Andhra HC (Pre-Telangana)
Reddicherla Balaji Raju vs Election Officer And Ors. on 9 October, 2001
Equivalent citations: 2001(6)ALD123, 2001(5)ALT603, 2002 A I H C 112, (2001) 5 ANDH LT 603
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner in the instant writ petition prays for issuance of a writ of Mandamus declaring the petitioner to have been duly elected as Sarpanch of Reddicherla Gram Panchayat, Komarole Mandal, Prakasam District in the elections held on 17-8-2001.
2. Before adverting to the question as to whether any such relief could be granted by this court in exercise of its jurisdiction under Article 226 of the Constitution of India, it may be necessary to briefly notice the relevant facts:
3. The election for electing the members and Sarpanch of Reddicherla Gram Panchayat was held on 17-8-2001. The petitioner as well as respondents 4 and 5 contested the election to the office of the Sarpanch of Gram Panchayat.
4. It is alleged that while counting the votes, the counting staff committed various irregularities. Several votes polled in favour of the petitioner were counted in favour of the 4th respondent 55 votes were kept aside as doubtful votes. Before scrutiny of 55 doubtful votes and before the completion of counting process, respondents 4 and 5 and their Chief counting agents pressurised the first respondent and "extracted the declaration in Form No.19" as if the 4th respondent was elected. It is alleged that the first respondent left the counting hall by so declaring even before all the votes were counted. It is at that stage, the petitioner filed a petition for recounting of all the votes including the doubtful votes and the votes that were already counted. The declaration so made by the first respondent-Election Officer was put in issue.
5. It is further alleged that the first respondent-Election Officer did not scrutinise 55 doubtful votes at all and he has not made any endorsement on each ballot paper stating the ground on which it was rejected before giving declaration in Form No. 19 to the 4th respondent. The Election Officer failed to enter the particulars of votes polled in favour of each candidate in the result sheet in Form No.17.
6. It is, however, stated that the first respondent Election Officer on an application filed by the petitioner for recounting of all the votes counted the doubtful votes and found 15 valid votes polled in his favour. Thereafter, the first respondent Election Officer is stated to have declared the petitioner to have been duly elected as Sarpanch. Accordingly, a declaration in Form No. 19 was given to the petitioner also. Thereafter, the first respondent Election Officer sent a letter dated 18-8-2001 to the Mandal Development Officer detailing the incident leading to the declaration of result in favour of the petitioner. Thereafter, the first respondent Election Officer sealed the election material and handed over the same to the Police Station, Komarole for safe custody.
7. Thereafter, the 4th respondent and his supporters got prepared another letter addressed to the Mandal Development Officer and forcibly obtained the signature of the first respondent Election Officer on 18-8-2001 at 12-30 noon and the purport of the letter is that the petitioner forcibly obtained the declaration in Form No.19 in his favour. The contents of the said letter, according to the petitioner, are totally false and obtained by the 4th respondent from the irst respondent Election Officer under duress.
8. The first respondent Election Officer failed to administer the oath of the office and, in the circumstances, the petitioner claims to have submitted a representation dated 19-8-2001 to respondents 2 and 3 narrating the incident and requesting them either to confirm the declaration made in his favour or direct for recount of all the votes polled in the election. Respondents 2 and 3 did not take any decision whatsoever. The petitioner claims to have been duly elected as Sarpanch having secured majority of votes. The declaration given to the 4th respondent declaring him to have been duly elected as Sarpanch is impugned. In nutshell, this is the case of the petitioner.
9. The first respondent-Election Officer, Stage-II filed a detailed counter affidavit clearly narrating as to what transpired on the fateful days of 17-8-2001 and 18-8-2001. He is working as Executive Engineer, Irrigation Department. Obviously, he is a senior and responsible officer. A reading of the affidavit filed by him and statement made by him before the District Panchayat Officer in the enquiry held may reveal sorry state of affairs as to how the noble object of empowerment of people through the decentralisation of power is put to ridicule. The whole object is sought to be defeated by the powerful warlords. Democratic norms are thrown to winds.
