Andhra HC (Pre-Telangana)
Challa Swaroopa vs The District Collector (District ... on 2 June, 2014
Equivalent citations: AIR 2014 HYDERABAD 37, (2014) 4 ANDHLD 585
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.7276 OF 2014
02-06-2014
Challa Swaroopa .Petitioner
The District Collector (District Election Authority), Khammam Town and District
and others..Respondents
Counsel for the petitioner: Sri P. Veera Reddy, Learned Senior
Counsel appearing on behalf of Sri Karri Murali Krishna,
Learned Counsel
Counsel for respondents: GP for Panchayat Raj & Rural
Development
GP for General Administration
Sri P. Raghavender Reddy,
Learned Standing Counsel for ZPPS/MPPS
: Sri K. Rathangapani Reddy
<GIST:
>HEAD NOTE:
?Citations:
1) 2006 (5) ALD 12
2) 2011(3)ALD 509
3) (2010) 1 SCC 466
4) 2013(2) MadLJ 353: (2012) Law Suit (Madras) 1898
5) (2014) 2 ALD 692
6) 2005(3) ALD 102 (SC)
7) AIR 1964 SC 477
8) AIR 1970 All. 1 (FB)
9) AIR 1958 MP 168
10) 2010 (3) CTC 604
11) 2010 (1) CTC 199
12) 2010 (3) CTC 30
13) AIR 1955 SC 233
14) AIR 1958 SC 398
15) AIR 1960 SC 1168
16) AIR 1982 SC 983
17) AIR 1997 P H 164 (DB) = (1997) 115 PLR 687
18) Judgment of the Punjab and Haryana High Court in CWP No.13116 of
2008 dated 12.09.2008
19) 2004 (3) ALD 280 (DB)
20) (1975) 77 Pun LR 661
21) 1981 Pun LJ 202
22) 1994 Pun LJ 40
23) 1994 AIR SCW 2801
24) (1989)1 SCC 101
25) (1996) 6 SCC 44
26) (2006) 1 SCC 275
27) (2005) 6 SCC 404
28) AIR 1968 SC 647
29) (1901) AC 495
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION NO.7276 OF 2014
ORDER:
The petitioner, elected as the Sarpanch of Erlapudi Gram Panchayat of Khammam District, has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order of the Election Tribunal, in I.A. No.840 of 2013 in the Election O.P. No.16 of 2013 dated 25.02.2014, whereby recounting of votes was directed; and respondents 1, 4 to 6 were called upon to produce the election material before it for recounting in open Court on 15.03.2014 at 11.00 A.M. Facts, to the extent necessary, are that elections to the post of Sarpanch of Erlapudi Gram Panchayat were held on 27.07.2013. In the first counting of votes, the petitioner got six votes more than the 6th respondent, with 82 votes treated as invalid. In the second round of counting both the petitioner and the 6th respondent were tied with an equal number of votes, and the invalid votes were held to have increased to 87 and, on a further recount, the petitioner was declared elected as the Sarpanch holding that he had secured two more votes than the 6th respondent. However the total number of invalid votes, in the third round of counting, increased to 99. Aggrieved thereby the 6th respondent filed Election O.P. No.16 of 2013 on the file of the Election Tribunal (Principal Junior Civil Judge) at Khammam on 19.08.2013 seeking an order for recounting of votes; to declare the petitioners election as Sarpanch as null and void; and he be declared as the successful candidate in the election. The 6th respondent filed I.A. No.840 of 2013 in E.O.P.No.16 of 2013, on the same day i.e., 19.08.2013, seeking an interim order for recounting of votes. Counter-affidavits were filed thereto by the petitioner, the Returning Officer, and the Deputy District Election Authority (Mandal Praja Parishad Development Officer). The Election Tribunal, by its order dated 25.02.2014, allowed the said I.A and directed recounting of votes. Aggrieved thereby the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India.
