Holding

A recount of ballot papers may be ordered only when the election petition sets out specific material facts and prima facie evidence of irregularity or illegality; absent such, the order is illegal.

Summary

The appellant was elected Sarpanch of a Gram Panchayat in Andhra Pradesh by a margin of two votes. The defeated candidate filed an election petition under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994, alleging irregularities in counting, rejection and mixing of votes, but the petition contained vague, non‑specific allegations and lacked material facts. The Election Tribunal ordered a recount, reasoning that no prejudice would be caused and that a narrow margin warranted transparency; the High Court affirmed this order. The Supreme Court held that an order for inspection and recount cannot be made as a matter of course; the petition must set out adequate material facts and prima facie evidence of illegality, and the burden of proof lies on the petitioner. Since these requirements were not met, the recount order was illegal. The appeal was allowed, setting aside the Tribunal and High Court orders and awarding costs to the appellant.

Issues considered

The election petition must contain an adequate statement of material facts alleging irregularity or illegality in vote counting.
Whether prima facie evidence establishing a need for recount was presented.
Whether the doctrine of prejudice or a narrow margin of votes justifies ordering a recount.
The burden of proof for alleged irregularities in the election process.

Legislation cited

Andhra Pradesh Panchayat Raj Act, 1994s. 233

Subjects

election lawrecount of votessecrecy of ballotmaterial factsprima facie evidenceburden of proofAndhra Pradesh Panchayat Raj Act

Judgment

[2009] 15 (ADDL.) S.C.R. 1063

KATTINOKKULA MURALI KRISHNA A
v.

•
.i
VEERAMALLA KOTESWARA RAO & ORS .
(Civil Appeal No. 7701 of 2009)
NOVEMBER 23, 2009
,., B
[D.K. JAIN AND R.M. LODHA, JJ.]

ELECTION LAW:
Re-counting of votes - Panchayat elections - HELD:
Since an order for inspection and re-count of ballot papers
affects the secrecy of ballot, such an order cannot be made as c
a matter of course - Requirements for recount of votes -
Explained - Election· Tribunal as also High Court lost sight of
parameters to be applied while considering the petition seeking
re-counting of votes - Doctrine of prejudice is an irrelevant
factor for ordering re-count - Similarly, narrow margin of votes
D
between returned candidate and election petitioner does not
.... per se give rise to a presumption that there had been an
irregularity or illegality in counting of votes - Order of recount
passed by Election Tribunal, as upheld by High Court, set aside
- Andhra Pradesh Panchayat Raj Act, 1994 - s. 233.
Election petition - Material facts - HELD: Have to be E
stated clearly in the election petition and then proved by cogent
evidence - In the instant case, even the basic material facts
as could have made the Election Tribunal record a prima facie
satisfaction that recount of ballot was necessary, were missing
in the petition. F
EVIDENCE:
·Election petition - Onus to prove allegations of irregularity,·
impropriety or illegality in the election process - HELD: Is on
the election peti~ioner and not on the Election Officer- Election
Law. G
WORDS AND PHRASES:
Expression 'material facts' - Connotation of in the context
of Election law.
1063 H
1064 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Respondent no. 1 filed an election petition u/s 233 of
the Andhra Pradesh Panchayat Raj Act, 1994, challenging
~
.,
the election of the appellant to the post of Sarpanch of the \--

-
Gram Panchayat, primarily on the grounds of illegality is
counting of votes and in rejection of votes polled in his
favour as invalid. The Election Tribunal though found both
B
the material issues in favour of the returned candidate, yet
ordered recounting of votes, as, in its opinion, it would not
cause any prejudice to the returned candidate. The High ...
Court affirmed the order. Aggrieved, the returne~
candidate filed the appeal.
c Allowing the appeal, the Court
HELD: 1.1. The salutary principle laid down in the
Election Law is 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.
D 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. It would
be trite to state that before an Election Tribunal can permit
E scrutiny of ballot papers and order re-count, two basic
requirements must be satisfied, 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
F
support of the allegations, the Tribunal must be, prima
facie, satisfied that in order to decide the dispute and to
Clo complete and effectual justice between thP ;.,arties,
making of such an order is imperatively necessary. [para
11] [1073-A-C]
G Suresh Prasad Yadav Vs. Jai Prakash Mishra & Ors.
- I -

