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Balakrishnan, J.L.....I.........T.......T.......T.......T.......T.......T..J The appellant contested the election for the post of President of Vannavalkudi Village Panchayat, Pudukkottai District in Tamil Nadu. The respondent nos. 1, 2 & 3 were also the candidates for the same election. The polling took place on 12.10.96 and the votes were counted on 14.10.96. The 1st respondent, Sundaram secured 1011 votes and the appellant Vadivelu secured 1010 votes and the 1st respondent was declared elected. The other respondents had secured only lesser number of votes. The appellant filed an Election Petition under Rule 122 of the Tamil Nadu Panchayats (Elections) Rules, 1995 before the District Judge, Pudukkottai, challenging the election of the 1st respondent. In the Election Petition, the appellant contended that certain irregularities were committed while the counting of votes was made. According to the appellant, the names of the dead persons were not deleted from the electoral roll and the first respondent took advantage of this, and despite the objection raised by the agents of the appellant, impersonation had taken place at the time of polling. The appellant also alleged that at the time of counting, a number of valid votes polled in favour of the appellant were treated as invalid by the Returning Officer and though the appellant's agents raised objection, the Returning Officer did not pay heed to it. The appellant further alleged that the counting officers had no knowledge as to which was valid vote and which was invalid one. The counting was done in a hasty manner and the agents of the appellant were not allowed to closely peruse the ballot papers. Certain ballot papers contained thumb impression, but they were rejected as invalid votes. The appellant filed a petition before the Returning Officer for recounting of votes, but that prayer was not allowed and on the above grounds, the appellant filed Election Petition for setting aside the election of the 1st respondent.

P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others (1989) 1 SCC 526 is a case where the petitioner contested the election for the post of President of a Panchayat in Tamil Nadu. In the election, the 1st 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 1st 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 recounting of votes, it was found that there was no difference in the number of votes secured by the petitioner but insofar as the 1st 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 duly elected as he had secured 28 votes more than the 1st respondent on recount. This order was challenged by the 1st respondent in 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 recount of the votes when the petitioner had not made out a prima facie case for an order of recount of votes cast. This Order was challenged before this Court. This Court held in para 13 of the said Judgment as under:-

While counting of votes, the appellants and his agents represented these facts and requested the counting officers and the Returning Officers both orally and in writing to reject these votes polled by these persons. But they refused to consider the said objections. Their such acts are illegal .......................................................... The Counting Officers wantonly put the appellant's valid votes to invalid vote box. The appellant's valid votes were added in the invalid votes. The appellant and his agents strongly objected but the Counting Officers and Returning Officers did not care about the objections. The Counting Officers counted the votes in favour of 1st Respondent.

"Furthermore, the Counting Officers did not know which is valid vote and which is invalid vote. During the polling votes, the Booth Officers received the thumb impression from some voters and gave the ballot papers. The thumb impression ink marks available in the ballot papers. The same votes were rejected and put into the invalid votes. The Counting Officers were newly appointed. They were not properly counting the votes. The Counting Officers were counting the votes very fast and they had not shown the ballots to the agents, even when they raised objection. The Counting Officers threatened the Appellant's agent and told him that they are supreme authority for counting votes. ............................... Finally, the Returning Officer announced that the 1st Respondent had secured 1011 votes. Appellant secured 1010 votes. The difference is only one vote. More than 100 votes were added in the invalid votes by the Counting Officers. Some invalid votes were included to the 1st Respondent which were void and which ought to have been rejected. The Counting Officers and the Returning Officers had not seen the intention of the voters in the ballot."