Sri P. Veera Reddy, Learned Senior Counsel appearing on behalf of the petitioner, would contend that the 6th respondent did not raise any plea, in the affidavit filed in support of I.A.No.840 of 2013, regarding violation of any rules; mere absence of prejudice is no ground for grant of interim relief; the Election Tribunal lacks jurisdiction to pass an interlocutory order; the main prayer in the Election O.P and the prayer in the I.A are the same; the relief sought for in the I.A. could not, therefore, have been granted; in allowing the I.A, the Tribunal has virtually allowed a part of the Election O.P. at the threshold, even before commencement of trial and evidence being adduced before it; it is only after a full-fledged trial, and after going through the evidence adduced by the parties, can the Tribunal arrive at a proper conclusion; allegations in the affidavit, filed in support of the I.A, should not have been accepted by the Tribunal as gospel truth; an order for recounting of votes could not have been passed merely on the basis of an affidavit; the Tribunal erred in accepting the 6th respondents claim without even a prima facie being made out; and the judgment of the Supreme Court in Sadhu Singh v. Darshan Singh , and of this Court in Kagitha Bhanu v. Prl. Junior Civil Judge-cum-Election Tribunal, Gudivada, Krishna District were not even referred to. Learned Senior Counsel would also rely on Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao ; R Pandiammal v. S. Muthulakshmi ; and Kommuri Pratap Reddy. v. Ponnala Lakshmaiah .
On the other hand Sri K. Rathangapani Reddy, Learned Counsel for the 6th respondent, would submit that Rules 7 and 12(d)(iii) and (iv) of the A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (hereinafter called the 1995 Rules) have been violated; the procedure prescribed under Rules 52 and 58 of A.P. Panchayat Raj (Conduct of Election) Rules, 2006 (hereinafter called the 2006 Rules) were not followed; Rules 52(2) and 58(3) of the 2006 Rules are mandatory; an Election dispute cannot be adjudicated on mere technicalities; election petitions must be adjudicated early as any delay would result in the democratic rights of the candidates being violated; the only legal issue, which arises for consideration in the present Election O.P, is regarding violation of the Rules; the official respondents have not denied, in their counter-affidavits, that the said Rule has been violated; when there is no dispute on a question of law or of a fact, it is not necessary that a trial should be conducted; a third count of votes is not permissible in view of Rule 60(5); when the votes obtained by two rival contestants are equal, Rule 61 contemplates a lottery to decide who should be declared elected; as there is no dispute that Rules 61 and 60(5) have been violated, the Tribunal was justified in passing the impugned order; and it is evident, from para 9 of the order of the Tribunal, that it does not suffer from an error of law apparent on the face of the record warranting a writ of certiorari being issued. Learned Counsel would rely on Kattinokkula Murali Krishna3; Kagitha Bhanu2; Kailash v. Nanhku ; and Syed Yakoob v. Radhakrishnan .
In its order, in I.A. No.840 of 2013 in EOP No.16 of 2013 dated 25.02.2014, the Election Tribunal held that Rule 58(3) requires the Returning Officer to endorse on every ballot paper, which he rejects, the word rejected and the grounds of rejection in an abbreviated form either in his own hand or by means of a rubber stamp, and to initial such endorsement; the 6th respondent had contended that the Election Officer did not follow the said mandatory provision; she had also contended that, in violation of Rule 58(2), the Returning Officer did not provide a reasonable opportunity either to her or to her agent to inspect the ballot papers before rejecting the same; the margin of votes was only two; after the second round of counting both candidates were declared to have obtained equal votes, and the invalid votes remained as 87; on another recount, while the petitioner was declared elected with a majority of two votes, the invalid votes increased to 99; different results were arrived at on three different occasions; if the exercise of counting had been undertaken properly, the variation may not have occurred; the 6th respondent had also contended that, contrary to the mandatory requirement of Rule 52, the 4th respondent did not furnish Form No.25 either to her or to her agent, after the process of counting, inspite of their demand; there was a prima facie case and a genuine reason for recounting; the Returning Officer did not assign any reasons for declaring a large number of votes invalid; the necessary conditions precedent, for a direction to recount the votes, were satisfied; and the 4th respondent did not follow Rules 52 and 58 of the Rules. Relying on the judgment of the Supreme Court in Sadhu Singh1, and of this Court in Kagitha Bhanu2, the Tribunal held that a prima facie case was made out by the 6th respondent; there were genuine reasons for recounting, to ascertain whether the exercise of recounting had been undertaken properly; and no prejudice would be caused to the writ petitioner if a recount was ordered.
