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2003 DIGILAW 996 (AP)

Telga Tulsibai v. K. Shakunthala

2003-08-07

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) ELECTIONS to the Gram panchayat of Chinnarasapally, Dahegaon mandal, Adilabad District, were held on 14- 8-2001. The writ petitioner and Respondents 1 to 4 contested for the office of Sarpanch. In all, 557 votes were polled. The writ petitioner and the 1st respondent were declared to have secured 139 votes each. The Election Officer, the 5th respondent, declared the writ petitioner as elected on the basis of toss. ( 2 ) CHALLENGING the election of the writ petitioner, the 1st respondent filed OP no. 9 of 2001 in the Election Tribunal-cum- junior Civil Judge, Sirpur. She alleged that the Election Officer committed several irregularities in the matter of counting of votes. It was her case that the husband of the writ petitioner was the Sarpanch at the relevant point of time, the Election officer stayed in their residence and was under the influence of the writ petitioner and her husband. It was further averred that the votes were not shown to the agents and despite the request made by her, the Election Officer did not undertake recounting of votes. The 1st respondent also alleged that the Election Officer has committed irregularities even by declaring a candidate as Upa Sarpanch without majority. She claims to have objected for adopting the method of toss. She also contended that the Election Officer did not permit her or her agent at the time of undertaking the toss and that the result was declared in a clandestine manner. ( 3 ) THE 1st respondent claimed the relief of recounting of votes, declaration of the election of the writ petitioner as void and of a further declaration that she (1st respondent) was duly elected for the office of the Sarpanch. The writ petitioner contested the matter by filing counter-affidavit. ( 4 ) THE writ petitioner filed counter- affidavit denying the allegations. ( 5 ) EVIDENCE was adduced by both the parties. The 1st respondent examined herself as PW. l and the writ petitioner was examined as RW. l. During the course of her evidence, the 1st respondent had repeated the allegations contained in the election Petition. Most of the allegations related to the irregularity committed by the election Officer. The Election Officer, who was impleaded as Respondent No. 5 in the election Petition, did not choose to examine himself as witness. l. During the course of her evidence, the 1st respondent had repeated the allegations contained in the election Petition. Most of the allegations related to the irregularity committed by the election Officer. The Election Officer, who was impleaded as Respondent No. 5 in the election Petition, did not choose to examine himself as witness. On the basis of the evidence before it, the Election Tribunal passed an order dated 6-6-2002, directing recounting of votes. The writ petitioner challenges the said order in this writ petition. ( 6 ) SRI R. K. Chittaa, learned Counsel for the petitioner, submits that recounting of votes in an election, cannot be ordered by an Election Tribunal, as a matter of course. It is his case that an Election Petition has to raise the plea as regards the irregularities, which are said to have been taken place, and influenced the result of the election and prove the same to the satisfaction of the Court. It is his case that the 1st respondent had failed to discharge the burden in making out a case for recounting. He has relied on several judgments of the Supreme Court as well as this Court. ( 7 ) SMT. S. A. V. Ratnam, learned counsel for the 1st respondent, submits that the 1st respondent has specifically pleaded in her Election Petition the various irregularities that have taken place during the course of counting. It is her case that taking advantage of the rural background of the 1 st respondent, the Election Officer had acted in an authoritarian manner and has manipulated the results. She submits that the various allegations made by the 1st respondent, particularly those against the election Officer, stood unrebutted, since he has not chosen to examine himself. She ultimately submits that no interference is warranted with the order of the Tribunal under challenge. ( 8 ) THE challenge in the writ petition is to an order directing recounting of votes. The writ petitioner and the 1st respondent were declared to have secured 139 votes each. The tie was resolved through toss. ( 9 ) THROUGH a catena of decisions from time to time, the Supreme Court held that recounting cannot be resorted to as a matter of course. The reason being such caution was maintenance of secrecy of ballot which constitutes an important factor of democratic process. The tie was resolved through toss. ( 9 ) THROUGH a catena of decisions from time to time, the Supreme Court held that recounting cannot be resorted to as a matter of course. The reason being such caution was maintenance of secrecy of ballot which constitutes an important factor of democratic process. At the same time purity of election process is also required to be maintained. A deliberate attempt on the part of the Election Officer or a returned candidate to tilt the mandate of an electorate, by resorting to dubious methods, cannot be given a seal of approval by the Court. Therefore, a perfect balance is required to be maintained between these two important aspects. The restriction imposed on recounting is not absolute. It is rather relative. No hard and fast rule can be laid down or discerned as to when and why an order directing recounting can be passed. As is common with any other important principle of law, this also depends on the facts and circumstances of each case, the guiding factors being honouring secrecy of ballots and ensuring purity of elections. ( 10 ) IN Bhabhi v. Sheo Govind, AIR 1974 SC 2117 , the Supreme Court laid down the circumstances under which an order of recounting can be justified. The same was consistently followed in several judgments rendered thereafter. Reference may be made to the judgment in Mahendra Pao v. Ram Dass Malanger, (2002) 3 SCC 457 , where the same were extracted with approval:"the Court would be justified in ordering recount of the ballot papers only where : (1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such on order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. "reference to various other judgments on the same point would render this