(1975) 4 SCC 822; P.K.K. Shamsudeen Vs. K.A.M. Mappillai
Mohindeen and Ors. (1989) 1 SCC 526; Vadivelu Vs.
Sundaram & Ors. (2000) 8 SCC 355, Mahendra Pal Vs. Ram
Dass Ma/anger & Ors. (2002) 3 sec 457 I M. Chifinasamy Vs.
H
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA1065
KOTESWARA RAO & ORS.
KC. Palanisamy & Ors. (2004) 6 SCC 341, Baldev Singh Vs. .A
,i Shinder Pal Singh & Anr. (2007) 1 SCC 341 and Pothula
Rama Rao Vs. Pendyala Vf)nakata Krishna Rao & Ors. (2007)
11 sec 1, relied on.
1.2. Broadly stated, material facts are primary or basic
-< facts which have to be pleaded by the election petitioner B
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. [Para 11]
[1073-C-D]
' c
1.3. In the instant case, 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 paragraph 4 of the election
petition, containing the grounds of challenge, that the
allegations regarding irregularity or illegality in the D
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. It is pertinent
to note that upon consideration of the evidence adduced E
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 F
polled in favour of the appellant; and on which table the
votes polled in his favour were rejected as invalid.
Precisely for this reason, the Election Tribunal had rightly
declined to take into consideration the evidence adduced
by the election petitioner on the point. It is a ·settled G
principle of law that evidence beyond the pleadings can
neither be permitted to be adduced nor such evidence can
be taken into consideration. [Para 15] [1076-D-H; 1077-A]
1.4. It i.s evident from the observations of the Election
Tribunal that the sole factor which had weighed with it to H
1066 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A order re-count was that no prejudice will be caused to the i.,
appellant if the ballot papers are re-counted. Similarly, the ;
'
factor which weighed with the High Court to affirm the view I
e>f 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 >
B 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
c returned candidate and the election petiti~ner dpes not per
se give rise to a presumption that th.ere had been an
irregularity or illegality in the counting of votes.
' . [Para 15]
[1077-8-E]
2.1. In the first instance, material facts have to be
D stated clearly in the election petition and then proved by
cogent evidence. Undoubtedly, 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 petitio'.'ler and not on the Election Officer, as
held by the authorities below. In the instant case, both the
E forums below have found that material facts were lacking
in the election petition. Having held so, 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
F Election Officer had failed to say anything regarding
corrections and over-writings in Form 26, are neither
factually nor legally sound. [Para 15] [1077-E-G]
2.2. There was no material on record on the basis
...
whereof. the Election Tribunal could have arrived at a
G positive finding that a case to order re-count of the ballot
papers had been· made out. The orders.of re-count passed
by the Election Tribunal was illegal and the High Court
erred in upholding it. The orders passed by the Election
Tribunal and the High Court are set aside. [Para 16 and 17]
[1077-H; 1078-A-B]
H
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA 1067
KOTESWARA RAO & ORS.

. >
(2000) a sec 355
(2002) 3 sec 457
Case Law Reference :
relied on
relied on
Para 9
Para 9
A

(2004) s sec 341 relied on Para 9
(2007) 1 sec 341. relied on Para 9
(2001) 11 sec 1 relied oil Para -9- B
(1975) 4 sec s22 relied on Para 12
(1989) 1 sec 526 relied on Para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
7701 of 2009.
From the Judgment & Order dated 27.09.2007 of the High c
Court of Judicature of Andhra Pradesh at Hyderabad in C.R.P.
No. 3955 of 2007.
C. Mukund, Shashank Sharma, Avneesh Garg, Vandana
Anand, Meera Mathur, Bijoy Kumar Jain, for the Appellant.
CBN Babu, Renu Tyagi, Rameshwar Prased Goyal for the D
"" Respondents.

- The Judgment of the Court was delivered by
D.K. JAIN, J. 1. Leave granted.
2. Challenge in this appeal, by Special Leave, is to the
judgment and order dated 27th September, 2007, rendered by E
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 of2006, ordering re-count of the votes F
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 G
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
H
1068 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A declared to be invalid-. Th~ election petitioner made a request
to the Election Officer, respondent No A 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 difference of votes between the
8 appellant and the election petitio,ner 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,
C 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 offlcials, the 3rd respondent
D 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
E 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 have got only 498 votes. Due to
F 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
G 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 '·:
H .
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA1069
KOTESWARA RAO & ORS. [D.K. JAIN, J.]
representations were made by the election agents of the election A
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 8
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 polled
in favour of the petitioner were mixed in the votes
polled in favour of the 5th respondent?
c
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? o
5. If so, whether the petitioner is entitled for declaration
.. that he has been duly elected as Sarpanc~ of
I
Ravimetla Grama Panchayat?
6. To what relief?"
6. Evidence was adduced by the parties. On behalf of the E
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 F
of the candidates was also exhibited as (Ex.81).
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 G
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 rejectinq a vote, and, therefore,
H
1070 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.