Part V of the Andhra Pradesh Panchayat Raj Act, 1994 relates to the constitution of the State Election Commission, conduct of election and election offences. Chapter I thereof relates to the State Election Commission and conduct of elections. Chapter II relates to election offences. Section 211 thereunder details the corrupt practices for the purposes of the Act. Section 227 details the electoral offences punishable under the Act. Chapter II-A relates to election expenses and Chapter III to miscellaneous election matters. Under Section 233, no election held under the Act shall be called in question except by an Election Petition presented to such authority, and in accordance with such rules as may be made in this behalf.
In the exercise of the powers conferred by Sections 233 and 268(1) of the A.P. Panchayat Raj Act, 1994, the 1995 Rules were made and notified in G.O.Ms.No.111 dated 03.03.1995. Rule 2(2)(i)(a) of the 1995 Rules provides that the Election Tribunal shall be the District Munsif having territorial jurisdiction over the place in which the office of Gram Panchayat is located in respect of the election of members, sarpanches and upa-sarpanches of gram panchayats. Rule 7(i) stipulates that 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. Under the proviso to Rule 7(i) it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him. Under Rule 7(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 witnesses 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 to summon and examine suo motu any person whose evidence appears to him to be material. Under Rule 12(d)(iii) & (iv) if in the opinion of the Election Tribunal the result of the election, in so far as it concerns a Returned Candidate, has been materially affected by any improper reception, refusal, or rejection of any vote, or the reception of any vote which is void; and by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act, the Election Tribunal shall declare the election of the Returned Candidate to be void.
In the exercise of the powers conferred by Section 268 read with various other Sections of the Andhra Pradesh Panchayat Raj Act, 1994, the 2006 Rules were made and notified in G.O.Ms.No.142 dated 03.05.2006. Rule 52 thereof relates to the account of ballot papers and, under sub-rule (1), the Presiding Officer shall, at the close of the poll, prepare a ballot paper account in Form-XXV and place it in a separate cover with the words Ballot Paper Account superscribed thereon. Rule 52(2) requires the Presiding Officer to furnish to every polling agent, present at the close of the poll, a true copy of the entries made in the ballot paper account after obtaining a receipt from the said polling agent therefor and shall also attest it as a true copy. Rule 56 relates to counting of votes and prescribes a detailed procedure therefor. Rule 58 relates to the grounds for rejection of ballot papers. Under Rule 58(1), the Returning Officer is required to reject a ballot paper if the conditions stipulated in clauses (a) to (h) thereunder are satisfied. Rule 58(2) requires the Returning Officer, before rejecting any ballot paper under sub-rule (1), to allow candidates, and their counting agents present, a reasonable opportunity to inspect the ballot paper, but not to handle it or any other ballot paper. Rule 58(3) requires the Returning Officer to endorse on every ballot paper, which he rejects, the word rejected and the grounds of rejection in an abbreviated form either in his own hand or by means of a rubber stamp and to initial such endorsement. Rule 58(4) requires all ballot papers, rejected under Rule 58, to be bundled together. Rule 59 relates to preparation of the results sheet and, thereunder, after completion of counting of all ballot papers contained in all the ballot boxes, the Returning Officer shall make entries in the result sheet in Form-XXVI and announce the particulars. Rule 60 relates to recount of votes and, under sub- rule (1) thereof, after such announcement has been made under Rule 59 a candidate, or in his absence his election agent or any of his counting agents, may apply in writing to the Returning Officer for recounting of the votes either wholly or in part stating the grounds on which he demands such recount. Under Rule 60(2), on such an application being made, the Returning Officer is required to 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 or unreasonable. Rule 60(3) requires every decision of the Returning Officer, under sub-rule (2), to be in writing and to contain the reasons therefor. Under Rule 60(4), if the Returning Officer decides under sub-rule (2) to allow a recount of the votes either wholly or in part, he shall (a) do the recounting in accordance with Rule 56; (b) amend the result sheet in Form-XXVI to the extent necessary after such recount; and (c) announce the amendment so made by him. Under Rule 60(5), after the total number of votes polled by each candidate has been announced under sub-rule (4), the Returning Officer shall complete and sign the result sheet in Form-XXVI; and no application for a further or second recount shall be entertained thereafter. Rule 61 relates to equality of votes and thereunder if, after the counting of the votes is completed, an equality of votes is found to exist between any candidates and the addition of one vote will lead to any of those candidates being declared elected, the Returning Officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received the additional vote. Rule 62 relates to declaration of the result of the election and return of election. Rule 64 relates to publication of results. Rule 65 relates to sealing of used ballot papers and Rule 66 relates to disposal of ballot papers.
