IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 3384 of 2009 Between: Peddireddy Venkata Satyanarayana Murthy @ chittibabu S/o. Late Sanyasi Rao R/o. D.No.14/69, Brundavan, Payakaraopet, Visakhapatnam District. ..... PETITIONER AND 1 The Election Tribunal-cum-Principal Junior Civil Judge, Yelamanchilli, Visakhapatnam District. 2 Danisetti Babu Rao S/o. Late Appa Rao R/o. D.No.7-55/2, Payakaraopet, Visakhapatnam District. 3 Akasapu Veera Sundara Nagabhushanam S/o. Late Mutyalu D.No.6-106, Pattu Sali Street ward No.6, Payakaraopet, Visakhapatnam. 4 Dasari Gavararaju S/o. Bulli Venkata Raju R/o.D.No.3-63, Pattulalli Street, Ward No.6, Payakaraopet, Visakhapatnam District. 5 Gaddam Venkateswara Gandhi S/o. Chinnaiah R/o. D.No.17-65, Northern Side Street to Sivalayam Street, Payakraopet, Visakhapatnam. 6 Bathula Jaya Sambasiva Rao S/o. Late Pothuraju R/o. 13-92, Surya Tent House, Main Road, Payakraopet, Visakhapatnam District. 7 Mallapureddy Sreenivas S/o. Appa Rao R/o.D.No.20-75/1, Durga Colony, Ward No.20, Payakraopet, Visakhapatnam 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 a writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records in E.O.P.No.7/2006, dt. 17.02.2009 on the file of the Election Tribunal-cum-Prl. Junior Civil Judge, Yelamanchili, Visakhapatnam and quash the same as illegal, arbitrary, void abinitio and contrary to the law declared by the Constitutional courts. Counsel for the Petitioner : MR. V.V.N.NARAYANA RAO Counsel for the Respondents : Sri C. Ramachandra Raju The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.3384 OF 2009 ORDER : This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 17.02.2009 in E.O.P.No.7 of 2006, on the file of the Court of the Election Tribunal-cum-Principal Junior Civil Judge, Yellamanchili, Visakhapatnam District and quash the same being arbitrary and illegal. The election to the office of Sarpanch of Payakaraopet Gram Panchayat was held on 2.8.2006. The writ petitioner and the respondents 2 to 7 herein filed their nominations. The election authority declared the writ petitioner as elected by over a margin of 106 votes as against the 2nd respondent herein. Aggrieved by the same, the 2nd respondent herein filed E.O.P.No.7 of 2006 in the Court of the Principal Junior Civil Judge-cum-Election Tribunal, Yellamanchili, Visakhapatnam District, with the following prayer : The petitioner, therefore, prays the Hon’ble Court to pass decree and judgment in favour of the petitioner as against the respondents more particularly the 1st respondent: (a) For the recounting of the votes; (b) For a declaration that declaration of the Election Officer that the 1st respondent won the election to the post of the President of the Payakaraopeta Gram Panchayat as illegal; (c) To declare that the petitioner was the duly elected President of the Payakaraopeta Gram Panchayat; (d) For costs of this petition and for such other relief or reliefs as the Hon’ble Court deems fit and proper in the circumstances of this case. After hearing both the parties, the Tribunal below by impugned order dated 17.02.2009 allowed E.O.P.No.7 of 2006 directing recounting of votes through an Advocate-Commissioner appointed for the said purpose. This writ petition is filed challenging the said order contending inter alia that the recounting ordered by the Tribunal below in the absence of any iota of evidence about the overt acts by the writ petitioner (returned candidate) or his agents or any person at his instance is arbitrary and illegal. It is also contended that since the 2nd respondent/Election Petitioner failed to implead the Election Officials as respondents to the Election Petition, the Election Petition is liable to be dismissed at the threshold on that ground alone. I have heard the learned counsel for the writ petitioner as well as the learned Counsel appearing for the 2nd respondent/Election petitioner and perused the material on record. Sri V. Venkata Ramana, the learned counsel appearing for the writ petitioner, while contending that there was absolutely no evidence to make out even a prima facie case as to the alleged irregularities, submitted that recounting of votes was not at all warranted. In support of his submissions, the learned counsel relied upon M. CHINNASAMY v. K.C. PALANISAMY[1], P.K.K. SHAMSUDEEN v. K.A.M. MAPPILLAI MOHINDEEN AND OTHERS[2], P.H. PUJAR v. KANTHI RAJASHEKHAR KIDIYAPPA[3], MAHENDRA PAL v. SHRI RAM DASS MALANGER AND OTHERS[4] and SADHU SINGH v. DARSHAN SINGH[5]. While submitting that the election petition is like a Civil trial and therefore the Tribunal below is bound to frame proper issues with regard to the real points in controversy, the learned counsel further contended that the omission to frame proper issues vitiated the impugned order and therefore on that ground also the same is liable to be set aside. In support of the said submission, the learned counsel relied upon a decision in MAKHAN LAL BANGAL v. MANAS BHUNIA[6]. On the other hand, the learned counsel appearing for the 2nd respondent contended that the finding recorded by the Tribunal below that many irregularities took place in the process of counting of votes is based upon proper appreciation of evidence produced by the election petitioner/2nd respondent and the impugned order does not warrant interference by this Court in exercise of Certiorari jurisdiction. The mistakes/irregularities in counting of votes as alleged in the election petition were summed up by the Tribunal below at para-23 of the impugned order as under : (1) The counting process was not commenced till 4.00 p.m. even though the schedule time is 2.00 p.m. on 2.8.2006. (2) The counting staff made several interruptions in the process of counting. (3) The