REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7701  OF 2009 [Arising out of Special Leave Petition (Civil) No.20515 of 2007]

KATTINOKKULA  MURALI KRISHNA — APPELLANT

VERSUS

VEERAMALLA KOTESWARA RAO & ORS. — RESPONDENTS

J U D G E M E N T

D.K. JAIN, J.:

Leave granted.  

2. Challenge in this appeal, by Special Leave, is to the judgment  

and order dated 27th September, 2007, rendered by the High  

Court of Judicature of Andhra Pradesh at Hyderabad.  By the  

impugned judgment,  the High Court  has affirmed the order,

dated 10th August,  2007,  passed by the Principal  Junior Civil  

Judge,  Kovvur,  (hereinafter  referred  to  as  “the  Election  

Tribunal”)  in  E.O.P.  No.7  of  2006,  ordering  re-count  of  the  

votes cast in the election for the post of Sarpanch of a Gram  

Panchayat.

3. Briefly  stated,  the  material  facts,  giving  rise  to  the  present  

appeal are as follows:

Election  to  the  post  of  Sarpanch  of  Gram  Panchayat  of  

Ravimetla Village, Nidadavole Mandal, West Godavari District in the  

State  of  Andhra  Pradesh  was  held  on  2nd August,  2006.   The  

appellant,  the  first  respondent  (hereinafter  referred  to  as  the  

“election petitioner”),  and two others contested the election. Upon  

counting of votes, the appellant secured 552 votes and the election-

petitioner, the nearest rival, got 550 votes.  67 votes were declared  

to be invalid.  The election petitioner made a request to the Election  

Officer, respondent No.4 in this appeal, for a re-count of the votes.  

His request was acceded to.  In the re-count, the number of invalid  

votes was reduced to 65 as 2 votes were found to be valid, one each  

cast in favour of the appellant and the election petitioner.  Thus, the  

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difference of votes between the appellant and the election petitioner  

continued  to  be  that  of  2  votes.   Accordingly,  the  appellant  was  

declared as elected.              

4. Being dissatisfied with the election result, the election petitioner  

filed  an  election  petition  before  the  Election  Tribunal  under  

Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994.  

Paragraph 4 of the Election Petition, containing the grounds of  

challenge to the result, is in the narrative form and the relevant  

portion thereof reads thus:

“The 5th respondent is the support (sic supporter) of the  

congress party.  The election officials, the 3rd respondent  

and the police have been managed and so many corrupt  

practices  have been taken place.   The counting of  the  

elections rejection of the votes and bundling of the votes  

were  not  property  (sic  properly)  done.   More  than  50  

votes belonging to the petitioner were wrongly rejected  

as invalid.   Even though, the petitioner and his agents  

strongly opposed the same.  The votes belonged to the  

petitioner  were  wrongly  counted  and  inserted  in  the  

bundles of the 5th respondent.   If  the above illegalities  

and  irregularities  were  not  taken  place,  the  petitioner  

would have got 606 votes and the 5th respondent would  

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have got only 498 votes.  Due to the above illegalities and  

corrupt practices, the result of the election was effected  

and the 5th respondent was wrongly declared as elected  

instead  of  declaring  the  petitioner  as  elected  for  the  

Sarpanch  of  Ravimetla  Village  Grama  Panchayat.   The  

petitioner  also  presented  an  application  before  the  3rd  

respondent  requesting  him  to  make  recounting  of  the  

votes  but  the  same  was  refused  on  2.8.2006.   No  

endorsement was given.”

5. The election petition was contested by the appellant.  Denying  

the allegation  that  the election  officer  had turned down the  

demand for re-count, it  was stated that, in fact, two written  

representations  were  made  by  the  election  agents  of  the  

election petitioner and the same were accepted.  After two re-

counts, the report was compiled in Form No.25 (sic 26) and  

signed  by  the  Returning  Officer.  On  the  pleadings  of  the  

parties, the Election Tribunal framed the following issues:

“1. Whether  the  counting  of  votes  by  the  3rd  

respondent  was  not  according  to  the  rules  and  regulations?  

