This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 3.7.2008 in Election O.P.No.8 of 2006 on the file of the Court of the Election Tribunal-cum-Principal Junior Civil Judge, Kakinada and to quash the same being arbitrary and illegal.

2. The writ petitioner was elected as Sarpanch of P. Vemavaram Gram Panchayat of Samalkota Mandal, East Godavari District, in the elections held on 2.8.2006. The 9th respondent herein, who was the unsuccessful candidate, filed Election O.P.No.8 of 2006 before the Election Tribunal-cum-Principal Junior Civil Judge, Kakinada to order recounting of all polled votes and also to set aside the election of the writ petitioner and further to declare that the 9th respondent herein/election petitioner was duly elected as Sarpanch of the Gram Panchayat. The Tribunal below, after hearing both the parties, by order dated 3.7.2008 allowed E.O.P.No.8 of 2006 partly and ordered recounting of all the votes polled in the election held on 2.8.2006 fixing the date for recounting as 2.8.2008. The said order is under challenge in this writ petition.

3. In the election petition, the election petitioner/9th respondent herein pleaded that the total polled votes were 1653. However, in the counting for the post of Sarpanch, which was held in two rounds, total 1492 votes were only counted. Thus, the specific case of the election petitioner was that the total votes counted were not tallying with the total votes polled. It was also alleged that the discrepancy was noticed by the election officer after preparing Form-26 Result sheet, however without verifying the votes and without making any enquiry the enquiry officer made corrections in Form-26 as per his whims and fancies and declared the result. According to the election petitioner, if only the counting was done properly, he would have been the successful candidate.

4. The writ petitioner in his counter denied all the allegations and stated that the Polling Officer had conducted the entire election process strictly in accordance with Rules and nobody raised any objection during the course of election.

5. Separate counter was filed by the Election Officer/6th respondent herein explaining that total votes polled were 1652 and that the counting was conducted in two rounds. It is further explained that all the valid votes in favour of each candidate were recorded in Form No.26. While denying the allegation that the entries were made in Form-26 without properly counting the votes, it was stated that no complaint was received by the Election Officer complaining irregularities in the counting process.

6. Both the parties adduced evidence to substantiate their respective claims. Though the election petitioner/9th respondent herein got himself examined as P.W.1, no other oral or documentary evidence was produced on his behalf. On behalf of the respondents, the Election Officer gave evidence as R.W.1 and Exs.B-1 to B-4 documents were marked through him. The returned candidate/writ petitioner did not choose to come into the witness box.

7 On appreciation of the said evidence, particularly certain admissions made by R.W.1 and on a perusal of Exs.B-1 to B-3 documents produced by him, the Tribunal below while observing that unless recounting is done the Court cannot come to a conclusion with regard to the declaration of election allowed the petition in part ordering recounting of all the votes.

8. Assailing the said order, the learned counsel for the writ petitioner while pointing out that except the oral evidence of the election petitioner there was no other evidence to substantiate the allegations in Election Petition, contended that the Tribunal below committed a grave error in directing recounting only on the basis of oral testimony of the election petitioner himself. While relying upon a decision of the Supreme Court in KANHAIYALAL v. MANNALAL AND OTHERS, the learned counsel contended that since the election petitioner had mise