ORDER
P.S. Narayana, J.
1. The rival parties to the present lis are represented by Sri G. Rama Gopal and Sri Gudapati Venkateswar Rao. The said learned Counsel representing the respective parties made submissions at length virtually touching all the questions involved in the present lis. The simple question in controversy between the parties is the order impugned ordering recounting of votes in E.O.P. No. 60/2001 on the file of Election Tribunal/Senior Civil Judge, Vizianagaram.
2. Smt. Lagudu Anuradha, revision petitioner is 1st respondent in E.O.P. No. 60/ 2001 aforesaid and 1st respondent herein Gorrepotu Chettayyamma is the petitioner in the said E.O.P. In E.O.P. No. 60/2001 the relief prayed for at Para-6 reads as hereunder :
a. Declaring that the Election of the 1st respondent as Member of Z.P.T.C. of Jami Z.P.T.C. as null and void and also invalid;
b. Declaring that the petitioner is duly elected member of Jami Z.P.T.C. by ordering recounting of the ballot papers;
c. ......
d. .........
The pleadings of the respective parties need not be elaborately dealt with in the present context. At Para-5 of the impugned order, the Election Tribunal framed the following Point for consideration :
Whether the petitioner is entitled to the order of re-count of ballot papers as prayed for by her ?
The said Point framed was no doubt discussed at Paras 6 to 11 referring to the evidence of PW-1 to PW-3, RW-1 to RW-5, Ex.A-1 and also Exs.B-1 to B-3. Counting of ballot papers, irregularities relating thereto in general, postal ballot papers and violation of certain circulars in particular are made the grounds of attack and certain reasons had been recorded by the Election Tribunal for ordering recounting. The principal submission is that material particulars as required were neither pleaded nor proved for ordering recounting and on such insufficient material, an order of recounting cannot be made and hence the impugned order cannot be sustained.
3. In T. Penchalaiah v. Election Court, 1990 (1) ALT 669, while dealing with recounting of votes in an election in relation to Grama Panchayat under A.P. Gram Panchayats (Conduct of Election) Rules 1978 it was held at Para-36 as hereunder :
'From the aforesaid rulings, the following principles can be summarized:- Material particulars have to be stated in the petition. What are material particulars differ from case to case but general allegations of irregularities in counting can never furnish a ground for ordering a recount. A half-hearted or partial statement of material particulars may not also be a reason for the Court to order a recount even though it may, in certain circumstances, be sufficient for the Returning Officer to order recount. The petition must specify the 'material' or basis on which his information is based or the record on the basis of which his counting agents have furnished him the information. The existence of any contemporaneous record of the filing of any application before the Returning Officer during the counting would lend support to the particulars stated in the petition. Mere furnishing of minute details so as to satisfy certain requirements of law as decided by the Courts cannot help unless material in support thereof is also set out in the petition. The Court must consider whether the petitioner could not have given other facts, such as the polling booth numbers or the round of counting.'
Strong reliance was placed on the decisions specified hereunder :
Baldev Singh v. Teja Singh, : [1975]3SCR381 , Chandra Singh v. Shivram, : AIR1975SC403 , Jatendra Bahadur v. Krishna Behari, : [1970]1SCR852 , S. Narayanan v. S. Semmalal, : [1980]1SCR571 , Beli Ram v. Jai Behari Lal, : AIR1975SC283 , Ram Avtar v. Ram Gopal, : [1976]1SCR191 , Sumitra Devi v. Sheo Shankar, : [1973]2SCR920 , Dr. Jagat Singh v. Giani Kartar Singh, : AIR1966SC773 , Ram Sewak v. H.K. Kidwai, : [1964]6SCR238 , P.K.K. Shamsuddeen v. K.A. M. Mappilal Mohiddin, : AIR1989SC640 , Shradha Devi v. Krishna Chandra, : [1983]1SCR681 , Arun Kumar Bose v. Mohd Furkan Ansari, : [1984]1SCR118 , Bhabi v. Sheo Govind, : AIR1975SC2117 , Manphul Singh v. Surender Singh, : [1975]2SCR680 , P. Malai Chami v. M.A. Ambalam, : [1973]3SCR1016 , Manphul Singh v. Surinder Singh, : [1974]1SCR52 , Shaik Khasim Bi v. Principal Magistrate (Election Tribunal), : 1999(3)ALD350 (DB), Vanguri Mariamma v. Kandukuri Gangamma, : 2003(3)ALD427 , Surender Kumar v. S.D.O Nagina, : AIR1993All47 , Anjamma v. S. Pushpamma, : 2001(1)ALD77 , M.R. Gopalakrishnan v. Thachady Prabhakaran, 1995 Supp (2) SCC 101, Mahender Pal v. Ram Dass Malanger and Ors., : [2002]2SCR169 , P.H. Pujar v. Kanthi Rajasekhar Kidiyappa and Ors., : [2002]2SCR205 , T.H. Musthaffa v. M.P. Varghese and Ors., : AIR2000SC153 , B. Rajagopala Rao v. N.G. Ranga, : AIR1971SC267 , Harsh Kumar v. Bhagwan Sahai Rawat and Ors., : AIR2003SC3693 , Ragiboyina Bhulakshmi v. Government of Andhra Pradesh and Anr., : 2002(3)ALD462 , T.A. Ahammed Kabeer v. A.A. Azeez and Ors., : [2003]3SCR511 , Vadivelu v. Sundaram, : AIR2000SC3230 , Ram Rati v. Saroj Devi, : [1997]3SCR1050 and N.E. Horo v. Leander Tiru, : AIR1989SC2023 .
