Andhra HC (Pre-Telangana)
Panchumarthi Anuradha vs Avala Nagarani And Ors. on 7 December, 2001
Equivalent citations: 2002(1)ALD521, 2001(6)ALT692
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner in the instant writ petition prays for issuance of a writ of Certiorari calling for the records relating to the judgment dated 26-7-2001 in Election Petition No.l of 2001 on the file of the Election Tribunal for Municipal Corporations at Hyderabad and quash the same.
2. Before adverting to the question as to whether the order passed by the Election Tribunal for Municipal Corporations at Hyderabad constituted under Section 75(1) of the Hyderabad Municipal Corporation Act, 1955 (for short 'the Election Tribunal') suffers from any error apparent on the face of the record, it may be necessary to briefly notice the relevant facts leading to filing of this writ petition.
3. The elections for the office of Mayor, Vijayawada Municipal Corporation and Corporators for 50 Divisions were held on 9-3-2000. In the said elections, the petitioner and respondents 1 to 7 herein have contested the election for the office of the Mayor. The petitioner herein secured 1,05,169 votes, whereas the first respondent herein secured 98,579 votes out of the total votes polled 2,78,733. In all, 5,596 votes were declared as invalid votes. The details of votes secured by other candidates are not necessary to be noticed. The results of the elections were accordingly declared on 11-3-2000, in which the petitioner herein was declared to have been duly elected as Mayor of the Corporation with a majority of 6,590 votes.
4. The first respondent herein filed Election Petition No.l of 2000 challenging the election of the petitioner herein, before the Election Tribunal. During the trial of the Election Petition, 9 witnesses were examined on behalf of the first respondent-Election petitioner and 2 witnesses were examined on behalf of the petitioner herein. The Returning Officer has also given evidence before the Election Tribunal. Ex.PI to Ex.PlI were marked on behalf of the first respondent-election petitioner and Ex.PI2 to Ex.P21 were marked with consent of the parties. The trial was concluded. The Election Tribunal reopened the case at the instance of the petitioner herein and permitted her to adduce further evidence by examining 9 more witnesses. The Election Tribunal passed the impugned judgment on 26-7-2001, which is to the following effect:
"Since I feel that interest of justice require that recounting of votes polled for the Mayor's post and counted a( D.R.R. indoor Stadium Counting Centre and Old Council HaLL Counting Centre is necessary to have a supporting evidence for oral evidence led by the petitioner on these aspects. The evidence led by the parties regarding other counting centres will be appreciated only on result of the recounting at the above referred two counting centres. So, at this stage 1 feel it is not proper to pass orders for recounting of votes polled for Mayor's post and counted at other counting centres without knowing the result of recounting of votes polled for Mayor's post at the above referred two counting centres.
Therefore, I hold that recounting of votes polled for Mayor's post of Zone No.VIl, Divisions Nos.31, 33, 39, 32 and 40 and Zone No. IX Division Nos.43, 46, 41, 44 and 45 which were counted at D.R.R. Indoor Stadium Counting Centre, Bandar Road, Vijayawada and the votes polled for Mayor's post pertaining to Zone No. T, Division Nos.l, 2, 3, 4 and 5 which were counted at Old Council Hall Counting Centre is necessary since the petitioner has proved by other evidence that irregularities and illegalities were committed on counting process at these counting centres.
In the result the following directions are issued to the Commissioner, Municipal Corporation of Vijayawada and the Returning Officer Respondent No. 8:
1. To call for the votes that were bundled at the time of counting of votes polled for Mayor's post of Zone No.VII, Divisions Nos. 31, 33, 39, 32 and 40 and Zone No.lX, Divisions Nos.43, 46, 41, 44 and 45 at D.R.R. Indoor Stadium Counting Centre and the votes polled for Mayor's post pertaining to Zone No. I, Divisions Nos.l, 2, 3, 4 and 5 at Old Council Hall Counting Centre.
2. To verify as to whether the number of votes in the bundles tally or not.
3. To scrutinise, verify as to whether the votes polled for each candidate were bundled properly or not.
4. To call for the doubtful votes and decide that they were properly voted for the candidates and were counted for them properly or not.