10. It may be necessary to notice the averments made in the counter affidavit in somewhat detail. It is stated that immediately after the conclusion of the poll, the Election Officer along with other Presiding Officers commenced the counting of ballot papers at M.P.U.P. School, Reddicherla. After counting of the votes, it was found that the 5th respondent secured 77 votes, whereas the writ petitioner secured 896 votes as against the 904 votes secured by the 4th respondent. After completion of the counting, the Election Officer filled up Form No. 17 as is required under Rule 34(7) of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994 (for short 'the Conduct of Election Rules). It is clearly stated that at that stage, neither the petitioner nor the 5th respondent submitted any application in writing for recounting of the votes. In the circumstances, the Election Officer issued certificate of election to the 4th respondent under Rule 42 of the Conduct of Election Rules. Thereafter, the petitioner as well as respondents 4 and 5 left the counting hall. The Election Officer and other Presiding Officers were making arrangements to seal all the ballot papers and other election material as is required. It is stated that all of a sudden, the followers of the petitioner came to the counting hall and confined the Election Officer in a room and asked him to issue a certificate of election in favour of the petitioner. On refusal to do so, the Election Officer was manhandled and abused in unparliamentary language and further threatened with dire consequences. He was plainly told that he would not be permitted to leave the counting place unless such a declaration is issued by him in favour of the petitioner. He became helpless and having left with no other option, issued the certificate in favour of the petitioner. It is stated that even after such a declaration, the supporters of the writ petitioner continuously abused him and his staff and they were not permitted to seal the ballot papers.
11. The Inspector of Police, Singarayakonda came to the spot at around 9 P.M. on 17-8-2001 and rescued the Election Officer and took him to Komarole Police Station in his jeep with police protection. The supporters of the petitioner are alleged to have abused the Election Officer even in the presence of police personnel, Mandal Revenue Officer and Mandal Parishad Development Officer, Komarole. The Election Officer stayed in the police station throughout the night and left the police station in the early hours of 18-8-2001 and went to Mandal Parishad Development Office at Komarole.
12. The Mandal Parishad Development Officer was accordingly informed in writing as to what transpired in the matter. Immediately a fax message was sent to the District Election Authority-cum-District Collector, Prakasham District and also to the State Election Commission.
13. It is further stated that the followers of petitioner are still threatening him over phone and in person and that he is not in a position to discharge his duties as Executive Engineer at Cumbum due to threats of the followers of the petitioner. Thus, in detail the Election Officer narrates as to how and under what circumstances, he issued certificates of declaration to the petitioner as well as the 4th respondent.
14. It is clear from the counter affidavit filed by the first respondent-Election Officer that there has been no application as such filed by the petitioner in writing seeking recount of the polled votes.
15. In the counter-affidavit filed by the 4th respondent, it is stated that the claim of the petitioner that he had submitted an application for recount of the votes is an after thought. In the caveat petitions filed by him in this court as well as in the Election Tribunal there is no mention of his filing an application for recount of the votes. In the counter affidavit it is further stated that the entries were made in the result sheet as is required under Rule 34(7) of the Conduct of Election Rules. The report submitted by the Election Officer to the Assistant Election Authority-cum-Mandal Parishad Development Officer is absolutely clear in this regard.
16. The writ petitioner obtained a declaration in Form No.19 by putting the Election Officer under threat and coercion. it is alleged that the petitioner has deliberately disrupted the post-declaration process. This aspect of the matter is clearly stated by the Election Officer in the statement made by him on 28-8-2001 before the District Panchayat Officer-cum-Additional Election Authority.
17. It is asserted by the 4th respondent that he received majority of votes and accordingly the first respondent-Election Officer issued a declaration in Form No.19 and also administered oath of the office of the Sarpanch of Reddicherla Gram Panchayat on 17-8-2001 itself.
18. It is required to notice that the first respondent Election Officer made a statement before the District Panchayat Officer in an enquiry held into the matter on 28-8-2001 similar to the averments made in the counter affidavit. Some further details are mentioned as to what transpired on the fateful day.
19. The short question that falls for consideration is as to whether this court in exercise of its jurisdiction under Article 226 of the Constitution of India can make any declaration declaring the petitioner to have been elected as Sarpanch of the Gram Panchayat, Reddicherla? Whether this writ petition is maintainable?
20. As is evident from the pleadings, there is any amount of dispute between the parties as to the truth about the averments made in the reports submitted by the Election Officer. The Election Officer submits that he was confined in a room by the supporters of the petitioner and obtained a declaration under coercion. The Election Officer denied the allegation that he issued a declaration in favour of the 4th respondent under coercion. On the other hand, it is clearly stated that the 4th respondent secured majority of votes polled in the election and accordingly he was declared to have been duly elected as Sarpanch of the Gram Panchayat. It is the petitioner who is alleged to have obtained the declaration forcibly from the first respondent Election Officer. The contents of the letter dated 18-8-2001 alleged to have been sent to the Mandal Development Officer by the Election Officer, upon which reliance is placed by the petitioner, are disputed. On the other hand, it is stated by the Election Officer that what is stated by him in Ex.P3 report addressed to the Mandal Development Officer reflects the truth and correct state of affairs.
