IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 13770 of 2008 Between: Bukya Venkanna, S/o. Gobriya R/o. Tirumalapuram Thand, H/o. Pinam Pelli, Nelakondapalli, Mandal Khammam District. ..... PETITIONER AND 1 Banothu Krishna Rao, S/o. Rama Chandru, R/o. Tirumalapuram Thand, H/o. Pinam Pelli, Nelakondapalli, Mandal Khammam Dsitrict. 2 The District Collector, Khammam (district Election Authority) Khammam. 3 The Dist Panchayath Officer, (Addl. District Election Authority) Khammam District. 4 The Returning Officer/ Election Officer, Phase-II (Election Authority) Gram Panchayat Painam Palli Village, Nelakondapalli Mandal, Sri K.Suri Junior Lecturer, R.J.C.College, Mamilla gudem, Khamma District. 5 The Executive authority, Gram Panchayat Painam Palli Village, Nelakondapalli Mandal, Khammam Dsitrict. 6 The Mandal parishad Development Officer, (dy. Election authority Nelakondapalli Mandal, Khammam 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 or orders more particularly one in the nature of Writ of Certiorari to call for the records and set aside the order dated 16-6-2008 passed in O.P.No.22 of 2006 on the file election tribunal com Junior Civil Judge, Khammam, Khammam Dist5rict, as illegal, arbitrary and unconstitutional. Counsel for the Petitioner : MR. V.BRAHMAIAH CHOWDARY Counsel for the Respondents : GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.13770 OF 2008 ORDER : This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 16.6.2008 in O.P.No.22 of 2006 on the file of the Election Tribunal cum Junior Civil Judge, Khammam and to set aside the same being arbitrary and illegal. The facts, in brief, are as under : The election to the office of the Sarpanch of Pynampalli Gram Panchayat, Nalkondapalli Mandal, Khammam District was held on 2.8.2006 in which the writ petitioner who secured 944 votes was declared elected. The 1st respondent herein in whose favour 934 votes were polled filed E.O.P.No.22 of 2006 before the Election Tribunal cum Principal Junior Civil Judge, Khammam under Section 233 of the A.P. Panchayat Raj Act, 1994 (for short, ‘the Act’) read with Rule 2 of the Andhra Pradesh Panchayat Raj (Election Tribunals in Respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short, ‘the Rules’) made under G.O.Ms.No.111, PR, RD & R (Ele.-III), dated 3.3.1995 seeking a declaration that the election of the writ petitioner herein was null and void and to declare the 1st respondent herein as successful candidate by recounting the votes. On appreciation of the evidence adduced by both the parties, the Election Tribunal by order dated 16.06.2008 allowed E.O.P.No.22 of 2006 directing recounting of votes and holding that subject to the result of recounting the final order would be passed. The said order is under challenge in this writ petition. I have heard Sri B. Audinarayana Rao, learned counsel appearing for the writ petitioner as well as Sri K. Vinay Kumar, learned counsel appearing for the 1st respondent and Sri V.V. Prabhakara Rao, learned counsel appearing for the 4th respondent – Election Officer. With the consent of the learned counsel for both the parties, the matter was heard finally and decided at the admission stage itself. The learned counsel for the petitioner contended that the Tribunal below committed a grave error in directing recounting of votes since absolutely no case was made out by the election petitioner/1st respondent herein to establish that there was any irregularity in counting of votes which materially affected the result of the election. On the other hand, the learned counsel for the 1st respondent sought to justify the order impugned contending that having regard to the material available on record the Tribunal below had rightly concluded that it was just and necessary to order recounting of the votes. The circumstances under which recounting of votes can be ordered have been explained in various decisions by the Supreme Court as well as this Court and it would be suffice to refer to a recent decision of the Supreme Court in SADHU SINGH v. DARSHAN SINGH AND ANOTHER[1] wherein the following factors were summed up as relevant for directing recounting of votes. “(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.” In the light of the legal position noticed above, the only question that arises for consideration is whether the election petitioner/1st respondent herein has made out a prima facie case warranting a direction for recounting of votes. As could be seen from the pleadings, the specific case of the election petitioner/1st respondent herein was that at 7.00 p.m. on 2.8.2006 the Returning Officer informed that the writ petitioner and the 1st respondent herein secured 946 votes each and in the postal ballot of six votes whereas the 1st respondent secured 5 votes the writ petitioner got only 1 vote. Thus, it was declared that total 951 votes were polled in favour of the 1st respondent herein and 947 votes were polled in favour of the writ petitioner. However, the agent of the writ petitioner with the help of his supporters raised commotion and having entered into the counting booth damaged the furniture and created terror thereby forcing the election authority to take up