2009 (11) TMI 1019 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the counting of votes by the Election Officer was according to the rules and regulations.
2. Whether the votes polled in favor of the petitioner were wrongly rejected as invalid or mixed with the votes polled in favor of the appellant.
3. Whether the petitioner is entitled to the relief of recounting of votes including the rejected votes.
4. Whether the petitioner is entitled to the relief of declaring the election of the appellant as void.
5. Whether the petitioner is entitled to be declared as duly elected as Sarpanch.
6. To what relief is the petitioner entitled?

Summary:

Issue 1: Counting of Votes According to Rules and Regulations
The Election Tribunal concluded that the election petitioner failed to make specific allegations regarding the mixing of votes or the rejection of valid votes. The Tribunal noted that the election petition lacked material facts about the Election Officer's failure to mention reasons for rejecting votes. The Tribunal found no non-compliance with Rule 34(4) of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994, which requires an endorsement by the word "Rejected" on every rejected ballot paper.

Issue 2: Rejection and Mixing of Votes
The Tribunal observed that there were no specific allegations in the election petition about which table the votes were mixed or rejected. The Tribunal also noted that the election petitioner did not provide cogent evidence regarding corrections and overwritings in Form No.26 (Ex.B1). Despite this, the Tribunal held that the Election Officer failed to explain the corrections and overwritings in Form No.26, leading to the decision to order a re-count.

Issue 3: Entitlement to Recounting of Votes
The Tribunal answered this issue in favor of the election petitioner, stating that re-counting would re-determine the number of votes polled by the contesting candidates. The High Court affirmed this decision, emphasizing the importance of transparency and the narrow margin of votes.

Issue 4: Declaration of Election as Void
The Tribunal deferred the decision on this issue until after the completion of the re-counting of votes.

Issue 5: Declaration of Petitioner as Elected
Similar to Issue 4, the Tribunal deferred the decision on this issue until after the re-counting of votes.

Issue 6: Relief to Petitioner
The Tribunal's decision to order a re-count was based on the premise that no prejudice would be caused to the appellant. The High Court upheld this view, stating that re-counting would reinforce transparency in the election process.

Supreme Court's Analysis and Decision:
The Supreme Court emphasized that an order for re-counting affects the secrecy of the ballot and cannot be made as a matter of course. The Court highlighted that the election petition must contain specific allegations of irregularity or illegality in counting, supported by evidence. The Court found that the election petition lacked material facts and specific allegations, and the Election Tribunal's decision to order a re-count was based on irrelevant factors such as the absence of prejudice to the appellant and the narrow margin of votes.

The Supreme Court concluded that the Election Tribunal and the High Court erred in ordering a re-count. The appeal was allowed, and the order for re-counting was set aside. The appellant was entitled to costs quantified at Rs. 20,000/-.