2. Whether the votes polled in favour of the petitioner  were  rejected  as  invalid  and  whether  the  votes  

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polled in favour of the petitioner were mixed in the  votes polled in favour of the 5th respondent?

3. Whether the petitioner is entitled for the relief of  recounting of votes including the rejected votes?

4. Whether the petitioner is entitled for the relief of  declaration that the election of the 5th respondent is  to be declared as void?

5. If  so,  whether  the  petitioner  is  entitled  for  declaration  that  he  has  been  duly  elected  as  Sarpanch of Ravimetla Grama Panchayat?

6. To what relief?”

6. Evidence was adduced by the parties. On behalf of the election  

petitioner,  five  witnesses,  including  the  election  petitioner  

himself, were examined and certain documents were exhibited.  

The appellant examined four witnesses including himself (RW2)  

and the Election  Officer  (RW1).   Form No.26,  regarding the  

summary  of  the  process  of  votes  polled  in  favour  of  the  

candidates was also exhibited as (Ex.B1).        

7. Upon consideration of the evidence, the Election Tribunal came  

to the conclusion that the election petitioner had failed to make  

any specific allegation as to on which table the votes polled in  

his favour were mixed with the votes polled in favour of the  

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appellant  and on which  table  the  votes  polled  in  his  favour  

were rejected as invalid.  The Election Tribunal also noted that  

admittedly in the election petition the election petitioner had  

not  stated  any  material  facts  regarding  the  failure  of  the  

Election Officer to mention the reason for rejecting a vote, and,  

therefore,  the evidence led by the election  petitioner  in  this  

behalf, being beyond the pleadings, could not be relied upon.  

The  Election  Tribunal  also  rejected  the  contention  of  the  

election  petitioner  that  there  was  non-compliance  with  Rule  

34(4)  of  the  Andhra  Pradesh  Panchayat  Raj  (Conduct  of  

Elections) Rules, 1994, which provides for an endorsement by  

the word “Rejected” by the Election Officer on every rejected  

ballot paper, and thus the election result was not vitiated on  

that  account.   As  regards  the  allegation  of  overwriting  and  

corrections  in  Form  No.26  (Ex.B1),  by  the  Election  Officer,  

material  for  the  present  purpose,  the  Election  Tribunal  

observed as follows:

“In view of the above evidence on record, even though  

the petitioner did not aver the said material fact in the  

Election  Petition  that  the  Election  Officer  had  made  a  

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number of corrections or over writings in Form No.26 and  

thereby the Election result is vitiated,  nor adduced any  

cogent evidence regarding the said corrections made in  

Ex.B1 even though the Ex.B.1 was filed before this Court  

along with the counter of the 1st respondent.  I am of the  

considered opinion that heavy burden was there upon the  

3rd respondent R.W.1 to have adduced cogent evidence  

before this Court as to the reasons why those corrections  

and  over  writings  are  made  by  him  in  Ex.B.1.   But  

strangely  neither  in  the  counter  filed  by  the  3rd  

respondent nor in chief examination affidavit of R.W.1 he  

has stated anything regarding the said corrections  and  

over  writings  made  by  him  in  Ex.B.1.   It  is  also  an  

admitted fact that R.W.1 was not at all cross-examined,  

regarding  the  said  corrections  and  over  writings  as  

appearing on Ex.B.1 but R.W.2 to 4 were cross-examined  

regarding the said corrections and over writings made in  

Ex.B.1.”  

