M. JAGANNADHA RAO, J.

( 1 ) THE question as to what could be treated as material facts for purposes of Sec. 83 (1) (a) of the Representation of People Act, 1951, corresponding to Rule 51 (2) of the A. P. Gram Panchayats (Conduct of elections) Rules, 1978, arises for discussion in this writ petition.

( 2 ) THE petitioner Sri T. Penchalaiah was declared as Sarpanch of the Bogulu gram panchayat, Nellore District by a majority of 27 votes in an election held on 14-3-1988 and one of the four unsuccessful candidates, Smt. Ch. Padmalata (2nd respondent in this W. P.) 61ed the election petition o. P. No. 9 of 1988 before the Election Tribunal-cum-Principal District munsif, Kavali, seeking recount on the ground of several irregularities in the process of counting and the learned tribunal, oy an elaborate judgment dated 18-8-1989, allowed the petition and ordered recount. It is against this order that the successful candidate has preferred this writ petition. The election petition contained certain allegations regarding irregularities in counting and these were disputed in the counter filed by the writ petitioner.

( 3 ) THE election petitioner examined herself as P. W. 1 and one of her counting agents as P. W. 2 and murked Ex. A-1. The election officer examined himself as R. W. 1 while the writ petitioner and one of his counting agents were examined as R. Ws. 2 and 3. The election petitioner filed I. A. 31/89 to recall the election officer (R. W. 1) for cross-examining him with reference to a xerox copy of Form 9 (the declaration of election) which contained different figures than the declaration (Ex B-1) on the basis of which the writ petitioner was declared elected. The I. A. was allowed. As the election officer did not appear, an adverse inference was drawn.

( 4 ) THE tribunal accepted the election petitioner s case of irregularities in counting and allowed the I. A. No. 73/89 filed for ordering recount. The order was passed in the main O. P. itself. Certain other points raised in the counter were rejected.

( 5 ) IN this writ petition, it is mainly argued by Sri P. Krishna Reddi, for the writ petitioner that no recount could be ordered unless the material facts are stated in the election petition in detail as required by law. It is also argued that there is no provision in the rules for ordering recount. It is argued that the Tribunal did not bear in mind the strict principles of pleading as applied to election cases and did not properly appreciate the decision of the Supreme Court in P. K. K. Shamsuddeen vs. K. A M. Mappilai Mohiddin and other cases referred to in the order and that therefore evidence adduced could not be looked into.

( 6 ) ON the other hand, it is argued by Sri M. V. Ramana Reddi for the election petitioner (2nd respondent) that the pleading in the O. P. is sufficiently clear and the finding arrived at on the basis of such pleadings are findings of fact and that the writ petition is liable to be dismissed.

( 7 ) THE point for consideration is : Whether the election petition contains material facts as required by the election law, on the basis of which evidence could be permitted and recount ordered ?

( 8 ) AT the outset, I may state that though the appreciation of evidence by the tribunal could not be said to be defective according to usual standards adopted in a suit, the basic or fundamental mistake of law appears to be that the Tribunal did not realise the extreme strictness with which pleadings are viewed in election cases.

( 9 ) JUST as the provisions of Sec. 83 (1) (a) of the Representation of people Act, 1951 require a concise statement of the material facts on which the petitioner relies, the provision in Rule 52 (2) of the A. P. Gram Panchayat (Conduct of Elections) Rules 1978 requires that the election petition should contain a statement in concise form of the material on which the petitioner relies. Having regard to secrecy of the ballot in the election process, whether it be at the village

Click Here to Read the rest of this document