A 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
8
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.81),
by the Election Officer, material for'the present purpose, the
Election Tribunal observed as follows:
c "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 number of
corrections or over writings in Form No.26 and thereby the
Election result is vitiated, nor adduced any cogent evidence
D 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 t_o
have adduced cogent evidence before this Court as to the
reasons why those corrections· and over writings are made
E by him in Ex.8.1. 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-examine~.
F 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
G 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 to indicate the reasons why those corrections and
over-writings were made in Form No.26. The Tribunal held that
H
'

KATTINOKKULA MURALI KRISHNA v. VEERAMALLA 1071
KOTESWARA RAO & ORS. [D.K. JAIN, J.]
since no prejudice would be caused to the appellant and re- A
,J
...... 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 ag~inst the appellant. As regards issues
8
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 C
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 o
crucial document, such as Form No.26, cannot be ignored,
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. E
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 F
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 G
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 merely on the premise
that no prejudice or hardship would be caused to either of the
H
1072 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.

A 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.
B
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 Vadive/u Vs. Sundaram
c & Ors.1, Mahendra Pal Vs. Ram Dass Ma/anger & Ors. 2 , M.
Chinnasamy Vs. K.C. Palanisamy & Ors. 3 , Baldev Singh Vs.
Shinder Pal Singh & Anr. 4 and Pothula Rama Rao Vs.
Pendyala Ven aka ta Krishna Rao & Ors. 5 •
10. Mr. C.B.N. Babu, learned counsel appearing on behalf
D 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.
E
11. Before examining the merits of the issues raised on
behalf of the parties, it would be appropriate to bear in mind the
salutary prin9iple 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
F 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
G which that secrecy can be breached.. has been considered by
1. (2000) a sec 355.
2. (2002) 3 sec 457.
3. (2004) a sec 341.
4. (2007) 1 sec 341.
H 5. (2007) 11 sec 1.
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA1073
KOTESWARA RAO & ORS. [D.K. JAIN, J.]

j.
this Court in several cases. It would be trite to state-that before A
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 B
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 c
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 &_ D
. 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
circumstances in which such a prayer could be considered.
Speaking for the Bench, Sarkaria, J. observed as follows: (SCC
pages 824-825) E
"... 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 F
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
G
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:
6. (1975) 4 sec s22 H
1074 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A (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 ~
B
(3) the court trying the petition is prima facie satisfied that
the making of such a·n order is imperatively necessary to
decide the dispute and to do complete and effectual justice
... _

between the parties."
13. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai
c 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 '
D 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 agent~ to have scrutiny of the ballot
papers at the time of counting. The Tribunal, after recording the
E 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
F been found to be invalid votes. Based on the figures of the re-
count, the election petitioner was declared 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
G 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)
'
- --
7. (1989) 1 sec 526
H
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA1075
KOTESWARA RAO & ORS. [D.K. JAIN, J.]
"13. Thus the settled position of law is that the justification A
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 8
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 C
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 jJble to allege and
substantiate in acceptable measure by means of
evidence that a prima facie case of a high degree of
0
probability existed for the re-count of votes being ordered
by the Election Tribunal 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 E
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 F
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 haveJ;>een ordered, because
the election petition did not contain material facts and did not G
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 wa_s), exposited thus:
" .. .Re-count of votes could be ordered very rarely
H
1076 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A and on specific allegation in the pleadings in the election
petition that illegality or i"egularity 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
B
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
c 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)
D 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
E 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 missing in the
petition. It is pertinent to note that upon consideration of the
F evidence adduced by the parties, the Ele ction 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
G 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
H the pleadings can neither be permitted to be adduced nor such
-.
KATTINOKKULA MURALI KRISHNA v. VEERAMALLA1077
KOTESWARA RAO & ORS. [D.K. JAIN, J.]

evidence can be taken into consideration. Moreover, even the A
~ 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 votes have been found in favour of the appellant. It
! B
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 c
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 D
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 petitior and then proved by cogent evidence. E
Undoubtedly, 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, as held by the authorities below. In the present
case, both the forums below have found that material facts were F
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-
G
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 H
1078 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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 are convinced that
the order of re-count passed by the ElectionTribunal was illegal
and the High Court erred in upholding it.
8 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/-.
R.P. Appeal allowed.
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