I. DOCTRINE OF PREJUDICE AN IRRELEVANT FACTOR:
While allowing I.A.No.840 of 2013, by order dated 25.02.2014, the Election Tribunal held that no prejudice would be caused to the petitioner in ordering recounting of votes. Having regard to the consequences emanating from the direction of re-
counting, which may even breach the secrecy of the 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 was 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. 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. (Kattinokkula Murali Krishna3). Recount of votes cannot be ordered as a matter of course. The petitioner who seeks recount of votes must be able to place on record prima facie proof in support of the allegations made in the election petition. Merely because some serious allegations have been made, it is not proper to order recount of votes on the premise that no prejudice would be caused to the returned candidate by ordering such recount. (Kommuri Pratap Reddy5). Absence of prejudice is not a factor which should have weighed with the Election Tribunal in passing the interim order for recounting of votes.
II. AN ORDER FOR RECOUNTING OF VOTES CANNOT BE PASSED AS A MATTER OF COURSE:
An order for recounting of ballot papers is not to be passed for the mere asking, more so by way of an interlocutory order pending final adjudication of the Election Petition. The submission of Sri P. Veera Reddy, Learned Senior Counsel appearing on behalf of the petitioner, that the 6th respondent did not refer to any specific statutory rule having been violated, in his affidavit filed in support of I.A.No.840 of 2013, necessitating a direction being issued for recounting of votes, cannot be said to be without merit. It cannot, however, be lost sight of that the 6th respondent alleges ex-facie violation of the relevant statutory rules with regards recounting of votes. It is necessary, therefore, to briefly refer to the circumstances under which an order of recount of votes can be passed by an Election Tribunal.
An order for re-count of ballot papers affects the secrecy of the ballot. Such an order cannot be made as a matter of course. The secrecy of the ballot is sacrosanct and inviolable, in the entire election process, except where strong prima facie circumstances, to suspect the purity, propriety and legality in the counting of votes, are made out. Before an Election Tribunal can permit 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 support of the allegations, the Tribunal must, prima facie, be satisfied that, in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is necessary. Broadly stated, material facts are the 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. (Kattinokkula Murali Krishna3).
Where it is manifest, from the election petition containing the grounds of challenge, that the allegations regarding irregularity or illegality in counting of votes are vague, and 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, no order for recount can be passed. (Kattinokkula Murali Krishna3). Secrecy of the ballot is sacrosanct in a democracy, and the election petitioner has to establish the irregularities and illegalities committed in the process of counting. Even if certain allegations are made in the election petition regarding such irregularities, the Court can consider directing recounting of votes only if they are proved by cogent and convincing evidence. (R Pandiammal4). Ends do not justify the means. In a given case even if, on a recount, the allegations of the election petitioner were found correct, unless the order of recount satisfies the legal parameters, the same cannot be sustained in law. (Kagitha Bhanu2).
While Sri P. Veera Reddy, Learned Senior Counsel appearing on behalf of the petitioner, would contend that trial in the election petition has not commenced and, even before evidence was adduced by parties on either side, the Election Tribunal had passed an interlocutory order directing recounting of votes which, in effect, amounts to allowing the Election Petition in part, Sri K.Rathangapani Reddy, Learned Counsel for the 6th respondent, would submit that, unlike in Civil Suits, the trial in an Election Petition commences from the date of filing of the Election Petition itself and not when evidence is adduced by the parties.
