Andhra HC (Pre-Telangana)
Shaik Khasim Bi vs The Principal Magistrate (Election ... on 28 April, 1999
Equivalent citations: 1999(3)ALD350, 1999(3)ALT73, AIR 1999 ANDHRA PRADESH 300, (1999) 3 ANDH LT 73 (1999) 3 ANDHLD 350, (1999) 3 ANDHLD 350
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, Y.V. Narayana
ORDER B. Subhashan Reddy, J.
1. These two writ petitions have been filed assailing the order dated 28-4-1997 passed by the Principal Munsif Magistrate (Election Tribunal) Guntur in EOP No. 18 of 1996.
2. By the said order, the above Tribunal while selling aside the election of the Sarpanch, namely, Suit. Shaik Mahahoab Den, ordered re-election. Against the order selling aside the election, WP No.25522/97 was filed, while WP No.14129/97 is directed against the consequential direction for conducting the fresh election as against the prayer for declaring her, namely, Smt. Shaik Khasim Bee, as the Sarpanch.
3. The cases have checkered history. In order to avoid confusion, we refer the parties as arrayed in the Election Petition. Smt. Shaik Khasini Bee was the election petitioner, while Smt. Shaik Mahuboob Bee was the 1 st respondent. We refer to them accordingly. The Election Officer will be referred to as the 3rd respondent and the State Election Commission as the 6th respondent.
4. The post of Sarpanch of Mangalagiripadu Gram Panchayat of Medikonduru Mandai of Guntur District was reserved for women candidates. It comprises of 10 wards for electing the woman-sarpanch. The petitioner and the 1st respondent were the contestants. Elections were conducted on 27-6-1995 between 7 a.m and 1 p.m. Counting began in the afternoon of the same day. Total number of votes polled were 1072. After counting, it was announced that the petitioner had secured 512 votes and the 1st respondent had secured 509 votes. 51 votes were declared as invalid.
5. The 1st respondent was dissatisfied with the counting, but there is nothing on record to show that she has sought for recounting before the 3rd respondent. It is needless to mention that an application need to be made for recounting, but there is not trace of any such application. However, it is on record that the 1st respondent had sent a representation to the 6th respondent stating that there were irregularities in the process of counting. What all she has staled in the representation is that (he 3rd respondent had colluded with the petitioner and even., though, some votes were invalid, they were counted in favour of the petitioner and in spite of the objections raised by her agents, the same were not taken cognizance of and in a hurry, declaration was made that the petitioner was elected as the Sarpanch and that she had issued a telegram on 28-6-1995 to conduct recounting. She has stated that a request was made to the 3rd respondent to recount the votes, but the same was refused and that on the other hand, 3rd respondent had used police force against her and her agents. Stating so, she sought the relief from the 6th respondent for recounting of the votes. This representation was made to the 6th respondent on 29-6-1995 with copies to the District Collector, Guntur as also the Revenue Divisional Officer, Guntur, with a request to take necessary steps to recount the votes.
6. As there was no response to her representation, the 1st respondent had filed Writ Petition No.14231/95 seeking direction against the 6th respondent and the District Collector, Guntur and the Revenue Divisional Officer, Guntur lo recount the votes polled on 27-6-1995 for the post of Sarpanch of Mangalagiripadu Grama Panchayat. The petitioner was made the 4th respondent in the above ease. In WP MP No. 17388/95, interim directions were sought for to recount the votes, but no interim relief was granted. However, it was observed that election held on 27-6-1995 will be subject to the result of the writ petition. It is pertinent to mention that the above writ petition was filed on 7-7-1995 which came up on 11-7-1995 for admission and the same was admitted, but interim orders were not granted as stated above. Meanwhile, notification No.531/ SEC-B/95-B, dated 26-7-1995 was issued by the 6th respondent, responding to several petitions received for recounting including that of the 1st respondent as mentioned above and some guidelines were issued for recounting the votes in the following circumstances:
(1) Recounting has to be done where the margin of victory was less than 1 per cent of the total polled votes.
(2) Where only one recounting was permitted and in that recounting, there was a major change in the result leading to the victory of another candidate.
(3) Counting has to be done ward-wise in the election for the post of Sarpanch.
