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TMI Blog2009 (11) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... st, 2006. The appellant, the first respondent (hereinafter referred to as the election petitioner ), and two others contested the election. Upon counting of votes, the appellant secured 552 votes and the election- petitioner, the nearest rival, got 550 votes. 67 votes were declared to be invalid. The election petitioner made a request to the Election Officer, respondent No.4 in this appeal, for a re-count of the votes. His request was acceded to. In the re-count, the number of invalid votes was reduced to 65 as 2 votes were found to be valid, one each cast in favour of the appellant and the election petitioner. Thus, the difference of votes between the appellant and the election petitioner continued to be that of 2 votes. Accordingly, the appellant was declared as elected. 4. Being dissatisfied with the election result, the election petitioner filed an election petition before the Election Tribunal under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994. Paragraph 4 of the Election Petition, containing the grounds of challenge to the result, is in the narrative form and the relevant portion thereof reads thus: The 5th respondent is the support (sic supporter) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. The importance of maintenance of secrecy of ballots and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted the petitioner's agents to have scrutiny of the ballot papers at the time of counting. The Tribunal, after recording the evidence of all candidates and the Assistant Returning Officer, ordered re-count of votes. On re-counting of votes, it was found that there was no difference in the number of votes secured by the petitioner but insofar as the first respondent was concerned he had secured only 528 votes as against 649 votes he was originally held to have secured. 121 votes cast in his favour had been found to be invalid votes. Based on the figures of the re-count, the election petitioner was declared duly elected as he had secured 28 votes more than the first respondent on re-count. This order was challenged by the first respondent in a civil revision petition before the High Court. The learned Single Judge allowed the revision petition and held that the Tribunal had erred in ordering a re-count of the votes when the petitioner had not made out a prima facie case for an order of re-count of votes cast. The order was challenged before this Court. Upholding the view taken by the High Court, it was held as under: (SCC p. 531) 13. Thus the settled position of law is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties. (Emphasis added) 15. Having viewed the matter in the light of the principles enunciated above, we are constrained to hold that the Election Tribunal as also the High court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. It is manifest from the afore-extracted paragraph 4 of the election petition, containing the grounds of challenge, the allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en proved by cogent evidence. Undoubtedly, the onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer, as held by the authorities below. In the present case, both the forums below have found that material facts were lacking in the election petition. Having held so, in our view, the election petition should have been dismissed on this short ground alone. In that view of the matter, the observation of the Election Tribunal, as affirmed by the High Court, that the Election Officer had failed to say anything regarding corrections and over-writings in Form 26, are neither factually nor legally sound. 16. We are of the opinion that in the light of the afore-noted factual scenario and the fact that findings of the Election Tribunal on issues No.1 and 2 were in favour of the appellant, except for a bald plea that some irregularities and illegalities had been committed in counting, there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding that a case to order re-count of the ballot papers had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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