THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.23280 of 20007 % Dated 24.09.2008 # Jellella Anjaiah. ….Petitioner $ Lokani Somamma and others. ….Respondents ! Counsel for petitioner: Sri M.Venkatram Reddy ^Counsel for Respondents : G.P. for Panchayat Raj and Rural Development <GIST: > HEAD NOTE: ? Cases referred [1] 2003 (3) ALD 427 2 (2003) 1 SCC 108 3 MANU/SC/0797/1997 4 (2004) 6 SCC 341 5 AIR 1966 SC 773 6 (2007) 1 SCC 341 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 23280 of 2007 Between: Jellella Anjaiah S/o Iddaiah Now Sarpanch of Rajupet Gram panchayat, Thipparthi Mandal, Nalgonda District. ..... PETITIONER AND 1 Lokani Somamma W/o Narsaiah R/o Rajupet Village, Thipparthi Mandal, Nalgonda district (as shown in OP No. 15/06) 2 The Chief Election Officer-cum-District Collector, Nalgonda, Nalgonda district. 3 The Election Officer, Nalgonda for Kanagal Mandal- cum- Revenue Divisional Officer, Nalgonda. Nalgonda District. 4 The Election Officer Sri Gona Mohan Rao, (MPDO., Thipparthy) Thipparthy Mandal, Nalgonda District. 5 The Election Officer (Gundaboina Lingaiah) Lecturer, NG College, 6-7-66, Shivajinagar, Nalgonda Town and District. 6 The Election Officer, Stage-II, Mohd, Shoukat Ali, S/o Ahmed Ali, M.E.O. Thipparthy mandal, Nalgonda District. .....RESPONDENT(S) 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 by calling for the records relating tothe Judgement dated 9-10- 2007 in OP No. 15/06 on the ﬁle of the Junior Civil Judge (election Tribunal in respect of Gram Panchayat, Mandal Parishads and Zilla Parishads under A.P. Panchaytraj Rules, 1995), Nalgonda, Nalgonda District and quash the same by holding the same as illegal, void, without jurisdiction and to pass such other order or orders as the Hon'ble Court may deem fit and proper. Counsel for the Petitioner:MR.M.VENKAT RAM REDDY Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 23280 of 2007 ORDER: Elections to the Rajupet Gram Panchayat, Thipparthi Mandal, Nalgonda District were held on 02.08.2006. The petitioner, 1st respondent and certain others contested for the oﬃce of Sarpanch. The petitioner and the 1st respondent secured 1230 and 1222 votes respectively, and the petitioner was declared as elected. The 1st respondent ﬁled O.P.No.15 of 2006 before the Election Tribunal-cum-Junior Civil Judge, Nalgonda, challenging the election of the petitioner, on several grounds. As may as six material facts were pleaded against the petitioner and it was ultimately prayed that the election of the petitioner be set aside and that the 1st respondent be declared as elected as Sarpanch. The petitioner opposed the election petition, by ﬁling a counter aﬃdavit. Evidence was recorded and through its order, dated 09.10.2007, the Tribunal allowed the O.P. and directed recounting of votes for the oﬃce of Sarpanch for the Gram Panchayat. Necessary directions were issued to the Chief Election Officer-cum- District Collector to appoint an oﬃcer to undertake recounting. It was also directed that the result be announced, depending on the outcome of the recounting. The petitioner challenges the order of the Tribunal. It is urged that there was not even a prayer, much less a plea, in the election petition for recounting of votes and the Election Tribunal grossly erred in directing recounting. The petitioner contends that the order of the Tribunal is beyond the scope of its powers. The 1st respondent ﬁled a counter aﬃdavit, opposing the writ petition. It is stated that the Tribunal had examined the oral and documentary evidence on record and arrived at the conclusion that recounting of votes is necessary. It is also pleaded that the Tribunal had followed the precedents of this Court in ordering recounting. The 1st respondent ﬁled the O.P., challenging the election of the petitioner, by raising several grounds. Her prayer was two-fold viz., to set aside the election of the petitioner and to declare herself as the elected candidate. She deposed as P.W.1 and examined another witness as P.W.2. Her documentary evidence comprised of Exs.P.1 to P.5. The petitioner deposed as R.W.1 and on his behalf, two other witnesses viz., R.Ws.2 and 3 were examined. The Tribunal identiﬁed only one point for its consideration viz., whether the election petitioner is entitled to the reliefs claimed in the petition. The concluding paragraph of the order of the Tribunal reads as under: “In the result, the petition is allowed ordering recounting of votes polled in Sarpanch elections of Gram Panchayat, Rajupeta. The respondent No.2 who is Chief Election Oﬃcer- cum-District Collector, Nalgonda is required to appoint a competent oﬃcial not below the rank of Revenue Divisional Oﬃcer to recount the votes in the presence of the petitioner and respondent No.1 and their counsels and after recounting of the votes, the Oﬃcer who is appointed shall ﬁnish formalities and declare the result as per the provisions of A.P.Panchayat Raj (Conducting of elections of members of Sarpanch of Gram Panchayat, members of Mandal Parishads and members of Zilla Parishads) Rules, 1994. In the recounting if the petitioner secures more votes than the respondent No.1 the election of the respondent No.1 deemed to have been set aside by this Tribunal. There shall be no order as to costs. The entire process shall be completed within one month from the date of this order and the result shall be intimated to this Tribunal.” The only question that arises for consideration in this writ petition is as to whether it was competent for the Tribunal to order recounting, when there is neither a plea nor a prayer in the election petition therefor. Nowhere in the election petition, the 1st respondent herein had emphasized the necessity to undertake any recounting. The prayer is equally silent about the request for recounting of votes. Her grievance was mostly about the manner, in which the election was conducted. She attributed bias to the Stage-I oﬃcer on account of his alleged proximity with the petitioner herein. It was also pointed out that large number of persons were allowed into the counting room, leading to chaos. The fact remains that no prayer was made for recounting. In the election petitions, arising under the Representation of Peoples Act or any other enactment, recounting is treated