*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO : 16093 of 2008 % 30/07/2008 # Elisetty Bheemanna Dora S/o. Narayana Murthy R/o. P.Vemavaram, Samalkota, Mandal, East Godavari District. ..... PETITIONER Vs. $ 1. The District Election Authority and the District Collector, East Godavari District, Kakinada.. 2. The District Panchayat Officer, Kakinada, East Godavari District. 3. The Mandal Development Officer, Samalkota, East Godavari District. 4. The Mandal Revenue Officer/ Tahsildar, Samalkota Mandal, East Godavari District. 5. P.Vemavaram Gram Panchayat, P.Vemavaram, Samalkota Mandal, East Godavari District., rep. by its Executive Officer. 6. Election Officer, P.Vemavaram Gram Panchayat, P.Vemavaram, Samalkota Mandal, East Godavari District. 7. Musireddy Veerabhadra Rao S/o. Yesu R/o. P.Vemavaram, Samalkota Mandal, East Godavari District. 8. Musireddy Venkateswara Rao S/o. Nukaraju R/o. P.Vemavaram, Samalkota Mandal, East Godavari District. 9. Medidi Thammiraju S/o. Thammayya R/o. P.Vemavaram, Samalkota Mandal, East Godavari District. .....RESPONDENTS < Gist > Head Note: ! Counsel for the petitioner : Sri V.V.N.NARAYANA RAO ^ Counsel for the respondents: GP FOR PANCHAYAT RAJ & RURAL DEV. Cases referred : [1] AIR 1976 SC 1886 2 (2004) 6 SCC 341 3AIR 1989 SC 640 4 AIR 2000 SC 3230 5 AIR 1997 SC 3072 6 AIR 2002 SC 1291 7 2006 (5) ALD 12 (SC) 8 1995 Supp (2) SCC 101 9 1998 (4) ALT 495 10 2001 (3) ALD 358 11 (2004) 6 SCC 331 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 16093 of 2008 Between: Elisetty Bheemanna Dora S/o. Narayana Murthy R/o. P.Vemavaram, Samalkota, Mandal, East Godavari District. ..... PETITIONER AND 1. The District Election Authority and the District Collector, East Godavari District, Kakinada.. 2. The District Panchayat Officer, Kakinada, East Godavari District. 3. The Mandal Development Officer, Samalkota, East Godavari District. 4. The Mandal Revenue Officer/ Tahsildar, Samalkota Mandal, East Godavari District. 5. P.Vemavaram Gram Panchayat, P.Vemavaram, Samalkota Mandal, East Godavari District., rep. by its Executive Officer. 6. Election Officer, P.Vemavaram Gram Panchayat, P.Vemavaram, Samalkota Mandal, East Godavari District. 7. Musireddy Veerabhadra Rao S/o. Yesu R/o. P.Vemavaram, Samalkota Mandal, East Godavari District. 8. Musireddy Venkateswara Rao S/o. Nukaraju R/o. P.Vemavaram, Samalkota Mandal, East Godavari District. 9. Medidi Thammiraju S/o. Thammayya R/o. P.Vemavaram, Samalkota Mandal, East Godavari 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 to and in connection with the order in E.O.P.No. 8 of 2006 on the file of the Election Tribunal- cum-Principal Junior Civil Judge, Kakinada, East Godavari District, dated 3-7-2008 and to quash the same, as illegal, arbitrary, contrary to the provisions of A.P. Panchayat Raj ( Conduct of Elections in respect of Members of Gram Panchayats and Mandal Parishad and Members of Zilla Parishad) Rules, 1994 and also against the judicial pronoucements of Hon'ble Supreme Court of India and the Hon'ble High Court of A.P. Counsel for the Petitioner : MR. V.V.N.NARAYANA RAO 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.16093 OF 2008 ORDER : This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 3.7.2008 in Election O.P.No.8 of 2006 on the file of the Court of the Election Tribunal-cum-Principal Junior Civil Judge, Kakinada and to quash the same being arbitrary and illegal. The writ petitioner was elected as Sarpanch of P. Vemavaram Gram Panchayat of Samalkota Mandal, East Godavari District, in the elections held on 2.8.2006. The 9th respondent herein, who was the unsuccessful candidate, filed Election O.P.No.8 of 2006 before the Election Tribunal-cum-Principal Junior Civil Judge, Kakinada to order recounting of all polled votes and also to set aside the election of the writ petitioner and further to declare that the 9th respondent herein/election petitioner was duly elected as Sarpanch of the Gram Panchayat. The Tribunal below, after hearing both the parties, by order dated 3.7.2008 allowed E.O.P.No.8 of 2006 partly and ordered recounting of all the votes polled in the election held on 2.8.2006 fixing the date for recounting as 2.8.2008. The said order is under challenge in this writ petition. In the election petition, the election petitioner/9th respondent herein pleaded that the total polled votes were 1653. However, in the counting for the post of Sarpanch, which was held in two rounds, total 1492 votes were only counted. Thus, the specific case of the election petitioner was that the total votes counted were not tallying with the total votes polled. It was also alleged that the discrepancy was noticed by the election officer after preparing Form-26 Result sheet, however without verifying the votes and without making any enquiry the enquiry officer made corrections in Form-26 as per his whims and fancies and declared the result. According to the election petitioner, if only the counting was done properly, he would have been the successful candidate. The writ petitioner in his counter denied all the allegations and stated that the Polling Officer had conducted the entire election process strictly in accordance with Rules and nobody raised any objection during the course of election. Separate counter was filed by the Election Officer/6th respondent herein explaining that total votes polled were 1652 and that the counting was conducted in two rounds. It is further explained that all the valid votes in favour of each candidate were recorded in Form No.26. While denying the allegation that the entries were made in Form-26 without properly counting the votes, it was stated that no complaint was received by the Election Officer complaining irregularities in the counting process. Both the parties adduced evidence to substantiate their respective claims. Though the election petitioner/9th respondent herein got himself examined as P.W.1, no other oral or documentary evidence was produced on his behalf. On behalf of the respondents, the