5. To rectify the irregularities and illegalities committed while counting of votes polled for Mayor's post, if any, and submit Form No. 19 duly prepared for each Division referred above after scrutiny and recounting of votes polled for Mayor's post. The Form No.19 earlier sent by AROs and Counting Supervisors Division wise also be sent to this Tribunal.
6. The process of scrutiny and recounting must be completed within two months from the date of receipt of these directions and send the report to the Tribunal.
Call on this case for further hearing on 8-10-2001."
5. The Election Petition is still pending. The said judgment is impugned in this writ petition.
6. Sri E.Manohar, learned Senior Counsel appearing on behalf of the petitioner contends that the impugned judgment of the Election Tribunal suffers from incurable legal infirmities and is vitiated by errors apparent on the face of the record requiring the correction of this court in exercise of its Certiorari jurisdiction. It is submitted that there is no evidence whatsoever which could be characterised as a legal evidence let in by the first respondent-election petitioner in support of her case for ordering the recount of the votes polled for the Mayor's office as has been done by the Election Tribunal. The evidence, if any, let in by the first respondent-Election Petitioner is totally vague and indefinite. It is also contended by the learned Senior Counsel that the Election Tribunal committed an error in ordering the recount of the votes without there being any application for recount of the votes filed by the first respondent-election petitioner before the Returning Officer. The allegations made m the Election Petition are engineered and pressed into service for the first time without there being any basis whatsoever.
7. Sri D. Sudarshan Reddy, learned counsel appearing for and on behalf of the first respondent-election petitioner contends that this court does not exercise any appellate jurisdiction over the orders passed by the Election Tribunal and ordinarily does not interfere and disturb the findings recorded by the Election Tribunal. The findings recorded by the Election Tribunal are based on evidence. It is submitted that there are specific pleas raised by the first respondent-election petitioner in her Election Petition and all those pleas are supported by the evidence. It is also submitted that the first respondent-election petitioner submitted an application for recount of the votes before the Returning Officer under Rule 52 of Municipal Corporation of Hyderabad (Elections of Mayor, Members and Election Petitions) Rules, 1987 (for short 'the Rules').
8. The short question that falls for consideration is as to whether the impugned judgment passed by the Election Tribunal suffers from any legal infirmity? Is it vitiated by an error apparent on face of the record?
Scope of Certiorari jurisdiction :
9. It is to be remembered that this court acting in Certiorari does not act in appellate jurisdiction. The object of the writ of certiorari is to keep the exercise of powers by the quasi-judicial tribunals within the limits of their jurisdiction and not to act in excess of their powers. Once the Tribunal had jurisdiction, it had jurisdiction to decide rightly as well as wrongly. In order to quash an order on the ground of jurisdiction, it must be shown that the authority had acted without jurisdiction or in excess of it. (For the proposition see: Ebrahim Aboobakar v. Custodian-General, Evacuee Property, ).
10. As has been held by the higher courts in India, a writ of Certiorari will issue to correct the errors of jurisdiction as when the inferior Court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. A writ of Certiorari can also be issued if there is an error of law, which is apparent on the face of the record. Such an error must be patent on the face of the record. Such an error must be manifest on the face of the record.
11. It is true that it is not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. "Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened." (For the proposition see: Syed Yakoob v. Radhakrishnan, ).
12. That it may not be necessary to reiterate the well known principle that re-appreciation of evidence by this Court in exercises of its Certiorari jurisdiction is totally impermissible, since the Certiorari jurisdiction of this court is not akin to that of the appellate jurisdiction. Only such errors which are self-evident are liable to be quashed. A pure error of fact, however, grave, cannot be corrected by a writ of Certiorari. But a writ of Certiorari can be issued on findings of fact where the Tribunal has acted on legally inadmissible evidence, or it has refused to admit admissible evidence, or if the finding is based as no evidence at all, because in such cases the error amounts to an error of law. (For the proposition see: Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1956 SC 233).