counting staff was clearly won over by the 1st respondent, his men and the local M.L.A. of Payakaraopeta Assembly Constituency and the said M.L.A. surprisingly made sudden and surprising visit at the scene of counting at 3.00 a.m. on 3.8.2006 and pressurized the election authority to make declaration of the election of R.1 to the office of Sarpanch of the said Panchayat by playing dominating role even by crossing the fence at the counting limits. (4) At about 9.00 pm. On 2.8.2006 the counting personnel irresponsibly staged a dharna and unduly abstained from discharging their duties for their demand of additional D.A. and night meals etc., (5) The counting staff leisurely restarted the counting from 12 mid night during which period, 25 ballot bundles of the President election left opened and unattended and uncovered and despite the protest of the election petitioner on this point, the counting went on from 12 mid night to 3.00 a.m. on 3.8.2006. (6) As a matter of fact, the election petitioner is entitled for six counting tables. Initially though six tables were there upto 4.00 p.m. on 2.8.2006, but due to influence of the local M.L.A. (Telugu Desam party MLA), the election authority allowed him to field only four counting agents. (7) The counting personnel at table-1 and table-4 started pretending that they are over powered by their fatigue and drowsiness and under the cover of the same started doing many mistakes in placing his valid vote in the trays of other candidates. (8) Added to his on the day of counting, there was a storm with moderate to heavy rain with heavy gales and there was power failure three times for more than 15 to 20 minutes at each time and when the agents of the election petitioner pointed the mistakes, the agents of R.1 overpowered them. There is no alternative lighting arrangements during power failure. (9) The agents of the election petitioner informed him that in his vote’s bundle they placed the vote of R.1 on the outer covering ballot to make show that the bundle does belongs to R.1 and put such bundles in R.1’s tray and when his agents raised objections, they pretended tracing and traced only one bundle as against their bundles that are so mixed and corrected that mistake and from that bundle they separated the vote of R.1 and placed it in its right tray and they have not corrected the similar mistake with the other three bundles. (10) The votes were not subjected to final verification. At the end of the rounds they are informed that there are only 342 invalids, but surprisingly they made a final tally of the invalid ballots as 563. (11) At the same time they have improperly validated 22 (twentytwo) votes of R.1. (12) The final tally of the votes as R.1 polled 3392, that the election petitioner got 3286, R.2 got 1911, R.3 got 1947, R.4 got 127, R.5 got 141 and R.6 got 66 votes and that 563 are the invalid votes which is not correct and it is a made up figures. (13) The election petitioner demanded for the recounting of the votes. The local M.L.A. entered the counting station and had talk to the counting officer privately. On that, the election petitioner raised a protest. The Election Officer has not heeded his protest. He colluded with them. And as to the dictations of the local M.L.A., he prepared the declaration forms and unduly and wrongly declared R.1 as elected. The writ petitioner/returned candidate in his counter contended that the entire election process was held as per the schedule and that all the allegations made by the petitioner were false and without any basis. However, the other candidates who contested the election but lost and who were arrayed as respondents 3, 4 and 6 to the election petition (respondents 4, 5 and 7 respectively in this writ petition) filed counters substantiating the allegations made in the election petition and further pleading that the counting staff did not take proper care of the ballots and that the local M.L.A. who entered the counting station along with more than 100 people overpowered every one at the counting place. The two other defeated candidates who were arrayed as respondents 2 and 5 to the election petition remained ex parte. The election petitioner (2nd respondent herein) got himself examined as P.W.1 and deposed that the counting of votes though scheduled to be commenced at 2.00 p.m. could not be started till 4.00 p.m., that there were several interruptions in the process of counting, that the local M.L.A. visited the counting place and pressurized the election authority to declare the election in favour of the writ petitioner, that at 9.00 p.m. the counting staff staged a dharna and abstained from discharging their duties demanding additional D.A. and Night Meals, that the counting was restarted in the midnight at 12.00o Clock and continued upto 3.00 a.m., that there was a storm with moderate heavy rain with heavy gales and there was also power failure thrice for more than 15 to 30 minutes each time. It was also deposed by P.W.1 that he was informed by his counting agents that his polled votes were misplaced and though there were only 231 invalid votes, in the final ballot the invalid votes were shown as 563. The evidence of P.W.1 was substantiated in all material particulars by his counting agent and general agents who deposed as P.Ws.2, 3 and 6. That apart, the working Journalist of Andhra Jyothi daily who gave evidence as P.W.4 also reiterated the version of P.W.1. The oral evidence of P.Ws.1 to 4 was corroborated by Exs.A-1 to A-9 documents marked on behalf of the election petitioner which included the photographs published in the local dailies showing the presence of the local M.L.A. and his supporters at the counting place. The Lab Assistant at the Photo Studio who had