Andhra HC (Pre-Telangana)
Uppari Susheela vs The State Election Commissioner And ... on 21 November, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. Has the High Court any jurisdiction in a writ proceeding to declare a person to have been wrongly elected is the question raised in this appeal.
2. The appellant and the fifth respondent contested the election for the office of Sarpanch of Doulthabad Gram Panchayat wherefor polling was held on 17.8.2001. 2790 votes were polled in the said election. The Election Officer declared the fifth respondent herein to have been elected as Sarpanch with a majority of 12 votes, allegedly without counting the votes polled in Ward No.1. 206 votes admittedly were cast in the said ward. A certificate in Form No. XVII was issued in favour of the fifth respondent. On appellant's bringing the said irregularity to the notice of the Election Officer, counting of votes was recommenced. Before recounting the appellant obtained 715 votes and the fifth respondents obtained 727 votes. Upon recounting the appellant is said to have got 782 votes, whereas the fifth respondent got 768 votes. A certificate was issued in favour of the appellant on 17.8.2001, which is in the following terms:
CERTIFICATE Dated: 17-8-2001.
Certified that Smt. U. Susheela W/o. Bixapathi, Sarpanch candidate of Grama Panchayat, Doulatabad G.P. Hathnoora (M) of Medak District has got 715 votes in the counting and on plea of candidate 2nd counting taken up, since 1st Ward Box Sarpanch votes has not been included. After counting missing box votes Smt. U. Suseela has secured 782 votes with sufficient majority for Sarpanch of Doulatabad. Hence I declare that Smt. U. Suseela is elected as Sarpanch, Doulatabad G.P. Sd/-
S. Maruthi Dated: 17-8-2001 Election Officer, Stage-II Doultabad (GP) Mandal Hathnoora Dist. Medak.
3. As the appellant, despite the said certificate, was not handed over the office of Sarpanch, she filed the writ petition praying for the following relief:
....to issue a writ of Mandamus or any other appropriate writ or writs, order or direction, declaring the action of the respondents in not handing over charge to the petitioner for the post of Sarpanch of Doulathabad Gram Panchayat, Hathnoora Mandal, Medak District, pursuant to the declaration of results made on 17.8.2001, as illegal, arbitrary and without jurisdiction and consequently direct the respondents to forthwith hand over charge of above said Gram Panchayat to the petitioner.
4. The learned single Judge posed the following questions for determination:
1. Whether the declaration issued to the 5th respondent in the prescribed form declaring her to have been elected as Sarpanch of Doulathabad Gram Panchayat can be set aside in this writ petion?
2. Whether the writ petition is maintainable?
5. It was held: i) a writ petition is not maintainable as the disputed questions of fact were involved therein having regard to the decision in Writ Petition No. 17746 of 2001, ii) Article 243-O of the Constitution of India would operate as a bar to call the election of a returned candidate in question, iii) the Counter affidavit filed by the Election Officer does not inspire any confidence, iv) the declaration issued to the appellant is not in accordance with the conduct of Election Rules and v) the request for recounting of votes was made orally and not by way of filing an application by the appellant.
6. The contention of the parties centers round the jurisdiction of this Court to entertain a writ petition having regard to the provisions contained in Article 243-O of the Constitution of India, as also the fact that in terms of Election Tribunal Rules, an application before the Election Tribunal can be filed.
7. The Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter referred to as "the said Act") and the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994 (for short "Election Rules") lay down the procedure as to how a declaration should be made in favour of a person who is said to have been elected. The said Rules have been framed in exercise of powers conferred by sub-section (1) of Section 268 read with Sections 8, 11 to 15, 148, 149, 151, 153, 154, 177 to 179, 182 and 183 of the said Act. Rule 32 of the Election 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 upon 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 all 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. Rule 35 provides for recounting of votes. Rule 41 provides that the Election Officer shall declare in Form 18 the candidate to whom the largest number of valid votes have been given and certify the return of election in Form 17. The Election Officer under Rule 42 shall grant a certificate to the candidate who has been declared to have been elected.
8. It is also pertinent to mention that the Election Commission has issued a Circular directing all the Election Officers to recount the votes when the margin of votes between the successful and unsuccessful candidates is one per cent of the total votes polled.
9. We will proceed on the basis that there exists an alternative remedy by way of filing election petition. Does that mean that the jurisdiction of this Court is totally barred?
10. In a democratic polity all citizens are entitled to take part. Part IX-A of the Constitution has been inserted in the Constitution by reason of Constitution (73rd Amendment) Act so as to enable the people at the grass root level to govern their own village. The provisions of the Act and the Rules framed thereunder cast statutory duties which are imperative in nature upon the Election Officer. If such statutory duties are not performed by the statutory authorities, it is trite, judicial review would be maintainable. It is also trite that a statutory authority has inherent jurisdiction to rectify its own mistake. In the instant case, there does not exist any disputed question of fact. The assertion made by the appellant herein to the effect that while counting the votes the votes polled in the ballot box of Ward No.1 had not been counted, is not denied or disputed.