13. We shall bear these principles in mind and proceed to decide as to whether the Election Tribunal has committed any error of law? Whether the Election Tribunal recorded its findings on no evidence and as to whether the findings are based on suspicions, conjectures, surmises or no reasonable person in the facts and circumstances of the case would have reached the findings recorded by the Election Tribunal?
14. The question that immediately would arise for consideration is as to what is the law relating to the power and jurisdiction of an Election Tribunal to order and direct the recount of the votes polled?
15. It is conceded at the Bar and rightly so that the law laid down by the High Courts and the Supreme Court relating to the jurisdiction of the High Courts to order for recount of the votes polled in the elections held under provisions of the Representation of Peoples Act and Rules framed thereunder would be applicable to the case in hand. The same principles would be applicable to consider whether the recount of votes, polled, in an election to the office of the Mayor of a Municipal Corporation held under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the Rules framed thereunder, can be ordered.
Law relating to the recount of votes:
16. The development of the law on the subject is clear and perceptible. Law can never be static. It keeps on fine-tuning itself to meet ever changing societal needs and felt necessities.
17. The law appears to have undergone some change and as at present the emphasis seem to be the preservation of purity of election process rather than the secrecy of the ballot. No doubt, the secrecy of the ballot is sacrosanct, but at the same time purity of election process has to be preserved. The power of the court to order for inspection and recount of the ballot papers is the subject-matter of several decisions of the Supreme Court and the law thereon is fairly well settled. At one point of time, the emphasis was on secrecy of the ballot and the same was held to be sacrosanct, but the shift is now towards the preservation of purity of election process.
18. But the Supreme Court consistently held that the election petitioner cannot be permitted to indulge in a roving enquiry to fish out the materials in the hope that the recount if allowed may probably twist the balance of votes in his favour. The power to direct inspection and recount shall not be exercised by the courts to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out materials for declaring the election to be void. No direction for inspection and recount shall be ordered by the court by mere asking. It is the duty of the election petitioner to produce trustworthy material and evidence in support of the allegations made for recounting enabling the court to record a satisfaction of a prima facie case for grant of the relief.
19. In Shashi Bhushan v. Balrai Madhok, , the Supreme Court cautioned that "a Judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one." It is further observed that "secrecy of ballot is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society."
20. The learned Senior Counsel, Sri E.Manohar, relies upon the judgments of the Supreme Court in Bhabhi v. Sheo Govind, and V.S. Achuthanandan v. P.J. Francis, , support of his submission that the Tribunal cannot order sample inspection in order to test the validity of the allegations made in the Election Petition. The Supreme Court in V.S. Achuthanandan (supra) after referring to its earlier judgments including the judgment of the Constitutional Bench in Ram Sewak Yadav v. Hussain Kamil Kidwai, , declared that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection of the ballot papers and re-stated the principles as under:
1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard.
2. A petition seeking inspection and recount of ballot-papers must contain averments adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.
3. The scheme of the Rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-Ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made-for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.
4. The election-petitioner must produce trustworthy material support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The Court must come to conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute.
5. The power to direct inspection and recount shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.
6. By mere production of the sealed boxes of ballot papers or the documents forming part of record of election proceedings before the Court the ballot papers do not become a part of the Court record and they are not liable to be inspected unless the Court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count.
7. In the peculiar facts of a given case the Court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made in support of a prayer for re-count and not for the purpose of fishing out materials.
21. It is clear from the above judgment that in a given case a sample inspection may be ordered by the Tribunal "to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for recount and not for the purpose of fishing out the materials." It is, thus, clear that the Court or the Tribunal, as the case may be, in the special facts of a given case, order sample inspection only after arriving at a prima facie satisfaction regarding the truth of the allegations made for a recount. It cannot be the other way. No sample inspection of the ballot papers may be ordered for arriving at a prima facie satisfaction to order for the recount. The court must arrive at a prima facie satisfaction that the materials produced before the Court and the evidence let in by the parties make out a prima facie case for ordering the recount of the votes and only to lend further assurance to itself may order the sample inspection of the ballot papers.