Election Officer gave evidence as R.W.1 and Exs.B-1 to B-4 documents were marked through him. The returned candidate/writ petitioner did not choose to come into the witness box. On appreciation of the said evidence, particularly certain admissions made by R.W.1 and on a perusal of Exs.B-1 to B-3 documents produced by him, the Tribunal below while observing that unless recounting is done the Court cannot come to a conclusion with regard to the declaration of election allowed the petition in part ordering recounting of all the votes. Assailing the said order, the learned counsel for the writ petitioner while pointing out that except the oral evidence of the election petitioner there was no other evidence to substantiate the allegations in Election Petition, contended that the Tribunal below committed a grave error in directing recounting only on the basis of oral testimony of the election petitioner himself. While relying upon a decision of the Supreme Court in KANHAIYALAL v. MANNALAL AND OTHERS[1], the learned counsel contended that since the election petitioner had miserably failed to discharge the burden placed on him to establish the alleged irregularities, the Tribunal below ought to have dismissed the election petition in limine. In support of the above contention, the learned counsel also cited the decisions in M. CHINNASAMY v. K.C. PALANISAMY[2], P.K.K.SHAMSUDEEN v. K.A.M.MAPPILLAI MOHINDEEN AND OTHERS[3], VADIVELU v. SUNDARAM AND OTHERS[4] and SMT. RAM RATI v. SAROJ DEVI & ORS.[5] and MAHENDRA PAL v. SHRI RAM DASS MALANGER AND OTEHRS[6]. It is true that the burden to establish the alleged irregularities in the counting of votes is upon the election petitioner. However, once the evidence has been adduced by both the parties, the Tribunal has to record its findings on appreciation of the entire evidence available on record. Merely because the burden of proof is on the petitioner, the evidence let in by the other side cannot be ignored even where it probabilises the case set up by the petitioner. Hence, the Tribunal below cannot be said to have committed any error in relying upon the evidence of R.W.1 in arriving at a conclusion that the matter requires recounting of 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[7] 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 a prima facie case was established before the Tribunal warranting a direction for recounting of votes. As noticed above, it was specifically alleged in the election petition that the total votes polled were not counted. It was also alleged that the Election Officer failed to make any enquiry into the discrepancy noticed in the total votes polled and total votes counted and corrected the entries in the Result sheet in From-26. The election officer who is the proper person to explain the allegations himself came into the witness box and deposed as R.W.1. The relevant Result sheets in Form-26 were also marked in evidence through him as Exs.B-1 to B-3. The Election Officer – R.W.1 - in his cross-examination admitted that suspicious votes were found in both first and second round of counting which were not taken into consideration by the time of filling up of Result sheet in Form-26. He also added that the validity of suspicious votes was not decided before making entries in Form-26. Having regard to above admission and having found that there were correction of entries in Exs.B-1 to B-3 which could not be properly explained by R.W.1, the Tribunal below held that a prima facie case was made out to order recounting of votes since the irregularities alleged, if found to be true would materially affect the result of the election. The said conclusion of the Tribunal below since based on appreciation of evidence available on record, no interference is warranted by this Court in exercise of Certiorari jurisdiction even though it is possible to take a different opinion. However, the learned counsel for the petitioner, while placing much reliance upon the endorsement made by the candidates on the reverse of Ex.B-3 to the effect that no irregularity had taken place in the counting, vehemently contended that the election petitioner was estopped form raising any objection subsequently. It is also his contention that the election petitioner having failed to make an application before the Election Officer for recounting as provided under Rule 35 of the Rules cannot maintain an election petition challenging the election of the returned candidate. In support of the above contentions, the learned counsel cited the decision of Supreme Court in M.R. GOPALAKRISHNAN v. THACHADY PRABHAKARAN[8]. The learned counsel also cited the decisions of this Court in T. VENKAT REDDY v. COURT OF THE DISTRICT MUNSIF, ATMAKUR[9] and T. VENKATARAM REDDY v. KIMDI KALA VENKATA RAO[10]. It is true that a remedy is provided under Rule 35 of the Rules. However, as held in CHANDRIKA PRASAD YADAV v. STATE OF BIHAR[11] merely because such an application had not been filed before the Returning Officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting. May be that absence of sufficient explanation for petitioner’s failure to avail such a remedy is a relevant factor for accepting or rejecting the prayer for recounting but it cannot be held that the Tribunal below shall not order recounting even where a prima facie case is made out as to the irregularities in counting. For the aforesaid reasons, I do not find any justifiable reason to interfere with the order under challenge since the same does not suffer from an error of law apparent on the face of the record nor the Tribunal below can be said to have acted without sufficient evidence. Hence, the Writ Petition is dismissed. No costs. ______________ G. ROHINI, J. Dt.30.07.2008 gbs Note:- CC by tomorrow. (B/O) gbs [1] AIR 1976 SC 1886 [2] (2004) 6 SCC 341 [3] AIR 1989 SC 640 [4] AIR 2000 SC 3230 [5] AIR 1997 SC 3072 [6] AIR 2002 SC 1291 [7] 2006 (5) ALD 12 (SC) [8] 1995 Supp (2) SCC 101 [9] 1998 (4) ALT 495 [10] 2001 (3) ALD 358 [11] (2004) 6 SCC 331