taken the prints of the photographs gave evidence as P.W.5. As against the said evidence, the writ petitioner/returned candidate alone came into the witness-box as R.W.1 and Ex.B-1 was marked which is nothing but the copy of petition received by him from the petitioner. On appreciation of the above oral and documentary evidence, the Tribunal below recorded a finding that the election petitioner pleaded all the material facts specifying the alleged irregularities in the counting and produced sufficient evidence to prima facie prove his case and the returned candidate failed to adduce any oral or documentary to disprove the same. On a careful consideration of the depositions of the witnesses as well as the other material placed before this Court, I do not find any justifiable reason to interfere with the finding recorded by the Tribunal below that the election petitioner had made out a prima facie case with regard to the alleged irregularities in counting of the votes polled. Then the next question that arises for consideration is whether the Tribunal below was justified in directing recounting. It is true that the maintenance of secrecy of ballots is one of the important aspects of democratic process and recounting of votes cannot be ordered as a matter of course. However, it has been held in a catena of decisions by the Apex Court as well as this Court that where specific allegations are made in the pleadings in the election petition as to the irregularities in the counting of polled ballot papers such as improper acceptance of votes or improper rejection of valid votes and the evidence is adduced to substantiate the same so as to make the Tribunal to reach a prima facie satisfaction as to the alleged irregularities, the direction for recounting is justified. It is also a settled law that the justification for an order for recounting of votes is not to be derived by the results of recounting of votes and that the recounting cannot be ordered merely on the ground that no prejudice would be caused to the other side by directing recounting { vide SADHU SINGH v. DARSHAN SINGH (2006) 5 ALD 12 (SC); P.H. PUJAR v. KANTHI RAJASHEKHAR KIDIYAPPA (2002) 3 SCC 742; M.R. GOPALAKRISHNAN v. THACHADY PRABHAKARAN AND OTHERS 1995 Supp. (2) SCC 101; M. CHINNASAMY v. K.C. PALANISAMY (2004) 6 SCC 341; and P.K.K. SHAMSUDEEN v. K.A.M. MAPPILLAI MOHINDEEN AND OTHERS (AIR 1989 SC 640) }. As noticed above, in the instant case there was specific pleading in the election petition as to the alleged irregularities. There was also sufficient documentary and oral evidence, including the evidence of an independent witness like P.W.4, to substantiate the specific allegations in the pleadings. On the basis of the said evidence, having been satisfied that a prima facie case is made out to show that the allegations, if proved may materially affect the result of the election, the Tribunal below directed recounting. The fact that some of the defeated candidates who were arrayed as respondents to the Election Petition in their counters made the very same allegations of irregularities in counting of votes lent support to the prima facie case made out by the election petitioner. In the circumstances, the Tribunal below thought it fit to direct recounting of votes and the same cannot be held to be erroneous on any ground whatsoever. Though the learned counsel for the petitioner sought to contend that the omission of the election petitioner to make any one of the election officers as parties to the election petition and particularly the failure to examine the election officer as a witness is fatal to the proceedings, I am unable to agree. As per Rule 4 of Andhra Pradesh Panchayat Raj (Election Tribunals in Respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 made under G.O.Ms.No.111, P.R. & R.D. & R (Elec.III) Dept., dated 3.3.1995, it is mandatory to join all the returned candidates as respondents where irregularities alleged in the petition are likely to affect the validity of the election or more than one returned candidate. Except that, there is no other provision which makes it mandatory to implead the election officer as a party respondent to the Election Petition. As a matter of fact, in MICHAEL B. FERNANDES v. C.K. JAFFER SHARIEF AND OTHERS[7] it was held that the Returning Officer and the Chief Electoral Officer need not be impleaded as party-respondents in the election petition even if they have been alleged in the petition to have not complied with the provisions of Conduct of Elections Rules and the guidelines issued by the Election Commission of India. There can be no dispute about the ratio laid down in MAKHAN LAL BANGAL’S case ( 6 supra ) that the election petition is like a civil trial and therefore the Election Tribunal is bound to frame the proper issues for determination. However, the only question involved in the present Election Petition was whether they were any errors in the counting of votes which might materially affect the result of the election. The said aspect was considered by the Tribunal below in detail and a specific finding was recorded. Hence, the order challenge cannot be held to be bad on that ground. For the aforesaid reasons, the impugned order dated 17.2.2009 which does not suffer from any patent error of fact or law warrants no interference by this Court. Accordingly, the Writ Petition is dismissed. No costs. ______________ G. ROHINI, J. Dt. 23.03.2009 gbs Note:- CC by tomorrow. (B/O) KM [1] (2004) 6 Supreme Court Cases 341 [2] AIR 1989 Supreme Court 640 [3] (2002) 3 Supreme Court Cases 742 [4] AIR 2002 Supreme Court 1291 [5] (2006) 6 Supreme Court Cases 255 = 2006 (5) ALD 12 (SC) [6] (2001) 2 Supreme Court Cases 652 [7] (2002) 3 Supreme Court Cases 521