In a Civil Suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to the trial or for making the case ready for trial. This general rule is not applicable to the trial of election petitions. In election petitions, all proceedings commencing with the presentation of the election petition, and upto the date of decision therein, are included within the meaning of the word 'trial'. The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (Kailash6). The word 'trial', undoubtedly, has two meanings. It may mean the trial of a controversy that arises from an issue. It may equally mean the trial of an election petition covering the entire process of the litigation from its first seisin by the tribunal (or the Court) till its disposal and would include all the matters even prior to the hearing of the election petition. The matters relating to service of summons, calling for and finalizing the pleadings and settling the issues are all constituent stages of the trial. (Kailash6;
Duryodhan v. Sitaram ; and Hari Vishnu Kamath v. Election Tribunal, Jabalpur ).
While proceedings in an Election Petition, undoubtedly, commence with the presentation of the Election Petition, all proceedings thereafter till the date of the decision, would fall within the meaning of the word trial. That may not, by itself, justify an Election Tribunal passing an interlocutory order at the very inception directing recounting of votes unless it is satisfied, on the basis of evidence adduced before it, that a case for directing recount of votes has been made out by the election petitioner. Mere assertions in the affidavit would not suffice and, in addition thereto, sufficient proof of the allegations made in the election petition must be placed, and evidence adduced in this regard, before the Election Tribunal by the person seeking recounting of votes.
It is no doubt true that the Election Tribunal has recorded its prima facie satisfaction that there were genuine grounds for recounting to ascertain whether the counting has been done properly or not. The Election Tribunal has also referred to various Rules in support of its prima facie conclusion that recounting of votes is necessary more so as, on three different occasions, the Returning Officer had arrived at three different results and the number of invalid votes also varied from one count to the other. The Election Tribunal has also observed that the statutory rules, in declaring certain votes to be invalid, was not adhered to by the Returning Officer. There is considerable force in the submission of Sri K. Rathangapani Reddy, Learned Counsel for the 6th respondent that exercise of jurisdiction by the High Court, under Article 226 of the Constitution of India, is only in exceptional circumstances; there must be an error apparent on the face of record or a patent error and it must be shown that there is lack of jurisdiction or improper exercise of jurisdiction on the part of the Tribunal/Court; the High Court, exercising supervisory jurisdiction, will neither examine the merits and demerits of the case nor would it reappreciate the findings of the lower Court/Tribunal or evaluate the evidence or correct errors by drawing inferences; and the power of the High Court can be invoked only when there is failure of justice or grave injustice has occasioned. (R Pandiammal4; The Governing Council of American College, Madurai v. Dr.M. Davamani Christober ; Madras Gymkhana Club and others v. K.C. Sukumar ; Nakka Markandayalu v. Estate Officer-cum-Deputy Collector (Revenue), Yenam, Pondicherry ).
It is also true that a writ of certiorari can be issued only for correcting errors of jurisdiction committed by inferior courts or tribunals i.e., in cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction; an error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be; the adequacy or sufficiency of evidence led on a point, and the inference of fact to be drawn from the said finding, are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a Writ Court; and it is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised. (Syed Yakob7; Hari Vishnu Kamath v. Ahmad Ishaque ; Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam and Kaushalya Devi v. Bachittar Singh ). Even a prima facie finding of fact may not justify interference in Certiorari proceedings under Article 226 of the Constitution of India, save a finding based on no evidence or one which suffers from perversity.
It is wholly unnecessary for this Court to delve on this aspect any further as a Writ of Certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals or in case orders are passed, by inferior Courts or Tribunals, without or in excess of their jurisdiction. The question which necessitates examination is whether the Election Tribunal has been conferred the power to pass an interlocutory order at the very inception, which has the effect of allowing the Election Petition in part, even before parties to the Election petition have adduced evidence in the election O.P. It is necessary to bear in mind that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it, Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. (Jyoti Basu v. Debi Ghosal ; Sham Lal v. State Election Commission ).
