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2014 DIGILAW 502 (AP)

Uarpual Manuri v. Nunavath Chokli

2014-04-02

C.PRAVEEN KUMAR

body2014
ORDER C. Praveen Kumar, J. 1. This present Civil Revision Petition is filed by the respondent in Election O.P. No. 15 of 2013 under Article 227 of the Constitution of India, assailing the order dated 25.02.2014 passed in I.A. No. 837 of 2013 in E.O.P. No. 15 of 2013 on the file of the Principal Junior Civil Judge, Khammam. The facts in issue are as under: The respondent herein filed the above said O.P. under Section 233 of A.P. Gram Panchayat Raj Act, 1994, read with Rule 12(d)(III)(IV)(A) and Section 13 of Election Tribunal Rules 1995, seeking, (i) recount of the votes polled on 27.07.2013 for the post of Sarpanch of Pangidi Gram Panchayat village of Raghunathapalli Mandal, Khammam District, (ii) to declare the election of respondent No. 1 for the said post as null and void and (iii) to declare the election petitioner as the successful candidate for the said post. In the said O.P. the respondent herein filed I.A. 837 of 2013 seeking recounting of votes for the post of Sarpanch, Pangidi Gram Panchayat, Raghunathapalli Mandal, Khammam District, which was allowed on 25.02.2014. Aggrieved by the same the respondent in I.A. filed the present C.R.P. 2. The learned counsel for the petitioner mainly submits that the Election Tribunal erred in holding that Rules 52 and 58 of A.P. Panchayat Raj (Conduct of Election) Rules 2006 were violated and ordering recount of votes on the said ground is misplaced. He submits that any violation of these rules can be arrived at only after a full-fledged trial in the main E.P. He further submits that the allegations made in I.A. are grave and are bereft of material particulars warranting recount at this stage. 3. Per contra the learned counsel for the respondent submits that the very filing of the C.R.P. under Article 227 of the Constitution of India itself is not maintainable. He further submits that there is no illegality or incorrectness in the order and the same warrants no interference. 4. The material available on record would disclose that the main O.P. was filed for recounting of the votes and to declare the election of the respondent in O.P. as null and void. He further submits that there is no illegality or incorrectness in the order and the same warrants no interference. 4. The material available on record would disclose that the main O.P. was filed for recounting of the votes and to declare the election of the respondent in O.P. as null and void. The averments in the petition disclose that respondent was declared as a winning candidate with a majority of 9 votes and the same was done due mala fide action of the Returning Officer and his counting staff. The averments in the I.A. further disclose that about 76 ballot papers were rejected only with a view to clear the name of the respondent herein. It is said that no specific reasons are assigned while rejecting the same and the counting staff intermingled more than 25 ballot papers polled in favour of the petitioner herein in the bundles of the elected candidate. It is further alleged that the respondent No. 4 in the O.P. i.e., the Returning Officer improperly rejected the votes polled in favour of the petitioner herein and accepted the votes polled in favour of the Returning Candidate. It is further stated in I.A. that the Returning Officer did not furnish the true copy of the ballot copy account in form No. 25 after closure of poll either to the petitioner herein or to his agent which is mandatory, though a demand for the same was made. The respondent No. 1 who filed counter to the said I.A. denied the allegations made and stated that the Election Petition itself has been filed with false and untenable averments. Respondent No. 4 and 5 in the E.O.P. also filed their counters denying the allegations made thereto. 5. The issue as to the maintainability of C.R.P. under Article 227 of the Constitution of India, against an order passed in I.A. in E.O.P. is no more res integra in view of the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2003 (5) ALT 19 (SC) : (2003) 6 SCC 675 . 5. The issue as to the maintainability of C.R.P. under Article 227 of the Constitution of India, against an order passed in I.A. in E.O.P. is no more res integra in view of the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2003 (5) ALT 19 (SC) : (2003) 6 SCC 675 . In the said case, the Apex Court after referring to the amendment made to Section 115 C.P.C. and the case law on the subject summarized the issue as under : (1) Amendment by Act 46 of 1999 with effect from 01.07.2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by C.P.C. Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) .................................. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the courting a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) ........................ (7) ........................ (8) ........................ 6. (6) ........................ (7) ........................ (8) ........................ 6. This court entertained a C.R.P. under Article 227 of the Constitution of India vide C.R.P. No. 5555 of 2007 against an order passed in a I.A., wherein the Tribunal ordered recounting of votes pending the main O.P. In view of the above, the argument of the learned counsel for the petitioner that only a Writ Petition under Article 226 of Constitution of India would lie and that this Court cannot exercise supervisory jurisdiction under Article 227 of the Constitution of India, cannot be accepted. 7. The Apex Court in N. Narayanan v. S. Semmalai and others AIR 1980 SC 206 , while dealing with a relief of recounting held that such allegation must not only be made but also proved by cogent evidence. The Apex Court categorically held that the court would be justified in ordering a recount of ballot papers only where (1) Election Petition contains adequate statements 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 making of such an order is imperatively necessary to decide the dispute and to do complete and effective justice between the parties. 