THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 4357 of 2006 Date of order: 13.8.2010 Between: Chanda Muthaiah …Petitioner and Election Officer, PACS Rudramkota and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 4357 of 2006 ORDER: This revision petition is directed against the order of the Andhra Pradesh Cooperative Tribunal at Warangal dated 26.7.2006 in OP No. 4357 of 2006 whereby the election of the revision petitioner herein as president of the cooperative society was set aside. The second respondent herein filed the aforesaid OP under Section 61 (3) of the A.P. Cooperative Societies Act, 1964 (for short “the Act”) contending that Primary Agricultural Cooperative Society Limited, Rudramkota of Velerupadu Mandal, Khammam district consists of 13 managing committee members/directors who were elected on 22.10.2005 as members of the society. The revision petitioner as well as the second respondent were elected members of the cooperative committee. On 23.10.2005 the Election Officer called for nominations for the post of president of the society, but the said meeting, for want of Coram, was adjourned and on 24.10.2005 out of 13 members, only 12 attended the meeting and the revision petitioner and the second respondent filed their nominations for the post of president. The election officer, therefore, conducted elections through secret ballot where both the nominees got six votes each. The election officer, therefore, conducted a draw on the basis of lottery system which went in favour of the revision petitioner. The said election of the revision petitioner was challenged in the election OP by the second respondent herein on the ground that on some of the ballot papers polled in favour of the revision petitioner initials of voters were found and the said ballot papers were sought to be rejected as invalid as per Rule 22 (1) (a) (i) of the Rules framed under the Act. The election officer filed a counter and also produced records before the Tribunal. The revision petitioner also filed a counter. The election officer specifically stated in paragraph-7 of his counter that on some ballet papers there were capital letters, but arrow mark was clearly stamped on the brick symbol and as nobody objected to the said mark in the counting hall, results were declared. The Tribunal considered the respective pleadings of the parties, examined the record and allowed the election OP on the ground that the election officer conducted the election illegally in not rejecting the votes having marks and irrespective of any objections, the election officer had to follow the mandate of Rule 22 (1) (a) (i) of the Rules framed under the Act and consequently the election of the revision petitioner as president of the society was declared invalid and the second respondent herein was declared president of the society by setting aside the election of the revision petitioner. The said order was questioned by the revision petitioner in this revision petition. This court, by an interim order dated 11.9.2006, while admitting the revision petition, granted interim suspension of the impugned order which continues to be in operation till now. Head both learned counsel appearing for the parties. The learned counsel for the revision petitioner submits that the Tribunal committed a serious error in setting side the election of the revision petitioner in the absence of any evidence produced before it. He submits that neither any witness was examined nor any record or documents were marked. The conclusions of the Tribunal are also not in conformity with Rule 22 (10) (a) (i) of the Rules framed under the Act which requires that a ballot paper to be declared invalid must, not only bears any mark or writing, but such mark or writing must be relatable to the voter’s identity. The learned counsel points out that the Tribunal has not kept the said requirement in mind and merely because the ballot papers contain some marks such as initials, it has straightaway declared the said ballot papers invalid and consequently declared the second respondent herein elected. The learned counsel also points out that the provisions of the A.P. Co- Operative Tribunal (Procedure) Rules, 1994 which prescribe that the provisions of Civil Procedure Code shall apply wherever the Rules are silent and that the allegations in the election petition, therefore, could not have been held proved in the absence of any evidence. The learned counsel for the second respondent, on the other hand, contends that initials on the ballot papers are clearly relatable to the voters’ identity and such votes were admittedly found to have been cast in favour of the revision petitioner and since the second respondent and the revision petitioner polled six votes each, even if one vote of the revision petitioner is declared invalid, the second respondent has automatically to be declared elected. The learned counsel, therefore, submits that on the face of it and as is evident from the record, the Tribunal has rightly passed the impugned order. It is accepted by both the learned counsel that the term of the cooperative society being five years would expire by 23.10.2010 and in view of the interim order existing in