22. In Raghbir Singh v. Gurcharan Singh, , the Supreme Court while adverting to the importance of secrecy of ballot observed that "the principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest," It is, however, further observed that "the recount cannot be ordered just for the asking. A petition for re-count after inspection of the ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a purpose of fishing out materials."
(Emphasis is of mine).
23. In Shradha Devi v. Krishna Chandra, , the Supreme Court while adverting to the requirement of law for granting relief of scrutiny and recount on the allegation of miscount observed that "the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If proof is furnished of some errors in respect of some ballot papers, scrutiny and re-count cannot be limited to those ballot papers only. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then taken into consideration only those ballot papers and not others."
(Emphasis is of mine).
24. In A.N. Nadar v. George Mascrene, 1994 (2) Scale 70, the Supreme Court observed that "secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosancy of which much in all events be preserved. "When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle."
25. The importance of both the principles has been recognised by the Supreme Court. In fact, the Supreme Court observed that the right of a voter not to be compelled by any authority to disclose as to for whom he has voted must yield to the principle of purity of election in larger public interest.
26. In Vadivelu v. Sundaram, , the Supreme Court observed that "the re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties."
27. An analysis of the aforementioned decisions rendered by the Supreme Court would make it clear that re-count of votes polled cannot be ordered by the court unless a clear prima facie case is made out by the election petitioner. The principle of secrecy of vote is no doubt important, but the principle of purity of election process is equally important. In a given case, in order to do complete justice between the parties, the court may order sample inspection of the ballot papers after arriving at a prima facie satisfaction about the irregularities in the counting of votes by the election staff. In a given case, the principle of secrecy of voting may have to give a way to principle of purity of election process. But, under no circumstances, the court can pass an order directing the recount in a casual or lighthearted manner.
About the merits of the case in hand:
28. The next question that falls for consideration is as to whether there is no factual foundation as such laid in the Election Petition itself complaining of any irregularities in the various counting halls? Is there no evidence at all let in by the first respondent-election petitioner making out any prima facie case about the alleged irregularities? Whether there is no prima facie satisfaction at all recorded by the Election Tribunal?
29. In the instant case, the first respondent-election petitioner in paragraph 7 of the election petition clearly pleaded that she visited DRR Indoor Stadium at about 11-30 a.m., wherein the counting of ballots pertaining to divisions numbers 43, 46, 41, 44 and 45 under Zone-IX were taking placing. She was informed by her counting agent who was at the Assistant Returning Officer's table that the counting assistants were indulging in various irregularities in counting of the ballot papers and inspite of his complaint, the Assistant Returning Officer did not take any step to rectify the irregularities. The counting assistants were bent upon favouring the petitioner herein by placing the votes, which are polled in favour of the first respondent-election petitioner in the trays, meant for the petitioner herein. It is alleged that the counting staff used to place more than 25 votes i.e. about 5 or 6 votes in excess of 25 ballots and counted them as 25 pertaining to the first respondent-election petitioner and whereas in the case of the petitioner herein, less than 25 votes were placed in each bundle and counted them as 25 and in that process the first respondent-election petitioner lost about 50 or 60 votes in each round and the petitioner herein gained about 40 or 50 votes in each round due to this said irregularity. The first respondent-election petitioner presented a written representation to the Assistant Returning Officer about the said irregularity then and there, but the Assistant Returning Officer failed to take any action and also refused to acknowledge the same. In nutshell, it is alleged that on account of the said irregularity, the first respondent-election petitioner lost about 1000 votes by then and the petitioner herein gained the equal number of votes.
30. In support of the said allegations, PW5 was examined. He clearly speaks about the said illegalities. Likewise, clear allegations are made in paragraph 8 of the Election Petition complaining of irregularities and illegalities, particularly, at table Nos.3, 4 and 5 in the counting halls at DRR Indoor Stadium where the counting of the divisions 33, 39, 31, 32 and 40 in Zone VII were taking place. PW-9 speaks about the said irregularities.
31. Similar allegations; are made in paragraph 10 of the Election Petition and PWs.1, 2 and 9 speak about the said allegations.