Thus,  although  the  Election  Tribunal  noted  that  there  was  no  

averment  in  the  election  Petition  regarding  corrections  and  over-

writings in the said Form nor any cogent evidence was led by the  

election petitioner in this behalf, yet it came to the conclusion that  

the Election Officer had failed to adduce evidence before the Tribunal  

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to indicate the reasons why those corrections and over-writings were  

made  in  Form No.26.   The  Tribunal  held  that  since  no  prejudice  

would be caused to the appellant and re-counting of all the votes will  

re-determine  the  number  of  votes  polled  by  the  contesting  

candidates, including the election petitioner and the appellant, it was  

a  fit  case  for  re-count  of  ballot  papers.   The  Election  Tribunal  

answered issues No.1 and 2 against the election petitioner and issue  

No.3 in favour of the election petitioner and against the appellant.  

As regards issues No.4 to 6, the Election Tribunal observed that these  

will be answered only after completion of re-counting of votes.

8. Aggrieved by the direction for  re-count  of  ballot  papers,  the  

appellant  preferred  Civil  Revision  Petition  before  the  High  

Court.   As already stated, the High Court  has dismissed the  

revision petition.  The High Court has observed that though it is  

true that re-counting of votes cannot be resorted to as a matter  

of course and every endeavour should be made to protect the  

secrecy of ballots but at the same time suspicion surrounding  

the genuineness and correctness of the figures mentioned in  

the crucial document, such as Form No.26, cannot be ignored,  

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particularly  when the  difference  between  the  successful  and  

unsuccessful candidates is razor thin; viz. two votes; in the re-

counting, two votes, which were initially declared invalid, were  

treated as valid and had those been, counted in favour of the  

election  petitioner,  the  result  would  have  tilted  completely.  

Observing that on account of mere re-counting of votes, the  

appellant  would not be put to any hardship,  rather it  would  

reinforce  the  transparency  in  the  process,  the  High  Court  

affirmed  the  direction  given  by  the  Election  Tribunal  and  

dismissed  the  revision  petition  preferred  by  the  appellant.  

Hence the present appeal.

9. Assailing the decision of the Election Tribunal as also the High  

Court, Mr. C. Mukund, learned counsel appearing on behalf of  

the appellant strenuously urged that the High Court committed  

a serious error  of law in upholding the order passed by the  

Election  Tribunal,  directing  re-count  of  the  ballots.   It  was  

submitted  that  having  decided  the  two  material  issues,  viz.  

issues No.1 and 2, in favour of the appellant, the authorities  

below were not justified in directing a re-count of the votes  

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merely on the premise that no prejudice or hardship would be  

caused to either of the parties by such order of re-count.  It  

was also argued that the High Court committed serious illegality  

in holding that the Election Officer had failed to show as to why  

corrections and over-writings were made by him in Form No.26,  

when admittedly no material facts in this regard were stated in  

the election petition and even the onus to prove the allegation  

was on the election petitioner.  In support of the proposition  

that an order of re-count cannot be on the basis of general and  

bald allegations and the election petition must contain specific  

details regarding illegality or irregularity alleged to have been  

committed, learned counsel relied on the decisions of this Court  

in Vadivelu Vs. Sundaram & Ors.1, Mahendra Pal Vs. Ram  

Dass  Malanger  &  Ors.2,  M.  Chinnasamy  Vs.  K.C.  

Palanisamy & Ors.3, Baldev Singh Vs. Shinder Pal Singh  

& Anr.4 and Pothula Rama Rao  Vs.  Pendyala Venakata  

Krishna Rao & Ors.5.

1 (2000) 8 SCC 355 2 (2002) 3 SCC 457 3 (2004) 6 SCC 341 4 (2007) 1 SCC 341 5 (2007) 11 SCC 1

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10. Mr. C.B.N. Babu, learned counsel appearing on behalf of the  

election petitioner, on the other hand, supporting the decisions  

of  the  Election  Tribunal  and  the  High  Court  submitted  that  

sufficient  material  was  brought  on  record  by  the  election  

petitioner,  on  the  basis  whereof  the  Election  Tribunal  had  

correctly recorded its satisfaction that a case for re-count had  

been made out.   

11. 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 re-count of the 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.   It  would  be  trite  to  state  that  

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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.  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.   