verification of the votes. In the circumstances, the Returning Officer under the threat of the writ petitioner rejected some of the valid votes polled in favour of the 1st respondent herein. Consequently, the votes polled for the 1st respondent herein were reduced to 934 and the writ petitioner was declared to have secured 944 votes. Thus, the writ petitioner was declared elected with a difference of 10 votes. Immediately, the agent of the 1st respondent herein filed an application for recounting of total votes. However, the same was not entertained by the Returning Officer and he left the counting booth with the help of Police. Thus, in the election petition, it was alleged that the writ petitioner was declared elected on account of the malpractice committed by his agent and his supporters who created havoc in the counting booth and influenced the election officials. The writ petitioner in his counter denied all the allegations, particularly the plea that the Returning Officer had initially informed that both the candidates secured 946 votes each and that the verification was taken up on account of the alleged commotion created by the agent of the 1st respondent. The allegation that some of the valid votes polled were rejected resulting in reduction of the votes secured by the 1st respondent herein was also denied. Both the parties adduced oral and documentary evidence to substantiate their respective claims. Whereas the 1st respondent herein/election petitioner got himself examined as P.W.1 and his agent was examined as P.W.2, the writ petitioner/returned candidate got himself examined as R.W.1. The Returning Officer who supported the version of the writ petitioner gave his evidence as R.W.4 and stated that the application for recounting of the votes was made by the 1st respondent herein at 7.30 p.m., fifteen minutes after the declaration of the results. The application made by the 1st respondent herein for recounting was marked as Ex.A2, whereas the F.I.R. registered on the basis of the complaint lodged by the Returning Officer on the next day with the police was marked as Ex.A4. The Tribunal below, on appreciation of the above evidence, recorded a finding that there was galata resulting in damage to the property in the counting station. Nothing could be placed before this Court by the writ petitioner to disturb the said finding of fact recorded by the Tribunal which is amply supported by the evidence on record. The fact that the 1st respondent herein made Ex.A-2 application requesting for recounting of the votes polled and the same was presented before the Returning Officer at 7.30 p.m. on the same day is also not in dispute. However, the writ petitioner as well as the Returning Officer denied the plea of the 1st respondent herein/election petitioner that the Returning Officer had initially informed that the 1st respondent was polled 951 votes and the writ petitioner was polled 947 votes after adding 6 votes of postal ballot. The allegation that verification of votes polled was taken up under the threat of the writ petitioner’s agent was also denied. In the circumstances, the learned counsel for the writ petitioner contends that since the election petitioner failed to establish any irregularity in counting of votes, the Tribunal below ought not to have ordered recounting. It is to be noted that for the purpose of directing recounting, it is not necessary for the Election Tribunal to make a roving enquiry and record a finding. As per the settled law what all is required is a specific plea stating irregularities in counting of votes and a prima facie case for recounting of votes. In the case on hand, admittedly there was a big commotion at the counting booth at the time of declaration of the result which ended in damage to furniture by the outsiders who forcibly entered into the counting booth. It is also an admitted fact that Ex.A2 representation was made by the 1st respondent herein immediately thereafter at 7.30 p.m. alleging that invalid votes were mixed with total votes and that the Returning Officer informed after counting that the 1st respondent got 946 votes. The above two admitted facts coupled with the specific allegations in Ex.A2 representation which was submitted before the Returning Officer at the earliest point of time made out a prima facie case to order recounting of votes. In the circumstances, I am of the opinion that the Tribunal below was justified in directing recounting of votes. The allegation of the writ petitioner that the recounting was ordered by the Tribunal below mechanically merely on the ground that the writ petitioner herein was won with the margin of 10 votes is unfounded. From the material on record, it is clear that the 1st respondent herein/election petitioner had made out a prima facie case for recounting of votes by alleging an irregularity in counting of votes which might have materially affected the result. For the aforesaid reasons, the order under challenge which is in accordance with law does not suffer from any error warranting interference by this Court. Writ Petition is accordingly dismissed. No costs. ______________ G. ROHINI, J. Dt. 04.07.2008 gbs [1] 2006 (5) ALD 12 (SC)