4. A.P. Panchayat Raj (Conduct of Election) Rules 1994 were framed in exercise of powers conferred by Sub-section (1) of Section 268 read with Sections 8, 11, 12, 13, 14, 15, 148, 149, 151, 153, 154, 177, 178, 179, 182 and 183 of Andhra Pradesh Panchayat Raj Act, 1994 (Act No. 13 of 1994). Rule 35 of the said Rules dealing with Recount of Votes reads as hereunder :
(1) After such announcement has been made under Sub-rule (7) of Rule 34, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Election Officer for recounting of the votes either wholly or in part stating the grounds on which, he demands such recount.
(2) On such an application being made the Election Officer shall decide the matter and may allow the application in whole or in part or may reject it wholly if it appears to him to be frivolous and unreasonable.
(3) Every decision of the Election Officer under Sub-rule (2) shall be in writing and contain the reason therefore.
(4) If the Election Officer decides under Sub-rule (2) to allot a recount of the votes either wholly or in part he shall--
(a) arrange for the recounting in accordance with Rules 32 and 34.
(b) amend the result sheet in Form 17 to the extent necessary after such recount; and
(c) announce the amendments so made by him.
(5) After the total number of votes polled by each candidate has been announced under Sub-rule (4), the Election Officer shall complete and sign the Result Sheet in Form 17 and no application for a further or second recount shall be entertained thereafter.
A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (G.O. Ms. No. 111, Panchayat Raj, Rural Development and Relief (Elec.III) Department, dated 3-3-1995) were framed in exercise of the powers conferred by Section 233 and Sub-section (1) of Section 268 of the A.P. Panchayat Raj Act, 1994 (Act No. 13 of 1994). Rule 3 of the said Rules reads as hereunder :
(1) The election petition shall be presented within thirty days from the date of the declaration of the result of the election.
Explanation :
(i) If the Court of the Subordinate Judge or the District Munsiff, as the case may be, or the office of the Officer of the Government who is the Election Tribunal is closed on the last day of the thirty days aforesaid, the petition may be presented to the Election Tribunal on the next day afterwards on which such Court or Tribunal is open.
(ii) The petition shall contain a statement in concise form, the material facts on which the petitioner relies and the particulars of any corrupt practices which he alleges and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner prescribed for the verification of pleadings in the Code of Civil Procedure, 1908.
Rule 7 of the Rules aforesaid while dealing with enquiry into an election petition specifies as hereunder :
(i) Every election petition shall be enquired into by the Election Tribunal, as early as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits:
Provided that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him.
(ii) The Election Tribunal shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters:
(a) discovery and inspection;
(b) enforcing the attendance of witness and requiring the deposit of their expenses;
(c) compelling the production of documents;
(d) examining witnesses on oath;
(e) reception of evidence taken on affidavit; and
(f) issuing commissions for examination of witnesses, and may summon and examine suo motu any person whose evidence appears to him to be material.
It may be appropriate to have a look at Rules 12 and 15 of the said Rules, which read as hereunder:
Rule 12 : If in the opinion of the Election Tribunal,
(a) that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or
(b) that any corrupt practice as laid down under Section 211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with consent of the Returned Candidate or his election agent, or
(c) that any nomination has been improperly rejected, or
(d) that the result of the election, insofar as it concerns a Returned Candidate has been materially affected
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other than his election agent, with the connivance of the Returned Candidate, or
(iii) by the improper reception, refusal or rejection of any vote, or the reception of any vote which is void,
(iv) by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act.
