K PERISWAMI Vs. T RAMANAIAH

JUDGEMENT

(1.) The petitioner, the successful candidate, contested as a councillorto the Nellore Municipality from Ward No. 38 in an election held on March 18, 1987. The petitioner, first respondent and others have contested the election. The commsioner of the Municipal Councle is the second respondent in the writ petition, is the Election Officer. He appointed zonal Officer and Additional Election Officer, who were examined by the Tribunal below as R. Ws. 2 and 3 respectively, and were put in-charge of the conduct of the election. The counting took place on March 19, 1987. The total votes polled are 2, 630. The valid votes were 2,538. 92 votes were invalid. The petitioner secured 829 votes and the first respondent secured 828 votes. As a result, the second respondent declared the petitioner as having been duly elected as a Councillor. Calling in question of the election, the first respondent filed O. P. No. 32 of 1987 before the Election Tribunal (Subordinate Judge) at Nellore. The first respondent has submitted that the election of the petitioner was materially affected due to the commission of several irregularities in conducting the election and also in counting of votes. The basis is that the Additional Election Officer has improperly rejected valid votes. He picked up one invalid vote from the bundle of invalid votes and put it in the bundle of valid votes of the first respondent. He also picked up one valid vote marked in favour of the first respondent and put it in the bundle of valid votes of the petitioner. It is also submitted that one Smt. D. Sailakumari was impersonated in the election and exercised her franchise in respect of S. No. 747 of the Electoral Roll. The petitioner has denied the allegations. The 1st respondent thereby sought for the relief of re-counting of the ballot papers and to declare that the election of the petitioner is invalid and the first respondent having been duly elected as a Councillor. The first respondent examined himself as P. W. 1 and his counting agent as P. W. 2. The petitioner was examined as R.W.I, the Additional Eleetion Officer and the zonal officer, as stated earlier, were examined as R. Ws. 2 and 3 respectively. Before the trial began, the first respondent had filed an application, i. e., I. A. No. 47 of 1987, for recounting. By an order dated, June 30, 1987 the Tribunal below has , held that merely because there is margin of one vote between the parties, re-counting cannot be ordered, unless the allegations of irregularities are clearly made out and also proved by cogent evidence. Accordingly, the Tribunal rejected the petition for re-counting. On a consideration of the evidence on record at the trial, the learned Subordinate Judge has held that this is the rarest of the rare cases and the petitioner and his witnesses positively and consistently stated that the zonal Officer took out one valid vote from his bundle of valid votes and another invalid vote from the bundle of invalid votes and put them in the bundle of valid votes of the petitioner. This was denied by the zonal officer as well as the petitioner. Thus there is oath against oath. To appreciate the rival contentions and to know the truth of the matter and to render complete justice, the Tribunal feels that it is a fit case where re-counting of votes should be ordered. It is also held that the Tribunal is prima facie satisfied on the evidence that it is a fit matter where re-counting should be ordered. Accordingly, it directed re-counting. Assailing the legality thereof, this writ petition has been filed.

(2.) Sri K. Subrahnmnya Reddy, the learned senior counsel appearing for the petitioner, contends that the Tribunal should have appreciated the evidence on record and found that the allegation of irregularities in the counting was substantiated by acceptable evidence. Till then, the Tribunal below lack's jurisdiction to order re-counting He also contends that the Tribunal has given a finding that the evidence consists of oath against oath and that the first respondent has not proved his case beyond all reasonable doubt. It must be presumed that the Tribunal had accepted that the first respondent had not proved the case. Then, in the absence of any other evidence, the finding that there is prima facie case i s based on no evidence and thereby the jurisdiction to order re-counting is clearly illegal. Sri T. Anantha Babu, the learned counsel appearing for the first respondent, contends that the Tribunal below, in the first instance, when an application was made, has rejected on the ground that there was no evidence. After the trial, the evidence was considered. It is the consistent case of the first respondent that the zonal Officer and the Additional Election Officer have committed irregularity in counting. Thereby, the Tribunal below is well justified in coming to the conclusion that there is prima facie evidence, more particularly when the difference is only one vote and this circumstance itself is sufficient for ordering re-counting.

(3.) In view of the diverse contentions, the question that arises for consideration is whether the order passed by the Tribunal below is vitiated by any manifest error apparent on the face of the record warranting interference.