12. In Suresh Prasad Yadav Vs.  Jai Prakash Mishra & Ors.6,   

summarising the principles laid down by this Court from time to  

time in granting prayer for inspection of ballot papers and/or  

re-counting,  a three-Judge Bench of  this  Court  indicated the  6  (1975) 4 SCC 822

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circumstances  in  which  such  a  prayer  could  be  considered.  

Speaking for the Bench, Sarkaria, J. observed as follows: (SCC  

pages 824-825)

“…this Court has repeatedly said, that an order for  inspection  and  recount  of  the  ballot  papers  cannot  be  made as a matter of the course. The reason is two-fold.  Firstly  such  an  order  affects  the  secrecy  of  the  ballot  which  under  the  law  is  not  to  be  lightly  disturbed.  Secondly,  the Rules provide an elaborate procedure for  counting  of  ballot  papers.  This  procedure  contains  so  many statutory checks and effective safeguards against  mistakes  and  fraud  in  counting,  that  it  can  be  called  almost trickery foolproof. Although no hard and fast rule  can be laid down, yet the broad guidelines, as discernible  from the decisions of this Court, may be indicated thus:

The Court would be justified in ordering a 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 an order is  imperatively  necessary  to  decide  the  dispute  and  to  do  complete  and  effectual  justice  between the parties.”

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13. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen &  

Ors.7,  the petitioner contested the election for the post of the  

President of a Panchayat in Tamil  Nadu. In the election, the  

first  respondent  was  declared  elected  and  the  petitioner  

challenged the election on the ground that while counting, the  

Returning Officer had wrongly treated some valid votes cast in  

favour  of  the  petitioner  as  invalid  votes  and  certain  invalid  

votes were treated as valid votes which were cast in favour of  

the  first  respondent  and  that  the  Returning  Officer  had  not  

permitted the petitioner’s agents to have scrutiny of the ballot  

papers at the time of counting. The Tribunal, after recording  

the  evidence  of  all  candidates  and  the  Assistant  Returning  

Officer, ordered re-count of votes. On re-counting of votes, it  

was found that there was no difference in the number of votes  

secured by the petitioner  but insofar as the first  respondent  

was concerned he had secured only 528 votes as against 649  

votes he was originally held to have secured. 121 votes cast in  

his favour had been found to be invalid votes. Based on the  

figures  of  the  re-count,  the  election  petitioner  was  declared  

7  (1989) 1 SCC 526  

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duly elected as he had secured 28 votes more than the first  

respondent on re-count. This order was challenged by the first  

respondent in a civil  revision petition before the High Court.  

The learned Single Judge allowed the revision petition and held  

that the Tribunal had erred in ordering a re-count of the votes  

when the petitioner had not made out a prima facie case for an  

order  of  re-count  of  votes  cast.  The  order  was  challenged  

before this Court. Upholding the view taken by the High Court,  

it was held as under: (SCC p. 531)

“13.  Thus  the  settled  position  of  law  is  that  the  justification for an order for examination of ballot papers  and re-count of votes is not to be derived from hindsight  and  by  the  result  of  the  re-count  of  votes.  On  the  contrary, the justification for an order of re-count of votes  should be provided by the material placed by an election  petitioner on the threshold before an order for re-count 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 re-counting 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  re-count of votes being ordered by the Election Tribunal  

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in the interests of justice, a Tribunal or court should not  order the recount of votes.”

(Emphasis supplied by us)

14. Yet again in Vadivelu’s case (supra), a case pertaining to an  

election for the post of the President of a Village Panchayat in  

Tamil Nadu, the result was challenged on the ground of various  

irregularities  in  voting  and counting.  The difference  of  votes  

secured by the winning candidate and his nearest rival was only  

one  vote.  The  election  petition  by  the  losing  candidate  was  

allowed by the Election Tribunal and a re-count was ordered.  