this revision petition from 2006 onwards, the revision petitioner is continuing to discharge the office of president. Rule 22 (1) (a) (i) of the Rules framed under the Act reads as under, “R-22 (1) (10) (a) – At the counting, a ballot paper shall be rejected as invalid by the election officer, if- i) it bears any mark or writing by which the member who voted can be identified; or ii) it does not bear the seal of the society and the signature of the presiding officer; or iii) the mark indicating the vote thereon is placed in such manner as to make it doubtful to know to which candidate the vote has been cast; or is so damaged or mutilated that its identity as a genuine ballot paper cannot be established.” The election petition is clearly based upon the aforesaid Rule. The allegations of the second respondent herein in the election petition in paragraph-7 are as follows, “At the time of counting of votes the petitioner raised objections pertaining to three voted out of 12 votes, which showing the initials of voter on the ballot paper, which were casted in favour of respondent No.2. Some of the voters out of 12 members casted vote to respondent No.2 wrote their names and signatures on the ballot papers but the Election Officer i.e., respondent No.1 instead of rejecting the same counted the said votes in favour of respondent No.2 in spite of objections raised by the petitioner herein.” The election officer who filed counter before the Tribunal has stated that in some ballot papers there were capital letters, but there was clarity with reference to arrow mark on the symbol of the candidate and that no objections were raised regarding the capital letters in the ballot papers at the time of counting. I am, however, unable to appreciate the finding of the Tribunal as the requirement under Rule 22 (1) (a) (i) of the Rules framed under the Act is, not only with reference to a mark or writing appearing on the ballot papers, but such mark or writing must be relatable to the voter’s identity. The latter part of the rule relating to such mark or writing as to the identity of the voter has missed the attention of the Tribunal. In the impugned order there is no discussion nor any reference to the latter part of the requirement of Rule 22 (10) (a) (i) of the Rules. The learned counsel for the second respondent also fairly submits that this is a matter for evidence so as to connect the voter to the ballot paper. Unfortunately neither evidence was led nor any document or records were marked. Under the A.P. Co- Operative Tribunal (Procedure) Rules, 1994 the Tribunal dealing with the appellate and original proceedings is governed by the said procedural rules together with Civil Procedure Code wherever the rules are silent. Rule 15 specifically provides as to how evidence is required to be taken. Proof of allegations in the election petition, therefore, would have been established only by leading evidence and marking documents and in the absence thereof, the initial burden on the second respondent herein cannot be said to have been discharged. The learned counsel for the second respondent herein, therefore, submits that if an opportunity is given to the second respondent herein, he would seek indulgence of the Tribunal to establish the allegations by leading appropriate evidence. The learned counsel for the revision petitioner opposed the said request on the ground that it is the lapse of the second respondent himself and he cannot remedy the lapse by seeking one more opportunity. The learned counsel also states that in any case the term of the cooperative committee would be over by 23.10.2010 and except for academic purpose, no other purpose would be served even if an opportunity is granted to the second respondent. While the said submissions of the learned counsel for the revision petitioner carry substance, I am, however, of the view that in the interest of purity of elections, the second respondent herein who has questioned the election has, perhaps, suffered on account of wrong legal advice and he did not lead evidence in support of his election petition. The said error clearly appears to be bona fide and keeping in view the overall facts and circumstances, I am of the view that the second respondent herein deserves to be given one opportunity to lead evidence in support of the election petition. The impugned order being already held to have been suffered from non-consideration of Rule 22 (1) (a) (i) of the Rules framed under the Act in it’s entirety, it is liable to be set aside and it is accordingly set aside. Irrespective of the term of cooperative committee, since some more time is still available, the Tribunal shall grant one opportunity to the second respondent herein and also to the revision petitioner as well as election officer to lead oral or documentary evidence and shall re-consider the matter afresh and pass appropriate orders in election OP in accordance with law, preferably before the term of the committee expires. The revision petition is accordingly allowed. No costs. Office to send back the records, if any, along with this order to the Tribunal within one week. _________________________ VILAS V. AFZULPURKAR, J Dt. 13.8.2010 KR