III. THE ELECTION TRIBUNAL, CONSTITUTED UNDER THE A.P. PANCHAYAT RAJ ACT, 1994, HAS NOT BEEN CONFERRED POWER TO PASS AN INTERLOCUTORY ORDER OF THE NATURE PASSED IN THE SUBJECT ELECTION PETITION:
Provisions contained in Part IX of the Constitution generally, and Article 243-K in particular, shows that the Legislature of State has been vested with the power to make laws with respect to all matters relating to or in connection with elections to the Panchayats. With a view to avoid judicial interdiction in the process of election, a constitutional bar has been imposed against entertaining any petition involving a challenge to the validity of laws relating to delimitation of constituencies. At the same time, it has been made clear that no election to any Panchayat shall be challenged except by way of an election petition presented to an authority which is constituted by or under any law made by the State Legislature. In order to provide a forum for adjudication of election disputes, comprehensive provisions have been made in the A.P. Panchayat Raj Act, 1994 and the Rules made thereunder. The entire gamut of challenge to the election is regulated by statutory provisions, none of which confer power upon the Election Tribunal to pass an interim order at the very inception. Prohibitive provisions contained in Article 243-O, and absence of any provision in Part IX of the Constitution or the 1994 Act or the Rules made thereunder empowering the Election Tribunal to pass an interim order in an Election Petition, gives a clear indication of the legislative intendment, namely, not to allow any obstruction in the process of elections or the implementation of the will of the people which is reflected in the result of the elections. If the Legislature or the rule making authority had so desired nothing prevented it from conferring statutory power upon the Election Tribunal to grant interim relief of stay or injunction or a restraint order during the pendency of the election petition. The only mechanism by which an elected Sarpanch can be divested of his office is by a final verdict of the Election Tribunal. While the Election Tribunal can make an appropriate order after evidence is adduced and before final adjudication, it has no power to pass injunction/stay orders. (Sham Lal17; Sukhdev Singh v. State of Punjab ).
In Kummari Ramulu v. Gangaram Penta Reddy the question which fell for consideration, before a Division Bench of this Court, was whether, after a period of two years from the date of filing of an election before the Election Tribunal, an application could be filed by the election petitioner to amend the name of the third respondent in the election petition. After referring to Rule 7(1) & (2) of the 1995 Rules, the Division Bench held:
The powers which the Election Tribunal has got while trying election petition, which are vested in a Court while trying the suit under the Code of Civil Procedure, are only for discovery and inspection, enforcement of attendance of witness and requiring deposit of expenses, compelling production of documents, examining witnesses on oath, reception of evidence taken on affidavit and issuing commission for examination of witnesses. Nowhere the rule makes a provision that Election Tribunal shall have the power to permit amendment of election petition or addition, substitution or deletion of parties, which is a specific power available to a Civil Court while trying a suit under the Code of Civil Procedure. Law enjoins upon trial of election petition expeditiously. That being the purpose, the Legislature in its wisdom rightly conferred specific powers on the Election Tribunal while trying election petition, which are enjoined upon a Civil Court while trying civil suit, and not all the powers exercisable by a Civil Court as provided under the Code of Civil Procedure. That being the purpose, it has to be assumed that the powers, which are not mentioned in the rules, cannot be exercised by the Election Tribunal. Moreover, power to permit addition of a party after the period of limitation is such a power that can be exercised only when it is specifically conferred on the Tribunal. For that a Division Bench of this Court in Beerapalli Swaininatha Janaki Venkata Ramana Reddy v. Attkuri Aimni Raju and others, ILR 1971 AP 277, while dealing with the question of power of Election Tribunal in ordering transposition of party under Order I, Rule 10 of the Code of Civil Procedure while trying election petition under the Panchayat Samithis and Zilla Parishads Act, 1959, held that such a power is not conferred on the Tribunal and that the Tribunal can exercise only those powers which were conferred upon it. . (emphasis supplied) While stipulating the manner in which every election should be enquired into by the Election Tribunal, Rule 7(1) & (2) of the 1995 Rules make no reference to Order 39 of the Code of Civil Procedure. An Election Tribunal is a specially constituted Court of limited jurisdiction and has no authority to pass any order outside those limits. In the absence of any specific provision to the contrary, an Election Tribunal has no inherent jurisdiction like that vested in an ordinary Civil Court. The Election Tribunal must be held to have out-stepped the limits of its jurisdiction in granting the application for interim relief as no law has vested such a jurisdiction in it. (Kundan Singh v. Executive Magistrate, 1st Class", Barnala ; Kartar Singh v. Sub-Divisional Officer, Rampura Phul ; Bhupinder Singh v. State of Punjab ; and Sukhdev Singh18; Sham Lal17). There is no power under the Act or the Rules to grant any interim relief or even an ad interim relief. Only a final relief can be granted. (Sham Lal17; Morgan Stanley Mutual Fund v. Kartick Das ). If the jurisdiction of the Tribunal to grant relief is confined to the cases mentioned under Rule 12 of the 1995 Rules, an interim order for recounting of votes cannot be passed even before evidence is adduced, by parties on either side, in the Election O.P. The impugned order passed at the very inception in I.A. No.840 of 2013, filed on the very same day on which Election O.P. No.16 of 2013 was presented before the Election Tribunal on 19.08.2013, even before evidence has been adduced by parties, must be held to suffer from inherent lack of jurisdiction. This does not mean that the Tribunal is precluded from directing recount of votes after the parties to the Election Petition have adduced evidence either oral or documentary or both.