As  a  result,  the  election  petitioner  got  1002  votes  and  the  

elected  candidate  got  only  975  votes.  Revision  petition  filed  

against the order of the Tribunal was allowed by the High Court  

and  it  was  held  that  a  re-count  ought  not  to  have  been  

ordered, because the election petition did not contain material  

facts and did not make out a prima facie case for re-counting.  

The  election  petition  was,  thus,  dismissed.  Affirming  the  

decision  of  the  High  Court,  a  three-Judge  Bench,  speaking  

through  K.G.  Balakrishnan,  J.  (as  His  Lordship  then  was),  

exposited thus:  

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“…Re-count 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 re-count 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 re-count 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  re-count  of  votes  under  such  circumstances to do justice between the parties.”

(Emphasis  added)

15. Having  viewed  the  matter  in  the  light  of  the  principles  

enunciated above, we are constrained to hold that the Election  

Tribunal as also the High court lost sight of the parameters to  

be applied while considering the petition seeking re-counting of  

votes.  It is manifest from the afore-extracted paragraph 4 of  

the election petition, containing the grounds of challenge, the  

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  

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missing  in  the  petition.   It  is  pertinent  to  note  that  upon  

consideration  of  the  evidence  adduced  by  the  parties,  the  

Election Tribunal had itself observed that the election petitioner  

had failed to state any material facts regarding the failure of  

the Election Officer to mention reasons for rejection of votes  

and further  there  was 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.  Precisely for this reason, and in our view rightly, the  

Election  Tribunal  had declined to take into  consideration the  

evidence adduced by the election petitioner on the point.  It is  

a settled principle of law that evidence beyond the pleadings  

can neither be permitted to be adduced nor such evidence can  

be taken into consideration.  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 the  

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votes have been found in favour of the appellant.  It is evident  

from the  observations  of  the  Election  Tribunal,  extracted  in  

Para 7 above, that the sole factor which had weighed with it to  

order  re-count  was  that  no  prejudice  will  be  caused  to  the  

appellant  if  the  ballot  papers  are  re-counted.   Similarly,  the  

factor which weighed with the High Court to affirm the view of  

the Election Tribunal is that re-counting of votes will reinforce  

the transparency in the process of election, particularly when  

the  margin  of  votes  was  very  narrow.   It  needs  to  be  

emphasised that having regard to the consequences emanating  

from the direction of re-counting, which may even breach the  

secrecy  of  ballot,  the  doctrine  of  prejudice  is  an  irrelevant  

factor  for  ordering  re-count.   Similarly,  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.  

In the first instance, material  facts in this behalf have to be  

stated clearly in the election petition and then proved by cogent  

evidence.   Undoubtedly,  the onus to  prove the allegation  of  

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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, as held by the authorities below.  In  

the  present  case,  both  the  forums  below  have  found  that  

material facts were lacking in the election petition.  Having held  

so,  in  our  view,  the  election  petition  should  have  been  

dismissed  on  this  short  ground  alone.   In  that  view of  the  

matter, the observation of the Election Tribunal, as affirmed by  

the  High  Court,  that  the  Election  Officer  had  failed  to  say  

anything regarding corrections and over-writings in Form 26,  

are neither factually nor legally sound.   

16. We are  of  the  opinion  that  in  the  light  of  the  afore-noted  

factual  scenario  and  the  fact  that  findings  of  the  Election  

Tribunal on issues No.1 and 2 were in favour of the appellant,  

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.  For all these reasons, we  

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are convinced that the order of re-count passed by the Election  

Tribunal was illegal and the High Court erred in upholding it.  

17. In view of the afore-going discussion, the appeal is allowed;  

the order passed by the Election Tribunal ordering re-count of  

the ballot papers, and affirmed by the High Court is set aside.  

The  appellant  shall  be  entitled  to  costs,  quantified  at  

Rs.20,000/-.

.…………………………………J.                     (D.K. JAIN)

                              ..….…………………………….J.                     (R.M. LODHA)

NEW DELHI; NOVEMBER 23, 2009

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