21. The allegations relate to the irregularities in the counting of votes. On account of such irregularities, according to the petitioner, the result of the election is vitiated. It is submitted that on a proper recounting of the votes, it would be evident that it is the petitioner who secured the majority of votes and not the 4th respondent.
22. Sri M. Chandrasekhar Rao, learned counsel for the petitioner submits that in the eye of law, there is no counting at all of the votes polled in the election held on 17-8-2001. It is submitted that the whole procedure adopted by the Election Officer is vitiated being contrary to the statutory rules. In such a situation, the remedy under Article 226 is available. Heavy reliance is placed upon the judgment of the Supreme Court in Surinder Kaur v. State of Punjab, . The said decision may have to be confined to the facts in that particular case. The decision does not lay down any law to the effect that the High Court under Article 226 of the Constitution of India can entertain a writ petition to resolve intricate and disputed questions relating to validity of an election and process of counting of votes.
23. It is not necessary to refer the other decisions to which a reference has been made by the learned counsel for the petitioner.
24. We have seen the controversy and the issue requiring the resolution. Even according to the petitioner, there are two sets of declarations issued by the Election Officer declaring the petitioner as well as the 4th respondent to have been elected as Sarpanch of the Gram Panchayat. But according to the Election Officer, the 4th respondent has secured majority of valid votes and accordingly a declaration was given to the 4th respondent only. The declaration given to the petitioner is vitiated since the same has been obtained under coercion. It is stated that the oath of the office has been administered to the 4th respondent.
25. It is thus clear that the Election Officer having counted the votes declared the 4th respondent to have been elected as Sarpanch of the Gram Panchayat. A number of disputed questions of fact arise for consideration and this court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot, record any findings in such a situation. The petitioner directly calls in question the election of the 4th respondent as Sarpanch of the Gram Panchayat. The declaration issued to the 4th respondent is impugned in this writ petition. The petitioner further seeks a declaration declaring him to have been elected as Sarpanch of the Gram Panchayat. On what basis this court should rest its decision and declare the petitioner to have been duly elected as Sarpanch of the Gram Panchayat?
26. The question as to whether any irregularities have been taken place in counting of the votes as alleged by the petitioner may have to be gone into only in a properly constituted election petition. Mere allegation that the Election Officer did not make any entries in Form No. 17 and thereby contravened the Conduct of Election Rules itself would not be enough to set aside the process of election. It is not possible for this court to decide as to whether the Election Officer failed to count the 55 votes, which were kept aside to decide about their validity. These allegations require a thorough enquiry and evidence.
27. In nutshell, the case of the petitioner is that the whole of the counting process is vitiated requiring recount of the votes polled in the election. Nothing prevented the petitioner to invoke the jurisdiction of the Election Tribunal by filing an election petition. This court cannot decide as to the validity of the declaration given to the 4th respondent and about its correctness in this judicial review proceeding.
28. It is also required to notice that there is no evidence of petitioner filing any written application for recounting of the votes. In the circumstances, it becomes difficult to believe that on an application filed by the petitioner, the Election Officer recounted the votes and found that the petitioner to have secured majority of votes on such recount. It is not even possible to decide as to whether there has been any recount at all.
29. Having regard to the facts and circumstances of the case, it is difficult to disbelieve the averments made by the Election Officer in the counter affidavit filed by him. No mala fades are alleged against the Election Officer. No animosity as such is suggested against the Election Officer. There is no justification to record any finding that the Election Officer acted in any partisan manner. At any rate, this court does not propose to express any opinion whatsoever on the disputed questions raised by the petitioner in this writ petition.
30. The result of an election declaring a particular candidate to have been duly elected cannot be the subject matter of a judicial review proceeding. It is not a case where the action of the State Election Commission or any circular or instruction issued is impugned in this writ petition. The dispute raised in this writ petition is a pure and simple dispute in relation to the election held on 17-8-2001. The declaration given to the 4th respondent as Sarpanch of the Gram Panchayat is squarely called in question. Article 243-O of the Constitution of India is a clear bar for making any enquiry into the validity of the election of a returned candidate.
31. The Supreme Court in Anugrah Narain Singh v. State of U.P., , observed that the bar imposed by Article 243-ZG is two fold. Validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. It may have to be. noticed that Article 243-ZG is analogous to Article 243-O of the Constitution of India. The same principle would be applicable in interpretation of Article 243-O of the Constitution of India.
32. For the aforesaid reasons, I do not find any merit in this writ petition.
33. This order, however, shall not preclude the petitioner from availing the remedies, if any, available to him in law and if any election petition has already been filed, the same may have to be disposed of on its own merits uninfluenced by the observations, if any, made in this order.
34. The writ petition fails and shall accordingly stand dismissed.