32. It cannot be said that there are no definite pleadings in the Election Petition.
33. In paragraph 11 of the Election Petition, the objections raised by the first respondent-election petitioner regarding the doubtful votes are mentioned in clear terms.
34. The Election Tribunal after an elaborate consideration of the matter and upon appreciation of the evidence came to the conclusion that the Assistant Returning Officers are expected to supervise the counting process, but they failed to do so. The evidence given by the Assistant Returning Officers has bee subjected to meticulous examination by the Election Tribunal. The Election Tribunal came to the conclusion that there is no record maintained by the Assistant Returning Officers regarding the objections, but in order to save their own skin they have simply stated in the evidence as if no objections have been raised by the first respondent-election petitioner, even though and in fact, objections were raised by the counting agents at the time of counting process.
35. It is under those circumstances, the Election Tribunal came to the conclusion that the election petitioner clearly made out a prima facie case that irregularities were committed at the time of counting of votes at least at two counting centres, that is to say, D.R.R. Indoor Stadium and Old Council Hall. The Election Tribunal, in fact, held that even the circumstances as spoken to by the witnesses examined on behalf of the petitioner herein (respondent in the Election Petition) would show that irregularities and illegalities were committed while counting of votes at the two counting centres.
36. It is under those circumstances, the Election Tribunal came to the conclusion that the interest of justice requires that recounting of the votes polled for the Mayor's office and counted at D.R.R. Indoor Stadium Counting Centre and Old Council Hall Counting Centre is necessary "to have a supporting evidence for oral evidence led by the petitioner (first respondent herein) on these aspects. The evidence led by the parties regarding other Counting Centres will be appreciated only on result of the recounting at the above-referred two Counting Centres. So, at this stage I feel it is not proper to pass orders for recounting of votes polled for Mayor's post and counted at other Counting Centres without knowing the result of recounting of votes polled for Mayor's post at the above referred two Counting Centres.
37. The Election Tribunal accordingly directed to recount all the votes polled for the Mayor's office of Zone-VII, Division Nos.31, 33, 39, 32 and 40 and Zone-IX, Division Nos.43, 46, 41, 44 and 45 which were counted at D.R.R. Indoor Stadium, Counting Centre, Bandar Road, Vijayawada and the votes polled for Mayor's office pertaining to Zone-1, Division Nos. 1, 2, 3, 4 and 5 which were counted at Old Council Hall Counting Centre.
38. The conclusions reached by the Election Tribunal are severely attacked and criticized by the learned senior Counsel, Sri E.Manohar, contending that the decision to order recount by the Election Tribunal is nothing but a roving and fishing enquiry by the Election Tribunal based on wild allegations. It is submitted that such direction ordering sample inspection of the ballot papers is impermissible in law. We have already adverted to this aspect of the matter elsewhere. The criticism has no merit. The Election Tribunal upon appreciation of the evidence let in by the first respondent-election petitioner and after specifically referring to the evidence of PWs.l, 2, 5, 6 and 9 and the pleadings including the counter filed by the Returning Officer came to a clear prima facie conclusion that the objections as to the irregularities in the counting were taken for and on behalf of the first respondent-election petitioner before the Assistant Returning Officers and the Assistant Returning Officers denied the factum of raising objections by the first respondent-election petitioner for the sake of denial. The Assistant Returning Officers have not maintained any record of objections. The Election Tribunal further arrived at a prima facie conclusion that the irregularities were committed at the time of counting of votes and the first respondent-election petitioner clearly established such irregularities at least at two counting centres referred to hereinabove. The Election Tribunal accordingly directed a sample inspection of the votes polled in the specific divisions of Zone-VII and Zone-IX counted at D.R.R. Indoor Stadium Counting Centre and the specified divisions of Zone-1 counted at Old Council Hall Counting Centre, in order to arrive at a further conclusion as to whether it would be necessary to order the recount of the votes counted at the other centres also. Neither the procedure adopted by the Election Tribunal nor the conclusions recorded, in my considered opinion, suffer from any legal infirmity.