(4) If the number of invalid votes is between 5 to 10% of the total number of polled votes.
The Election Officers were directed to issue notice to the all contestants on 28/ 29-7-1995. When the recounting was being taken-up, writ petitions were filed questioning the above notification issued by the 6th respondent and one which was filed by the petitioner was Writ Petition No.24001/95. interim stay was granted, which was further extended and consequently, recounting could not be done. The said writ petition was admitted holding that the 6th respondent had no power to issue notification and ultimately, the matter went upto the Supreme Court in S.L.P. (Civil) No.33/96. By order dated 12-8-1996, the Supreme Court held as follows:
"We have heard learned Counsel on both sides.
The admitted position is that the election to the office of the Sarpanch of Mangalagiripadu Gram Panchayat, Guntur district reserved for women was held on June 27, 1995. It would appear that there was some irregularity in counting. Therefore, writ petition came to be filed in the first instance and direction was given for recounting by the High Court. Pursuant thereto, the recounting was done in which the appellant secured 513 while Smt. Khasim Bee, 4th respondent secured 510 votes. Consequently, the appellant was declared to have been elected. The second writ petition came to be filed, which was allowed in the impugned order dated December 19, 1995. Several contentions have been raised in the writ petition as regards the validity of the recounting as some of the votes were declared invalid. Since statutory remedy of filing the election petition has been provided, it would be appropriate that Tribunal goes into the legality or otherwise of the declaration of some votes as invalid and of recounting as alleged in this case. Under these circumstances, we decline to interfere with the result of the declaration. However, the 4th respondent is given time to file within 30 days from today election petition before the Election Tribunal. The judgment of the High Court stands reversed and the writ petition dismissed."
Result is the election petition filed by the petitioner in HOP No.18 of 1996, whose order is challenged in these two writ petitions. At this stage, it may be necessary to mention that writ petition No.14231/95 filed by the 1st-respondent seeking recounting came-up for hearing before the Division Bench, but it seems that nobody represented the facts which had transpired by that time including that of the order of the Supreme Court and the Division Bench has on 30-12-1996 passed the following order:
"In this case, the petitioner approached this Court complaining of irregularities in counting of votes and making a request for recounting of ballots.
In as much as, the elections have already been conducted and the results are declared, the petitioner has to seek the remedy from the Election Tribunal in view of the provisions of Hie Ancilira Pradesh Panchayat Raj Act read with Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995."
In view of the above position, we dismiss the writ petition. There shall be no order as to costs."
But the fact remained that the 1st respondent did not file the Election-Petition, but had contested the Election Petition filed by the petitioner in EOP No. 18/96. It is needless to mention that in the meanwhile, recounting was held basing upon the notification dated 26-7-1995 issued by the 6th respondent in which the 1st respondent was declared as elected by a margin of 3 voles, as in the recounting held, it was declared that the petitioner had secured 510 votes as against 513 by the 1st respondent. It is also needless to mention that pursuant to the above declaration in the recounting, the 1 st respondent had been performing the functions of Sarpanch. As the stay has been granted pending the disposal of these writ petitions, she is still functioning as such.
7. One vital factor which has to be noticed is that while in the first count on 27-6-1995, the total votes polled were 1072, in the recounting held later, the total votes counted were 1065, as 7 votes were found to be missing. The cause for the missing of 7 votes and the person/s responsible for the same are not known. That was the reason for the election Tribunal to hold that the election was materially affected because of the 7 missing votes and as such, directed the conduct of fresh elections after setting aside the election of the 1st respondent.
8. Mr. L. Ravichander, the learned Counsel appearing for the petitioner submits that the petitioner is not responsible for missing of 7 votes and that in fact, there was no jurisdiction for the 6th respondent to order recounting by notification and consequently, the 3rd respondent was not having legal authority to recount the votes and that Rule 15(ii)(b) of Andhra Pradesh Panchayaf Raj (Election Tribunals in respect of G ram Panchayat, Mandal Parishads and Zilla Parishads) Rules, 1995 is unconstitutional.
