Andhra Pradesh High Court - Amravati
Order vs 2 on 28 December, 2022
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
WRIT PETITION No.5032 of 2021
ORDER:-
This Writ Petition for mandamus is filed to declare the action of respondents in not recounting the votes polled in the election held for the post of Sarpanch of Krishnapuram Grama Panchayat, Pamidimukkala Mandal, Krishna District, as illegal, arbitrary and violative of Article 14 of the Constitution of India and consequently sought direction to recount the votes polled in the said election held on 21.02.2021.
2. Election for the post of Sarpanch of Krishnapuram Grama Panchayat, Pamidimukkala Mandal, Krishna District, was held on 21.02.2021. The petitioner is one of the contesting candidates in the said election. After polling of votes is completed, the process of counting the votes took place. 2310 votes were polled according to the petitioner out of the total votes of 2624. It is stated that the petitioner got 1122 votes and the other candidate got 1118 votes in the said election and 53 votes were declared as invalid and 17 votes were polled in favour of NOTA. However, it is stated that the other candidate, who got 1118 votes, was declared elected in the said election by 2 respondent No.3 Returning Officer, even though the petitioner got highest votes of 1122 votes in the said election.
3. It is stated that the petitioner has made a written request to respondent No.3 to recount the votes and then to declare the election. It is stated that her request was not considered and respondent No.3 did not order to recount the votes and he has declared that the other candidate, who got less votes than the petitioner, is elected in the said election. Therefore, the petitioner is before this Court by way of filing this Writ Petition claiming the aforesaid relief.
4. Respondent No.3 filed counter stating that total votes are 2310 and postal ballots are 7 and total votes polled are 2303 and it is stated that a person by name Smt. V. Balusulamma got 1122 votes and the petitioner herein got 1118 votes and 17 votes are polled for NOTA and 53 are declared invalid out of the said total votes of 2310. It is stated that Smt. V. Balusulamma has won the election by a margin of 4 votes and the Returning Officer has declared her as the person who won the election. It is then stated that after declaration of the election, the petitioner has requested the Returning Officer to recount the votes and respondent No.3 herein asked her to make a written 3 request and she did not make any such written request to recount the votes. So it is stated that as per instructions of the State Election Commission published in Chapter XVI (18) in handbook for Returning Officer, the procedure to be followed for recounting of votes is specified therein and as the request for recounting of the votes is not made in accordance with the said procedure that the same is not considered. Therefore, it is prayed to dismiss the Writ Petition.
5. Heard learned counsel for the petitioner and Sri S. Vivek Chandrasekhar, learned Standing Counsel for State Election Commission appearing for respondent Nos.1 and 2 and learned Assistant Government Pleader for Panchayat Raj appearing for respondent No.3 and learned Assistant Government Pleader for Revenue appearing for respondent No.4.
6. As per the details of the votes that are polled to the candidates who contested the election which are furnished in the counter filed by respondent No.3 who is the Returning Officer of the said election, 1122 votes were polled in favour of the elected candidate Smt.V. Balusulamma, whereas 1118 votes were polled in favour of the petitioner herein. So, according to respondent No.3, the said Smt.V. Balusulamma won the 4 election by a margin of 4 votes. Now, it is the case of the petitioner that 1122 votes were polled in her favour and 1118 votes were polled in favour of the said Smt.V. Balusulamma as per the information furnished to her by her counting agent. So, it is stated that request was made by the petitioner to respondent No.3 to recount the votes.
7. Rule 60 of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, is relevant in the context to consider. It reads thus:
"60. Recount of Votes:- (1) After such announcement has been made under rule 59, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer for recounting of the votes either wholly or in part stating the grounds on which, he demands such recount.
(2) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject in wholly if it appears to him to be frivolous or unreasonable.
(3) Every decision of the Returning Officer under sub-rule (2) shall be in writing and contain the reasons therefor.
(4) If the Returning Officer decides funder sub-rule (2) to allow a recount of the votes either wholly or, in part he shall-
(a) do the recounting in accordance with rule 56.
(b) amend the result sheet in Form - XXVI to the extent necessary after such recount; and
(c) announce the amendments so made by him.
(5) After the total number of votes pulled by each candidate has been announced under sub-rule (4), the Returning Officer shall complete and sign the result sheet in 5 Form - XXVI and no application for a further or second recount shall be entertained thereafter.:"
8. A reading of the aforesaid Rule makes it manifest that after the process as contemplated under Rule 59 is completed and entries are made in the results sheet in form XXVI and the particulars are announced, the candidate, who contested the election or in his absence, his election agent may apply in writing to the Returning Officer for recounting of the votes. Therefore, Rule 60 clearly envisages that a request for recounting of votes shall be made in writing. It is the case of the respondent that no such request in writing was made by the petitioner for recount of votes as contemplated under Rule 60 of the aforesaid Rules. However, during the course of hearing the Writ Petition, learned Assistant Government Pleader for respondent No. 3 would submit that only an oral request was made before respondent No.3 by the petitioner to recount the votes and the 3rd respondent has asked the petitioner to make a written request and she came with a belated written request after the entire process of election is completed and as such the said written request was not entertained.
9. Therefore, when the petitioner did not make any written request as contemplated under Rule 60 of the aforesaid Rules 6 and when she made a belated written request after the entire process of election was completed, she cannot maintain the present Writ Petition seeking a direction to respondent No.3 to recount the votes. In the said circumstances of the case, the only remedy of the petitioner is to challenge the said election by way of filing an Election Petition before the Election Tribunal, if she is of the firm view that she got more votes than the votes polled to the elected candidate.
10. Therefore, the Writ Petition is dismissed. No costs.
Miscellaneous petitions, if any pending, in the Writ Petition, shall stand closed.
______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 28.12.2022 ANI/AKN 7 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY WRIT PETITION No. 5032 of 2021 Date: 28-12-2022 AKN