as an important step. It is necessary that a speciﬁc plea and corresponding prayer must be made in the election petition. An issue or point in relation to recounting must be framed. The party raising the plea has to adduce evidence, to the satisfaction of the Tribunal or the Court. It is only when a strong case is made out for recounting, that it can be ordered. Though the 1st respondent did not raise any plea, nor made any prayer for recounting, much less, adduced any evidence, in this regard, the Tribunal directed recounting. The Tribunal proceeded on the assumption that, recounting can be ordered in the absence of any plea, prayer, or evidence, and it rested its conclusions on the judgment of this Court in Vanguri Mariamma vs. Kandukuri Gangamma and others[1]. The precedent, referred to above, arose out of an O.P., in which the election of a Sarpanch was challenged. It is not clear as to whether any speciﬁc prayer was made in the O.P. for recounting. The Tribunal directed recounting during the pendency of the O.P., and thereafter, disposed of the O.P., on the basis of the result in the recounting. One of the grounds urged before this Court, while challenging the order passed by the Tribunal was that, the election petitioner did not submit any application for recounting, before the Election Officer. After making extensive reference to the judgment of the Supreme Court in Sohan Lal vs. Babu Gandhi[2], this Court took the view that the Tribunal did not commit any error in ordering recounting of votes, during the course of trial. It is diﬃcult to treat the judgment in Mariamma’s case (1 supra), as an authority for the proposition, that the Tribunal can order recounting of votes, in the absence of any speciﬁc plea in the election petition. As a matter of fact, the settled principles are in the other direction. The controversy in Sohan Lal’s case (2 supra), before the Hon’ble Supreme Court was, as to whether it is necessary that election petitioner must have made application for recounting with the Returning Oﬃcer, before he seeks the relief of recounting, in an election petition. On the basis of the judgment in Smt. Ram Rati vs. Saroj Devi[3], rendered by a Bench of two- judges, it was pleaded that unless an application was made before the Returning Oﬃcer for recounting, a party cannot seek the relief of recounting, in an election petition. A Bench comprising of 3 Judges, that decided Sohan Lal’s case, held that the judgment in Ram Rati’s case (3 supra) does not lay the correct proposition of law. It was observed that even where no application is filed before the Returning Officer, for recounting, such a relief can be prayed for, in an election petition. This, however, is not to suggest that, recounting can be ordered by a Tribunal or Court, even where no prayer for that is made. As a matter of fact, the observations of the Supreme Court are to the eﬀect that a plea must be raised and evidence be adduced, for the purpose of recounting. The following sentence makes this amply clear: “…In such a case, the Court or Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties…” The importance of the pleadings, as to material facts in an election petition, was emphasized by the Supreme Court in Chinnasamy vs. K.C. Palanisamy[4]. It was also suggested that the secrecy of ballots must be maintained, as far as possible. The relevant paragraph reads as under: “The question as to what would constitute material facts would, however, depend upon the facts and circumstances of each case. It is trite that an order of re-counting of votes can be passed when the following ingredients are satisﬁed: (1) if there is a prima facie case; (2) material facts therefor are pleaded; (3) the court shall not direct re-counting by way of roving or ﬁshing inquiry; and (4) such an objection had been taken recourse to. The necessity of ‘maintaining the secrecy of ballot papers’ should be kept in view before a re- counting is directed to be made. A direction for re-counting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.” The observations made by the Supreme Court in Jagjit Singh (Dr.) v. Giani Kartar Singh [5] are very relevant and instructive, in the context of the present case. In that case, the recounting was ordered on the basis of a prima facie satisfaction of the Tribunal. The Supreme Court observed; “We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether suﬃcient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justiﬁes his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have ﬁrst enquired whether the application made by the appellant satisﬁed the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisﬁed that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to ﬁnd out some material to support his case that Respondent 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret.” This was followed with approval, by the Supreme Court in its subsequent decisions, including the one, in Chinnasamy’s case (4 supra). As recently as in 2007, the Supreme Court in Baldev Singh v. Shinder Pal Singh[6], took similar view. The election of a candidate signiﬁes the expression of a collective view of the electorate. It can be interfered with, only when strong grounds, recognized in law, are pleaded and proved. Further, secrecy of ballot is an epitome of electoral democracy. It cannot be breached on the basis of assumptions. The party seeking recounting of votes must speciﬁcally plead and make out a case for recounting, by adducing cogent evidence. It is only then, that a Tribunal can consider the feasibility of recounting. The direction as to recounting cannot be justiﬁed, on the basis of the results, that may ensue. On the other hand, independent justiﬁcation must exist, for the very direction for recounting. In the instant case, there was not even plea or prayer for recounting. Hardly any evidence was adduced on that aspect. Hence, the writ petition is allowed, and the order passed by the Tribunal is set aside. There shall be no order as to costs. _________ 24.09.2008 Note: L.R.Copy to be marked. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 23280 of 2007 Date: 24.09.2008 JSU [1] 2003 (3) ALD 427 [2] (2003) 1 SCC 108 [3] MANU/SC/0797/1997 [4] (2004) 6 SCC 341 [5] AIR 1966 SC 773 [6] (2007) 1 SCC 341