order prolix. The ultimate test to be borne in mind is as to whether there were sufficient pleadings and adequate evidence justifying the recounting. "reference to various other judgments on the same point would render this order prolix. The ultimate test to be borne in mind is as to whether there were sufficient pleadings and adequate evidence justifying the recounting. ( 11 ) REVERTING to the facts of the case, in the Election Petition, the 1st respondent herein made several allegations. It is true that she did not plead that a particular number of votes polled in her favour was wrongly rejected or any invalid votes are counted in favour of the writ petitioner. The allegations were mostly in the nature of the high-handed and unlawful action on the part of the Election Officer. It is categorically stated in the Election Petition that the Election Officer was under the influence of the husband of the writ petitioner, he did not accede to the request of the 1st respondent to undertake recounting and that he did not allow the 1st respondent or her agent while undertaking toss. She repeated these allegations in her evidence. The Election Officer did not choose to examine himself, though impleaded as a respondent in the Election Petition. In the cross-examination of P. W. 1 on his behalf, hardly anything was elicited to discredit her version. Therefore, the allegations levelled by the 1st respondent remained unchallenged. ( 12 ) IN the State of Andhra Pradesh, certain offices of Sarpanch are reserved in favour of women. In the present case, the reservation was in favour of women belonging to BC category. The Gram panchayat concerned is in an interior place. If the Election Officer acts in a manner giving rise to genuine doubts in the minds of the electorate and the contestants, there is every likelihood of the people loosing confidence in the very system. ( 13 ) THIS Court is aware of the caution sounded by the Supreme Court from time to time that recounting should not be resorted to as a matter of course and the existence of small margin by itself is not a justification to undertake recounting. In most of the cases relied upon by the learned Counsel for the petitioner, the order of recounting was interfered with on the ground that there did not exist specific plea or adequate evidence. The allegations levelled by the 1st respondent in the Election petition were specific. In most of the cases relied upon by the learned Counsel for the petitioner, the order of recounting was interfered with on the ground that there did not exist specific plea or adequate evidence. The allegations levelled by the 1st respondent in the Election petition were specific. The nature of proof as regards such allegations is totally different from the one relating to the validity or otherwise of the individual votes. There were not many occasions when the Courts have to deal with a situation where the irregularity was said to have been committed by the Election Officer, Respondent No. l deposed as PW1, as under: "the Election Officers lodged and boarded in the house of Ex. Sarpanch, who is husband of R1. When I asked (questioned), the election Officers proposed for toss (and) the ex. Sarpanch came out by raising a dispute along with R1. The Election Officers sent us also out. After one hour the Election Officer declared that Rl succeeded the election. When I asked for recounting, the Election officers refused. My votes are mixed up with the votes of Rl as well as in the invalid votes and also some of my votes are mixed up with R2 to R4. Before the declaration of election, the Election Officer sent all our agents out. Even the agents are not permitted to stay till completion of counting even. Hence I pray to recount the votes and declare me as I am duly elected subject to the result of recounting. The election Officers have not obtained our signatures for drawing toss. The entire cross-examination for R5 and R6 (Election Officers) was this :"my agent is one Purushotham. The counting was completed by 4-00 p. m. The election Officers sent us out after 4-00 p. m. , stating that myself and Rl got equal number of votes. I have not seen as how many my votes are mixed to the votes of Rl to R4 are in the invalid votes. It is not true to say that, all the 44 invalid votes are really invalid or not. It is not true to say that election Officers properly conducted the election and that I am deposing false to have wrongful came (gain ). It is not true to say that, all the 44 invalid votes are really invalid or not. It is not true to say that election Officers properly conducted the election and that I am deposing false to have wrongful came (gain ). " ( 14 ) HAVING regard to the nature of allegations contained in the Election Petition and the failure of the Election Officer to refute the same by examining himself, it cannot be said that the 1st respondent did not make out a case for recounting. Absence of transparency in taking up toss would render the entire election process to an empty formality. If at all anything, the recounting would only bring out the true state of affairs, in the facts and circumstances of the case. ( 15 ) ONE of the contentions raised on behalf of the petitioner is that the Trial court did not record sufficient reasons in support of his conclusion. A perusal of the order under challenge discloses that all the contentions were taken note of and the evidence on record was referred to. An elaborate discussion would have ensued, if only the pleadings and evidence related to individual votes or irregularities as to corrupt practices. When the allegations related to the irregularity in the counting process and taking up of toss and the evidence adduced on behalf of the 1st respondent remained unchallenged by the election Officer, the Trial Court was not expected to undertake much of a discussion. It is true that it would have been desirable if some more reasons were added by the trial Court to its conclusion. However, having regard to the facts and circumstances of the case, this Court feels that the form and content of the order under challenge is not such that the order should be set aside. In the process of striking a balance between maintenance of secrecy of votes and ensuring purity of election process in this case, the balance swings towards the latter. ( 16 ) HENCE, this Court does not find any basis to interfere with the order under challenge. The writ petition is accordingly dismissed. No costs.