(A) The Election Tribunal shall declare the election of the Returned Candidate to be void.
(B) If the Election Tribunal holds the Returned Candidate guilty under Clause (b) and Clause (b)(ii) of this rule, the Election Tribunal shall in addition to declare the election of the Returned Candidate as void, shall also declare that the returned candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order.
Rule 15:
(i) At the conclusion of the inquiry, the Election Tribunal shall declare whether the election of the Returned Candidate or Candidates is void under Rules 12 and 13.
(ii) If he declares the election of the Returned Candidate or Candidates void, he shall further pass an order either;
(a) declaring that any other party to the petition who has under these Rules claimed the seat has been duly elected; or
(b) order a fresh election.
(iii) The order of the Election Tribunal under Sub-rules (i) and (ii) shall be final.
(iv) A copy of every order under Sub-rule (i) or Sub-rule (ii) shall be communicated to the Executive Authority of the Gram Panchayat, Mandal Parishad and Zilla Parishad, as the case may be, and the Election Authority.
It is pertinent to note that Rule 12(B) specifies that if the Election Tribunal holds the Returned Candidate guilty under Clause (b) and Clause (b)(ii) of this rule, the Election Tribunal shall in addition to declaring of the election of the Returned Candidate as void, shall also declare that the Returned Candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order. Likewise, Rule 15(1) specifies that at the conclusion of the inquiry, the Election Tribunal shall declare whether the election of the Returned Candidate or Candidates is void under Rules 12 and 13. Rule 13 of the said Rules reads as hereunder :
'If any person who has lodged a petition, as in addition to calling in question, the election of the Returned Candidate claimed a declaration that he himself, or any other candidate, has been duly elected and the Tribunal is of the opinion
(a) that in fact, the petitioner or such other candidate, received the majority of the valid votes, or
(b) that, but for the votes obtained by the Returned Candidate, by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, the Election Tribunal shall after declaring the elections of the Returned Candidate to be void, declare the petitioner or such other candidate, as the case may be to have been duly elected.
It is pertinent to note that the words '.. .in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits' in Rule 7(i) of the said Rules referred supra, assume some importance. No doubt, the proviso to Rule 7(i) specifies that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him. Rule 7(ii) no doubt specifies that the Election Tribunal shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the matters (a) to (f) mentioned in the said Rule 7(ii).
5. Settlement of Issues or framing Points for consideration is an essential step in an enquiry of election petition for the reason that parties should know on what questions in controversy necessary evidence may have to be let in. Recounting also may be one such Issue or Point in controversy and the Election Tribunal no doubt may pass an order, but only when it had settled all the Issues or Points for consideration and recorded evidence but not otherwise, especially while making such an order in the main Election O.P. itself. Order 14, Rule 1 of the Code of Civil Procedure reads :
'Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.'
Likewise, Order 14, Rule 2 of the Code of Civil Procedure specifies :
'Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.'
It is pertinent to note that Order 14, Rule 2 of the Code of Civil Procedure also is made applicable to Election Tribunals. Strong reliance was placed on Bijoyshree v. Madhusudan, AIR 1986 Orissa 105 and Madhu v. Bhanwari, 2003 AIHC 4064.
6. The Election Tribunal may decide all the issues or questions in controversy or may choose to decide a preliminary question, whether it is a question relating to recounting or otherwise, depending upon the facts and circumstances of a given case and after recording reasons relating thereto. The underlying principle relating to the settlement of issues specified in Order 14 of the Code of Civil Procedure definitely is applicable even in the case of Election Tribunals. Apart from this aspect of the matter, the violation of circulars or guidelines had not been specifically pleaded, but however placing reliance on oral evidence and certain circumstances recounting was ordered by the Election Tribunal. The procedure adopted by the Election Tribunal in making the impugned order in my considered opinion is wholly unsustainable. It is pertinent to note that the impugned order was not made in an interlocutory application moved in this regard, but in the main Election O.P. itself. Hence, viewed from any angle, the impugned order cannot be sustained.
7. In the light of the findings recorded above, the impugned order is hereby set aside and the matter is remitted to the Election Tribunal/Senior Civil Judge, Vizianagaram to frame all issues or Points for consideration and also permit the parties to let in further evidence it the parties choose to do so and decide the same in accordance with law, The discussion relating to evidentiary details is left untouched for the reason that this Court is remitting the matter to the Election Tribunal for the reasons recorded above.
8. The civil revision petition is accordingly allowed to the extent indicated above. Costs made easy.