39. The conclusions reached by the Election Tribunal are based upon the appreciation of both the oral and documentary evidence. The appreciation of evidence, by no stretch of imagination, could be characterised as a perversed one. It is well settled that this court in exercise of its Certiorari jurisdiction would not re-appreciate the evidence and substitute the findings for that of the Election Tribunal. Each and every observation made by the Election Tribunal in the process of arriving at the conclusions cannot be subjected to microscopic examination by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. Such a course is not permissible in law.
40. Suffice it to hold that the Election Tribunal rightly concluded that the facts in hand and the evidence on record clearly justify and make out a case for ordering a recount of the votes. The Election Tribunal rightly concluded that in order to do complete justice between the parties, the sample inspection of the ballot papers is just and necessary. The decision does not suffer from any legal infirmity.
41. Now let us take up the question as to whether the Returning Officer is not the authority empowered to entertain the application for recounting of the votes?
42. Ex.P2 is application dated 11-3-2000 filed by the first respondent-election petitioner and her Chief Election Agent for re-count of the votes. It is addressed to the Commissioner, Election Authority, Vijayawada. The Returning Officer rejected the application by an order dated 11-3-2000 vide Ex.P3 and Ex.P7 on the ground that the petition given by first respondent-election petitioner is vague and does not refer to any specific case and that no objections have been raised by the counting agents when the ward-wise votes polled for each of the Mayor candidates have been announced for each ward.
43. It is contended by the learned Senior Counsel that the application ought to have been filed before the Assistant Returning Officers concerned, but not before the Returning Officer.
44. Rule 52 of the Rules provides for making an application in writing by a candidate or in his absence, his election agent or any of his counting agents to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. Such an application can be filed only after completing of the counting and recording the total number of votes polled by each candidate in the result sheet in Form 19 arid after announcing the same.
45. Rule 49 of the Rules prescribes the procedure to be followed at the counting of votes. The Returning Officers of the Wards (who are the Assistant Returning Officers for the Elections to the office of the Mayor) are competent to do the counting independently and also decide doubtful ballot papers and reject them wherever necessary. The Assistant Returning Officers are not clothed with any jurisdiction or authority in law to order for recount of the votes polled for the office of the Mayor.
46. The question that falls for consideration is as to whether any application at all has been filed by the election petitioner?
47. The Returning Officer examined himself as a witness, in which he stated in categorical terms that at about 8-30 P.M. Chief Election Agent of Congress Party gave a copy of the application addressed to the Commissioner to him with a request for recounting of votes when the compiling of ballot papers polled in favour of candidates of Mayor's office was going on. He stated further that the compiling from the result sheets sent by AROs of Mayor's election containing 50 sheets was going on. After receiving the copy of the application for recounting of votes, he consulted the AROs of majority Counting Centres and disposed of the same by rejecting it at about 9-00 P.M.
48. The Election Tribunal came to the conclusion that the order under Ex.P6 is not in conformity with Rule 52 (3) and (4) of the Rules, since it does not contain any reasons. The order was not passed on 11-3-2000, but was passed on 12-3-2000 and was served on the wife of Chief Election Agent of the election petitioner.
49. Be that as it may, filing or non-filing of an application for re-count of votes before the Returning Officer may be one of the factors to be taken into consideration by the Election Tribunal before passing an appropriate order directing the recount of the votes polled. The mode and method of filing the application and the decision of the Returning Officer either accepting or rejecting the application, as the case may be, made for recount of the votes in no manner effects the jurisdiction of the Election Tribunal either to order or not to order the recount of the votes polled in the election.
50. In the circumstances, this court does not find any merit in the submission made by the learned senior Counsel in this regard.
51. For the aforesaid reasons, the court finds no merit in any of the contentions urged on behalf of the petitioner. The impugned judgment passed by the Election Tribunal does not suffer from any legal or factual infirmities. It is not vitiated for any reason whatsoever requiring any correction as such by this court in exercise of its Certiorari jurisdiction.
52. The writ petition fails and shall accordingly stand dismissed. No order as to costs.