Sri K. Rathangapani Reddy, Learned Counsel for the 6th respondent, would place reliance on Kagitha Bhanu2, in support of his submission that the Election Tribunal has the power to pass an interlocutory order for recount of votes. In Kagitha Bhanu2, this Court held that an order of recount of votes has to stand or fall on the nature of the averments made in the election petition, and the material produced in support thereof before the order of recount is made, and not from the result emanating from the recount of votes; a preliminary order, directing recount, must satisfy two tests; the petition for setting aside an election should contain adequate statement of the material facts on which the election petitioner relies in support of his case; and the Election Tribunal should be, prima facie, satisfied that, in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The question whether or not the Election Tribunal has the jurisdiction to pass an interlocutory order for recount of votes, even before evidence has been adduced in the Election Petition by the parties thereto, did not arise for consideration in Kagitha Bhanu2; Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are not authoritative. (Municipal Corporation of Delhi v. Gurnam Kaur ). It is not everything said by a Judge, while giving judgment, that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio, and not every observation found therein nor what logically follows from the various observations made in the judgment. The enunciation of the reason or principle, on which a question before a court has been decided, is alone binding as a precedent. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case, or is put in issue, would constitute a precedent. It is the rule deductible from the application of the law to the facts and circumstances of the case which constitutes its ratio decidendi. (Union of India v. Dhanwanti Devi ; State of Orissa v. Mohd. Illiyas ; ICICI Bank v. Municipal Corpn. of Greater Bombay ; State of Orissa v. Sudhansu Sekhar Misra ; Quinn v. Leathem ). Reliance placed on Kagitha Bhanu2, in support of the contention that the Election Tribunal has the power to pass an interlocutory order at the very inception, even before evidence is adduced in the Election O.P, is misplaced as the question, whether or not the Election Tribunal has been conferred such powers did not arise for consideration therein.
While the impugned order must be set aside on the ground of inherent lack of jurisdiction in the Election Tribunal to pass an interlocutory order at the very inception, more so one which has the effect of partly allowing the Election Petition itself, the fact remains that any delay in adjudication of the Election Petition may well result in the statutory right of the election petitioner, to hold the elected office of Sarpanch, being deprived thereby. The inconsistencies in the recount of votes, variations in the number of invalid votes at the time of each recount, and the power of the Returning Officer to order a third recount, have been put in issue, in his Election Petition, by the 6th respondent herein. While the submission of Sri K. Rathangapani Reddy, Learned Counsel for the 6th respondent, that the action of the Returning Officer in this regard is ex-facie illegal cannot be readily brushed aside, these are matters for adjudication by the Election Tribunal and not for examination in proceedings under Article 226 of the Constitution of India. I consider it appropriate therefore, while setting aside the impugned order, to direct the Election Tribunal to adjudicate the Election Petition with utmost expedition and, in any event, not later than four months from the date of receipt of a copy of this order. It is made clear that this Court has not expressed any opinion on the merits of the dispute and the Election Tribunal shall adjudicate the Election O.P. on its merits uninfluenced by any observations made in this Order or in its earlier order in I.A. No.840 of 2013 in Election O.P.No.16 of 2013 dated 25.02.2014.
The Writ Petition is, accordingly, disposed of. The miscellaneous petitions, if any pending, are also disposed of. No costs.
_______________________________ (RAMESH RANGANATHAN, J) Date: 02.06.2014.