9. Mr. M.V. Ramana Reddy, the learned Senior Counsel, appearing for the 1st respondent strenuously contends that the 6th respondent being the State Election Commission has got absolute power, authority and jurisdiction to issue the, notification dated 26-7-1995, that the same is traceable to the power of the 6th respondent under Section 201 of A.P. Panchayat Raj Act, 1994 and that the 1st respondent is not liable for the missing of 7 votes and that in any event, there was no ground for the Election Tribunal to set aside the election.
10. If the recounting is valid, we cannot find fault with the approach of the Election Tribunal for the reason that certainly 7 missing votes would have bearing on the declaration of results, as in the first counting or second counting, the difference of votes is only 3. There is also no substance in the argument that Rule 15(ii)(b) of the above Rules is either illegal, arbitrary or unconstitutional. There is no basis to say that the said rule offends Article 14 of the Constitution of India. In fact, the said rule is very salutary and is the last alternative prescribed, if declaration of any other party to the election petition is not possible as contemplated under Rule 15(ii)(a); as such, we do not find anything wrong with Rule 15(ii)(b) and it is perfectly valid under law.
11. With regard to the validity of the Notification dated 26-7-1995 issued by the 6th respondent, there are two judgments, which are brought to our notice - (i) the judgment between the parties herein in Smt. S.K. Kasim Bee v. State Election Commissioner, and (ii) the judgment in K Venkat Reddy v. Court of District Munsif, . The purport of these two judgments is that the 6th respondent cannot issue directives for recounting contrary to Rule 35. Insofar as the judgment in Smt. S.K. Kasim Bee v. State Election Commissioner (supra) is concerned, that was appealed against before the Supreme Court in the case mentioned above and without adjudicating with regard to the legal principles staled therein, the Supreme Court had directed the petitioner to file an election petition and the result is Election Petition No. 18 of 1996 whose order is under review in these writ petitions.
12. The two Division Benches in the said judgments have stated the correct view that the 6th respondent cannot issue any direction for recounting without there being an application in that regard. We follow the said principle and we give reasons therefor, infra. But, before doing that, we have to state that the Notification dated 26-7-1995 issued by the 6tli respondent has not been read in proper perspective and it is assumed by everybody that the said notification mandates all the Election Officers to recount the votes even though no application is made before the Election Officer as contemplated under Rule 35(1) of the Rules, namely, the Andhra Pradesh Panchayat Raj (Conduct of Elections of Members and Sarpartch of Gram Panchayat, Members of Mandal Farishad and Members of Zilla Parishad) Rules, 1994. The said Rules are hereinafter referred to as 'the Election Rules'. The same have been framed in exercise of the powers conferred by sub-section (1) of Section 268 read with Sections 8, 11, 12, 13, 14, 15, 148, 149, 151, 153, 154, 177, 178, 179, 182 and 183 of the Andhra Pradesh Panchayat Raj Act, 1994. Rule 32 of the said Rules deal with scrutiny of opening of ballot boxes and counting of votes. Rule 32-A speaks of the persons who can be admitted to the place fixed for counting. Rule 34(1) deals with counting of the ballot papers and Rules 34(2) to 34(5) deal with the circumstances under which a ballot paper can be rejected after scrutiny and following fair play. Under Rule 34(6) every ballot paper, which is not rejected, shall be counted as valid one. Under Rule 34(7), after counting of ballot papers in ail the ballot boxes used in a Gram Panchayat, Mandal Parishad and Zilla Parishad have been completed, the Election Officer shall make the entries in a result sheet in Form 17 and announce the particulars. Rule 34(8) makes it clear that the decision of the Election Officer as to the validity of a ballot paper is final, subject to scrutiny only and if necessary reversal on an election petition. Of course, the Election Officer is entitled to recount the votes, if such a requisition is made and if he is satisfied about the said requisition. If there is evidence of such a request made by the 1st respondent, then the 3rd respondent was under an obligation to apply his mind as .to whether the circumstances warranted recounting and in the instant case, there is no such evidence forthcoming with regard to the claim of the 1st respondent that she made a request or demand, as the case may be, for recounting. In the absence of such a demand for recounting on the part of the 1st respondent, recounting cannot be made pursuant to the Notification dated 26-7-1995 issued by the 6th respondent. We cannot countenance the contention of Mr. M.y. Ramana Reddy that the 6th respondent being the State Election Commission, has got power and authority to issue such a notification in exercise of the powers under Section 201 of the A.P. Panchayat Raj Act. Respondent No.6 would have been entitled to issue such directives as contained in the Notification dated 26-7-1995 for recounting in the absence of any other statutory provision or rule. As the specific rule has been framed in exercise of the rule making power traceable to several provisions of the statute, the power (o issue directives by the 6th respondent, which run contra to the Election Rules cannot sustain. The Election Rules are specific that if an application in writing is made for recounting, then the Election Officer shall be entitled to apply his mind as to whether the circumstances warrant for a recount and if he allows the application, recounting will; be made and if he docs not allow, then the same can be complained to the Election Tribunal, by filing an election petition. Even if there is any irregularity in the counting process, the same can be a subject matter for adjudication by the Flection Tribunal. In the instant case, as already staled above, there is no evidence of filing an application by the 1st respondent before the 3rd respondent for recounting. The 6th respondent was not entitled to issue directives to recount the votes even without there being any application before the 3rd respondent for recounting. In fact, a close reading of the Notification dated 26-7-1995 issued by the 6th respondent would reveal that the said notification does not mandate Election Officers to recount (he votes even without there being an application filed before the Election Officer. The said notification has to be read in tune with the statutory provisions and also the Election Rules mentioned above. It has to be understood that if an application has been made for recounting, then the Election Officer should order recount, if the difference in votes is 1% or less of total number of votes polled. Such a directive by the 6th respondent cannot be said to be without jurisdiction, as Election Rules are not specific as to what are the factors which can be considered for allowing a recount. As there are no guidelines in the Election Rules, the 6th respondent is not precluded from issuing a norm in the shape of notification dated 26-7-1995 as a definite guide thai if the difference of votes is 1% or less of the total number of votes pol1ed, then there should be a recount, in fact, such a direction by the 6th respondent checks the unfettered discretion of the election officers or otherwise the election officers will be exercising the unbridled power and they can either order recounting or refuse recounting according to their whims and fancies. Some sort of regulation and some sort of control and some sort of guidance is necessary to the election officers and as such, the Notification dated 26-7-1995 issued by the 6th respondent has to be understood in that context that subject to an application for recounting being filed by a contestant before the election officer, the Election Officer is bound to orden recounting in case the difference of votes is 1% or less of the total number of votes polled. Concisely speaking, the 6lh respondent can issue such directions and instructions to the election officers for smooth and effective conduct of elections in the areas which are not covered by either the provisions of the Andhra Pradcsh Panchayat Raj Act or the Rules framed thereunder. Such an action by the 6th respondent would only become supplemental and would be valid. If the State Election Commissioner issues directives to recount the votes, per force, even without there being an application therefor, then it is bad and illegal for the reason that it runs contra to the Election Rules and precisely Rule 35(1) of the Rules. But, as the notification has to be understood and if necessary it has to be react down as guiding election officers for recounting, provided an application is to be made in that regard if the difference in votes is 1% or less of the total number of votes polled and such a construction would not offend any other statutory provisions of A.P. Panchayat Raj Act or the Election Rules. But, in the instant cases, as there is no trace of any application filed by the 1st respondent before the 3rd respondent for recounting, the recounting made on 21-10-1995 only pursuant to the notification dated 26-7-1995 issued by the 6th respondent is illegal and bad, as the said notification satisfies only one requirement, i.e. difference of less than 1% of votes and does not specify the other requirement of filing an application for recounting as contemplated under Rule 35(1) of the Rules.
13. In view of what is stated supra, the recounting held on 21-10-1995 is illegal and bad and as a necessary corollary, the petitioner, namely, Smt. Shaik Khasim Bee was entitled to be declared as the Sarpanch of Mangalagiripadu Gram Panchayat, Mcdikonduru Mandal of Gunlur district. We do so and direct the 3rd respondent to instal the petitioner as the Sarpanch of the above Gram Panchayat and administer oath of allegiance, within a period of one week from the date of receipt of a copy of this order.
14. In the result, WP No.14129 of 1997 is allowed to the extent indicated above, while WP No.25522 of 1997 is dismissed. No order as to costs.