TaxTMI 
TaxTMI 
2009 (11) TMI 1019
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....District in the State of Andhra Pradesh was held on 2nd August, 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: ....
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.... 6. To what relief?" 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 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 p....
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.... 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, 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 ....
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....e ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, 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....
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.... votes were treated as valid votes which were cast in favour of the first respondent and that the Returning Officer had not permitted 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.....
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....ings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and 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 ground....