2009 Supreme(SC) 1760

2009(7) Supreme 478
SUPREME COURT OF INDIA
D.K. Jain and R.M. Lodha, JJ.
Kattinokkula Murali Krishna — Appellant
versus
Veeramalla Koteswara Rao & Ors. — Respondents
Civil Appeal No. 7701 of 2009
[Arising out of Special Leave Petition (Civil) No.20515 of 2007]
Decided on : 23-11-2009

IMPORTANT POINT
1.The onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer.
2. A narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes.
3. Since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course.

Headnote:Andhra Pradesh Panchayat Raj Act, 1994 – Section 233 – Appeal against judgment Passed by High Court affirming the order, passed by Election Tribunal ordering re-count of votes cast in the election for the post of Sarpanch of a Gram Panchayat – Held Election Tribunal as also the High court lost sight of the parameters to be applied while considering the petition seeking re–counting of votes – Allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition – Again election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes – No specific allegation as to on which table the votes polled in favour of the election petitioner 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- Election Tribunal had declined to take into consideration evidence adduced by the election petitioner on the point – Moreover, even the two material issues, viz. as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of votes had been found in favour of the appellant – A narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes-Both the forums below had found that material facts were lacking in the election petition – Having held so, the election petition ought to have been dismissed on this short ground alone – Except for a bald plea that some irregularities and illegalities had been committed in counting, there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding that a case to order re–count of the ballot papers had been made out – Hence held that order of re–count passed by Election Tribunal was illegal and the High Court erred in upholding it – Appeal allowed (Paras 15 to 17)

       Facts of the Case :

        Present Appeal has been filed against judgment Passed by High Court affirming the order, passed by Election Tribunal ordering re-count of votes cast in the election for the post of Sarpanch of a Gram Panchayat.

       Findings of the Court :

        Held Election Tribunal as also the High court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. Allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition. Again election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes.No specific allegation as to on which table the votes polled in favour of the election petitioner 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. Election Tribunal had declined to take into consideration evidence adduced by the election petitioner on the point. Moreover, even the two material issues, viz. as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of votes had been found in favour of the appellant. A narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. Both the forums below had found that material facts were lacking in the election petition. Having held so, the election petition ought to have been dismissed on this short ground alone. Except for a bald plea that some irregularities and illegalities had been committed in counting, there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding that a case to order re-count of the ballot papers had been made out. Hence held that order of re-count passed by Election Tribunal was illegal and the High Court erred in upholding it.