8. In D.P. Sharma v. Commissioner and Returning Officer 1984 Suppl. SCC 157, the Apex Court held that in order to obtain recount of votes a proper foundation is required to be laid by the Election Petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which are in reality caused in favour of the defeated candidate. 9. In P.K.K. Shamsuddeen v. K.A.M. Mappillai Mohindeen (1989) 1 SCC 526 , the Supreme court held as under: .....thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. 9. In P.K.K. Shamsuddeen v. K.A.M. Mappillai Mohindeen (1989) 1 SCC 526 , the Supreme court held as under: .....thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an Election Petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. After referring to various authorities on the subject, the Apex Court in Vadivelu v. Sundaram AIR 2000 SC 3230 case, held at para. 16 as under: The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed 'while counting. The petitioner who seeks recount 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 recount 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. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount 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 recount of votes under such circumstances to do justice between the parties. 10. In Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and others 2010 (1) SCJ 978 : (2010) 1 SCC 466 , the Apex Court held as under : 15. Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and recount of 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. 16. 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. 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. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. 11. In Udey Chand v. Surat Singh and another 2010 (1) SCJ 208 : (2009) 10 SCC 170 : 2011 (1) ALT 12.1 (DN SC) the Apex Court observed that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, the following two basic requirements are to be satisfied: (i) the election petition seeking recount 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, 12. Applying the legal position emanating from the case law discussed above, it is to be seen whether the respondent No. 1 has made out a case for a preliminary order of recount? 13. The main ground on which the Election Tribunal has ordered recounting of the votes was on the basis of averments made in the petition with regard to noncompliance of Rule 58(2) of the Panchayat Raj Act (sic. Rules), non-furnishing of Form 25 to the Agent thereby violating Rule 52 of A.P. Panchayat Raj Rules 2006 and respondent No. 4 not assigning any reasons while declaring the votes as invalid. In view of the above circumstances stated in the affidavit filed in support of I.A., the Election Tribunal being satisfied, ordered recount of the votes. The Tribunal further held that no prejudice would be caused to the elected candidates in ordering recount of the votes. The said order is based only on the averments made in the affidavit. No oral or documentary evidence has been let in to prove that there was violation of Rules 58 and 52 of Panchayat Raj Rules and that the respondent No. 4 has not given any reasons white rejecting the valid votes. The said order is based only on the averments made in the affidavit. No oral or documentary evidence has been let in to prove that there was violation of Rules 58 and 52 of Panchayat Raj Rules and that the respondent No. 4 has not given any reasons white rejecting the valid votes. In fact respondent No. 4 filed a detailed counter to the said I.A. wherein he denied the averments made in the affidavit filed in support of the I.A. He specifically denied the allegation that no opportunity was given to the election agents or to the petitioner in inspecting the ballot papers. On the other hand, he specifically stated that the votes were rejected after putting the same in display of the gathering at the counting centre. He specifically stated in his counter that there was no demand for the supply of details either by the candidate or his agent and everything was kept open to the candidates and their agents. In categorical terms he stated that the declaration of result was quite lawful and without any error. Respondent No. 5 to the E.O.P. viz., the M.P.D.O. also filed Counter denying the allegations made in the affidavit filed in support of the I.A. Therefore the material on record clearly discloses that except the statements made on oath no other material was available before the Tribunal for ordering recount of the votes. Relying upon the averments made in the affidavit filed in support of the petition and without even referring to the counters filed by respondents 4 and 5 the Tribunal ordered recounting of the votes. The finding of the Tribunal that no prejudice would be caused to the returned candidate cannot be a valid reason to order recount at an interlocutory stage. In fact, the prejudice caused to the elected candidate is inherent if the same is done without there being enough material to substantiate the plea of the defeated candidate. Though recounting of votes is permissible in a given case but having regard to the reasons stated above, the order under challenge is liable to be set-aside. In fact, the prejudice caused to the elected candidate is inherent if the same is done without there being enough material to substantiate the plea of the defeated candidate. Though recounting of votes is permissible in a given case but having regard to the reasons stated above, the order under challenge is liable to be set-aside. Accordingly, the Civil Revision Petition is allowed and the order dated 25.02.2014 passed in Election E.O.P. No. 15 of 2013 on the file of the Principal Junior Civil Judge, Khammam, is set-aside directing the Tribunal to dispose of the said E.O.P. as expeditiously as possible preferably within a period of three months from the date of receipt of the copy of this order. As a sequel to it, miscellaneous petitions pending if any, shall stand closed.