KANDULA NARASIMHA RAO Vs. MADASU UPENDER RAO

JUDGEMENT

(1.) THE elections to Kusumanchi Grampanchayat of Khammam District were held on 2. 8. 2006. The petitioner, the 1st respondent and two others, contested in the election. In the counting, it is emerged that the petitioner secured 1182 votes, the 1st respondent got 1179 votes, and two other candidates got 41 and 56 votes. 161 votes were declared invalid. The petitioner was declared elected. The 1st respondent filed Election O. P. No. 16 of 2006, in the Election Tribunal-cum-Principal Junior Civil Judge at Khammam. He pleaded that several irregularities have taken place, in the process of counting, such as, entrustment of the counting to as many as 15 officials, counting of the votes of those persons who have cast at other places, through postal ballot, difference in the totaling, etc. The petitioner filed counter affidavit, opposing the election Petition. He stated that at the instance of the 1st respondent, the 4th respondent, the Election Officer, stage-2, had undertaken recounting, and that no difference was noticed. The 4th respondent also filed a counter affidavit, denying the allegations, as to the irregularities, during the course of counting. He stated that acceding to the request of the 1st respondent, he has undertaken recounting of votes, wherein, it emerged that the petitioner secured 1187 votes and the 1st respondent secured 1184, and that the results were declared. The Tribunal passed a preliminary order, dated 10. 9. 2008, directing recounting of votes, on condition that the 1st respondent deposits a sum of Rs. 5,000/ -. It was also observed that the result of the recounting is subject to the final result that may be passed in the O. P. The petitioner feels aggrieved by the order passed by the Tribunal.

(2.) SRI N. V. Anantha Krishna, learned counsel for the petitioner, submits that there was absolutely no basis for the Tribunal, to order recounting of votes. He contends that the 4th respondent, who figured as respondent No. 3 in the Election petition and deposed as RW-2, did not have the proper material to assist the court, on account of the fact that the entire material was sealed, as per the directions of the Tribunal. He submits that recounting of votes cannot be directed, as a matter of course, and that strong case was needed, before such a step was taken. Learned counsel submits that the objections raised by the writ petitioner are mostly in relation to permitting the voters to cast their votes, and the same cannot have any bearing on the relief of recounting. Certain other grounds are also urged. Sri G. V. L. Murthy, learned counsel for the 1st respondent, on the other hand, submits that even if the discrepancy in the counter affidavit filed by the respondent No. 4 herein and his evidence is taken into account, a valid ground is made for recounting. He contends that during the course of counting, several irregularities have taken place, and taking the totality of the circumstances into account, the Tribunal has directed recounting.

(3.) SRI G. Elisha, learned counsel for the Grampanchayat, and Sri V. V. Prabhakar rao, learned counsel for the Election Commission, submit that the concerned officials have discharged their duties, in accordance with law, and ultimately, it is for the Tribunal to satisfy itself, as to the merits of the petition. The grounds urged by the 1st respondent in his election petition were two fold; viz; a) the alleged violation of procedure in the counting; and b) taking some invalid votes into account, particularly those said to have been cast by dead persons, or the employees, who cast their votes through postal ballot in other places. The Tribunal examined the question of directing recounting, as a preliminary issue. In the process, it recorded evidence of PWs-1 to 3 and took on record Exs. A-1 to A-7. The petitioner deposed as RW-1. It is true that the recounting of votes would have its own impact, upon the secrecy of ballots, and it can be resorted to, only when a strong case is made out. The existence of a small margin, however, would relieve the burden of the election petitioner, to a limited extent. The requirement under law is almost to the effect that the election petitioner must be able to prima facie satisfy the tribunal, that the difference of votes is explained to the contrary, suggesting that there is possibility of the result being otherwise. In the instant case, the difference is only three votes. The 1st respondent pleaded that his request to the 3rd respondent for recounting was not acceded to. It was alleged that even in the totaling, there is difference of two votes, and as many as 15 persons were entrusted with the duty of counting of votes. The counter affidavit filed by the respondent No. 4 herein, assumes significance. It is silent about the allegations made by the petitioner, as to the participation of the large number of officials in the counting. Secondly, it can be said that the 4th respondent has made the task of the 1st respondent, easier. The reason is that in the result sheet, as pleaded by the 1st respondent, the petitioner is declared to have secured 1182 votes and the 1st respondent 1179 votes. In his counter affidavit, the 4th respondent stated that in the recounting, it emerged that the petitioner secured 1187 votes and the 1st respondent 1184 votes. The relevant portion of the counter affidavit reads as under: