Andhra HC (Pre-Telangana)
Bathina Baby Jyotsna vs Government Of A.P. And Ors. on 28 January, 2002
Equivalent citations: 2002(2)ALD344, 2002(2)ALT158
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan, I. Venkatanarayana
JUDGMENT Ar. Lakshmanan, C.J.
1. This writ appeal is directed against the order dated 30-8-2001, passed by a learned single Judge of this Court, dismissing the writ petition being WP No.17977 of 2001, filed by the appellant, on the question of maintainability.
2. Heard the learned Counsel for the appellant, the learned Additional Advocate-General for the State and the learned Standing Counsel for the Election Commission.
3. The appellant submits that certain irregularities were committed in the conduct of elections to the office of Sarpanch. Chandurthi Gram Panchayat, GoIIaprole Mandal, East Godavari District, and that she made a representation to the Election Officer requesting him to recount the votes. The Election Officer, who agreed for recounting of the votes, in fact recounted only the invalid votes, and passed an order stating that she received 87 invalid votes from the Supervisors, and after thorough verification, four votes were decided as valid, and as such, the invalid votes are 83 only. The appellant, thereupon, made a representation dated 18-8-2001 to the District Collector, reiterating the alleged irregularities. On the very same day, the District Collector passed an order, which reads:
Since Form 17 was signed by Election Officer and declaration of results was already made, . he may be advised to go to the competent appellate authority only.
4. Aggrieved by the above order, the appellant filed the writ petition. A learned single Judge of this Court dismissed the writ petition holding that the appellant is not entitled to challenge the election of the 6th respondent before this Court and that he is entitled to challenge the election in a properly constituted election petition before the Tribunal. The learned single Judge further observed that the order of dismissal of the writ petition shall not preclude the appellant from availing such remedies as may be available to him law and challenge the election of the 6th respondent, and in such an event, the matter shall be considered on its own merits uninfluenced by the dismissal of the writ petition.
5. Impugning the above order passed by the learned single Judge, this writ appeal is filed.
6. It is argued by the learned Counsel appearing on behalf of the appellant that there was, in fact, no counting of votes polled in favour of the appellant and the 6th respondent, and that only invalid votes, which were not shown to anyone, were counted by the Election Officer, and in such facts and circumstances of the case, he submits that the learned Counsel ought to have called upon the Election Officer to clarify die same.
7. Section 233 of the A.P. Panchayat Raj Act, 1994 (for short 'the Act'), which deals with Election Petitions, stipulates that no elections 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.
8. In view of the above section, we are of the opinion that the writ petition filed by the appellant is incompetent and not maintainable in law, and the appellant is entitled to file an election petition questioning the irregularities and illegalities committed in the conduct of the elections before the competent forum.
9. Article 243-O of the Constitution of India imposes a bar of no election being called in question except by way of an election petition presented before the prescribed authority. There is, thus a bar relating to elections to be or that may be held under the Act and the Rules made thereunder.
10. The learned Counsel for the appellant has drawn our attention to Rule 35 of the A.P. Panchayat Raj (Conduct of Elections of Members of Sarpanch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishads) Rules, 1994 (for short 'the Rules'), which deals with recount of votes. Rules 35(1) of the Rules stipulates that after announcement has been made under Sub-rule (7) of Rule 34, a candidate, or in his absence, his election agent, or any of his counting agents, may apply in writing to the Election Officer for recounting of the votes, either wholly or in part stating the grounds on which he demands such recount. Sub-rule (2) of Rule 35 of the Rules stipulates that on such an application being made, the Election Officer shall 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. Sub-rule (3) of Rule 35 of the Rules stipulates that every decision of the Election Officer under Sub-rule (2) shall be in writing and contain the reason therefor.
11. We have perused the order passed by the Election Officer on the representation made by the appellant requesting her to recount the votes. The Election Officer instead of recounting the entire votes polled, has in fact, recounted only the invalid votes. In our opinion, the procedure adopted by the Election Officer is not proper, and is irregular.
12. Rule 12(A) of the A.P. Panchayat Raj Act (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 stipulates that the Election Tribunal shall declare the election of the returned candidate to be void if in its opinion the returned candidate was not qualified or was disqualified on the date of his election or has committed any corrupt practice as laid down under Section 211 of the Act. The Election Tribunal shall also declare the result of the election to be void for any non-compliance with the provisions of the Act or any Rules or orders made under the Act.
13. In the instant case, the Election Officer, has not complied with the provisions of the Act and the Rules made thereunder in regard to the recounting of votes polled, and therefore, the appellant, in our opinion, is entitled to challenge the order passed by the Election Officer and the further order passed by the District Collector, before the prescribed authority constituted under the Act.
14. We, therefore, while dismissing the writ appeal, reserve liberty to the appellant to approach the prescribed authority namely, the Election Tribunal, by filing an appropriate election petition in accordance with the provisions of the Act and the Rules made thereunder, within a period of two weeks from the date of receipt of a copy of this order. The learned Standing Counsel appearing on behalf of the Election Commission is directed to inform the Election Commission to preserve the entire votes polled in the election so that they can be placed before the Election Tribunal, and it is for the Election Tribunal to pass appropriate orders on the application that may be filed by the appellant in terms of this order. Since the appellant was agitating his right before this Court, the time taken by him for prosecuting the writ petition as also the writ appeal shall be excluded while counting the period of limitation. No costs.