11. Before a person is said to have been declared elected, various certificates in Form Nos. 15, 16, 17 and 18 are required to be issued. Rule 41, as noticed hereinbefore, makes the declaration in Form 18 to the effect that the candidate mentioned therein has been duly elected to the office of Sarpanch, imperative. In the absence of such declaration, an election petition would not be maintainable. If the statutory requirement in making a declaration in favour of fifth respondent herein had not been complied with, election in the considered opinion of this Court can be declared to be illegal even in exercise of jurisdiction under Article 226 of the Constitution of India. In a case of this nature, prejudice of the writ petitioner/appellant is writ large on the face of the record. Even the record shows that the columns 3 to 6 and 10 in Form 17 have not been filled up. The said form, evidently, had not been issued in terms of Rule 34 (7) of the Election Rules. Further more, the declaration of result in favour of fifth respondent, particularly in the absence of issuance of certificate in terms of Form 18 being not in accordance with law, the fifth respondent could not assume the office of Sarpanch.
12. Availability of public law remedy may have to be considered in the aforementioned backdrop.
13. In DIGVIJAY MOTE v. UNION OF INDIA, it has been held:
The conduct of election is in the hands of the Election Commission which has the power of superintendence, direction and control of elections vested in it as per Article 324 of the Constitution. Consequently, if the Election Commission is of the opinion that having regard to the disturbed conditions of a State or a part thereof, free and fair elections cannot be held it may postpone the same. Accordingly, on account of unsettled conditions, the elections in the States of Assam & Jammu and Kashmir could be postponed. However, this power is not unbridled. Judicial review will still be permissible, over the statutory body exercising its functions affecting public law rights. The review will depend upon the facts and circumstances of each case.
14. In ELECTION COMMISSION OF INDIA v. UNION OF INDIA, [1995] SUPP.[3] SCC 643, it has been held:
While we reiterate the judicial perception as to the constitutional position and the plenitude of the powers of the Election Commission as a high and exclusive body charged with the duty, at once sensitive and difficult, of overseeing free and fair elections in the country and that its perceptions of the imperatives for a free and fair elections are not to be interfered with by the courts, we must also indicate that there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts. Whether the blanket suspension of the electoral process purported in the order dated 2/8/1993 is justiciable on that principle of judicial review is eminently arguable. But one thing seems clear: the jurisdiction of courts would not extend to issuing directions to the Election Commission for the conduct of particular polls on particular dates independently of the perception by the Commission as to their feasibility and practicability consistent with what may be needed to ensure the purity of the electoral process. On this aspect we have reservations about the permissibility of the various interlocutory orders of the High courts which may have the effect and implications of compelling the Election Commission to conduct polls on particular dates and also to follow those events up to their sequential and logical ends.
15. Yet again in K. VENKATACHALAM v. A. SWAMICKAN, , the Apex Court has considered the entire gamut of the jurisdiction of the High Court under Article 226 of the Constitution of India. In the fact of that case wherein the appellant before the Apex Court found to have been impersonated a person taking advantage that such person bears his first name, it was held that the same amounts fraud to the Constitution. It was held:
In view of the judgment of this Court in the case of ELECTION COMMISSION OF INDIA v. SAKA VENKATA RAO, , it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to this election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions of the Act for the appropriate relief.
16. In SHAIK KHASIM BI v. PRINCIPAL MAGISTRATE (ELECTION TRIBUNAL), [DB], a Division Bench of this Court held that an Election Officer is entitled to recount the votes if a requisition is made and if he is satisfied about the said requisition. Such satisfaction in a fact situation of this nature, in our opinion, need not be by filing an application, which is ordinarily required to be done. In the instant case, a mistake committed by statutory authority was pointed out. He in the aforementioned situation was entitled to rectify his mistake. Such grave mistake, we may observe, has correctly been rectified by the Election Officer, which was a part of his statutory duty. In that case, it has been held:
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 that if the difference of votes is 1% or less of the total number of votes polled, then there should be a recount.
17. The learned Judges observed:
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 order recounting in case the difference of votes is 1% or less of the total number of votes polled. Concisely speaking, the 6th 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 Pradesh 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 read 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 case, 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.
18. However, the dicta of the Division Bench to the effect that such recounting could be done only on an application must be understood to be confined to the fact of the matter obtaining therein. The said notification, in our opinion, per force would apply to a case where glaring mistake has been brought to the notice of the Election Officer when he satisfies himself that he had committed a mistake.
19. In K. RAMULU v. THE COLLECTOR AND DT. EL. OFFICER, 2001 [2] DT [AP] 179, this Court was concerned with the validity of the order dated 1.7.2001 whereby the claim of the petitioner to contest the election was rejected. Having regard to various decisions of this Court as also the Apex Court, this Court refused to exercise its jurisdiction. It is well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is trite that a little difference in fact or an additional fact may lead to different conclusion.
20. Although the relief sought for by the appellant herein may not be granted under Article 226 of the Constitution of India, but the Court has inherent power to mould the relief. Such relief can be moulded having regard to the materials brought on record by the parties and on the basis of the admitted facts.
21. As in the instant case, the Election Officer has committed a manifest error in declaring fifth respondent as having been validly elected as Sarpanch, we are of the opinion that the writ petition must succeed and it must be declared, keeping in view the fact that mandatory provisions of the statute had not been complied with, that the decision of the Election Officer in issuing a certificate in Form 17 in favour of the fifth respondent was ultra vires. In that view of the matter, fifth respondent must be held to have not been validly declared to be elected.
22. In view of the above, the District Collector is hereby directed to appoint an eligible person as an Election Officer, who shall recount the votes and proceed to declare the result in accordance with law.
23. The writ appeal is allowed with the aforementioned directions. The judgment and the order of the learned single Judge is set aside. There will be no order as to costs.