Kattinokkula Murali Krishna vs Veeramalla Koteswara Rao & Ors

3. Briefly stated, the material facts, giving rise to the present appeal are as follows:

6. Evidence was adduced by the parties. On behalf of the election petitioner, five witnesses, including the election petitioner himself, were examined and certain documents were exhibited. The appellant examined four witnesses including himself (RW2) and the Election Officer (RW1). Form No.26, regarding the summary of the process of votes polled in favour of the candidates was also exhibited as (Ex.B1).

7. Upon consideration of the evidence, the Election Tribunal came to the conclusion that the election petitioner had failed to make any specific allegation as to on which table the votes polled in his favour were mixed with the votes polled in favour of the 5 appellant and on which table the votes polled in his favour were rejected as invalid. The Election Tribunal also noted that admittedly in the election petition the election petitioner had not stated any material facts regarding the failure of the Election Officer to mention the reason for rejecting a vote, and, therefore, the evidence led by the election petitioner in this behalf, being beyond the pleadings, could not be relied upon. The Election Tribunal also rejected the contention of the election petitioner that there was non-compliance with Rule 34(4) of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994, which provides for an endorsement by the word "Rejected" by the Election Officer on every rejected ballot paper, and thus the election result was not vitiated on that account. As regards the allegation of overwriting and corrections in Form No.26 (Ex.B1), by the Election Officer, material for the present purpose, the Election Tribunal observed as follows:

Thus, although the Election Tribunal noted that there was no averment in the election Petition regarding corrections and over- writings in the said Form nor any cogent evidence was led by the election petitioner in this behalf, yet it came to the conclusion that the Election Officer had failed to adduce evidence before the Tribunal 7 to indicate the reasons why those corrections and over-writings were made in Form No.26. The Tribunal held that since no prejudice would be caused to the appellant and re-counting of all the votes will re-determine the number of votes polled by the contesting candidates, including the election petitioner and the appellant, it was a fit case for re-count of ballot papers. The Election Tribunal answered issues No.1 and 2 against the election petitioner and issue No.3 in favour of the election petitioner and against the appellant. As regards issues No.4 to 6, the Election Tribunal observed that these will be answered only after completion of re-counting of votes.

8. Aggrieved by the direction for re-count of ballot papers, the appellant preferred Civil Revision Petition before the High Court. As already stated, the High Court has dismissed the revision petition. The High Court has observed that though it is true that re-counting of votes cannot be resorted to as a matter of course and every endeavour should be made to protect the secrecy of ballots but at the same time suspicion surrounding the genuineness and correctness of the figures mentioned in the crucial document, such as Form No.26, cannot be ignored, 8 particularly when the difference between the successful and unsuccessful candidates is razor thin; viz. two votes; in the re- counting, two votes, which were initially declared invalid, were treated as valid and had those been, counted in favour of the election petitioner, the result would have tilted completely. Observing that on account of mere re-counting of votes, the appellant would not be put to any hardship, rather it would reinforce the transparency in the process, the High Court affirmed the direction given by the Election Tribunal and dismissed the revision petition preferred by the appellant. Hence the present appeal.

(Emphasis supplied by us)

(Emphasis added)

17. In view of the afore-going discussion, the appeal is allowed;

the order passed by the Election Tribunal ordering re-count of the ballot papers, and affirmed by the High Court is set aside. The appellant shall be entitled to costs, quantified at Rs.20,000/-.

NOVEMBER 23, 2009 2