioner. The note of caution added in Rule 12 of the Rules, namely, that it must be proved that the alleged illegal votes have materially affected the result of the elected candidate, assumes significance, in this regard. The Tribunal however took the secrecy of ballots and the circumstances leading to recounting of votes, lightly. It has ordered recounting of votes almost for the asking of it, that too, by an advocate. Several accounts of ballots are to be examined in the process of recounting, but no such steps were taken. Further, the Tribunal had prepared a list of votes with markings for specific symbols thereon. This also constitutes a fragrant violation of the secrecy of ballots. For the foregoing reasons, W.P.No.25611 of 2008 is allowed and the order in O.P.No.20 of 2006 on the file of the Election Tribunal-cum- Junior Civil Judge, Nalgonda, is set aside. Consequently, W.P.No.27561 of 2008 is dismissed. There shall be no order as to costs. ______________________ L.NARASIMHA REDDY,J Dated:16.03.2009. Note: L.R. copy to be marked. (B/o) GJ