Andhra HC (Pre-Telangana)
G. Siva Kumar vs State Election Commissioner And Ors. on 5 December, 1995
Equivalent citations: 1996(1)ALT798, 1996 A I H C 2123, (1996) 1 ANDH LT 798
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri, V. Bhaskara Rao
ORDER Syed Shah Mohammed Quadri, J.
1. The petitioner seeks a writ a Mandamus directing respondents 1 to 3 to publish notification declaring the petitioner as the elected Sarpanch of Aranyam Kandriga Gram Panchayat of Narayanavaram Mandal in Chittoor District.
2. The election to the post of Sarpanch of the Aranyam Kandriga Gram Panchayat was conducted on 27-6-1995. The petitioner and the fourth respondent contested for the said post. After completion of the polling of votes, they were counted on the same day. It was found that both the petitioner and the fourth respondent got equal votes viz., 869 votes. On the application of the fourth respondent, the Election Commissioner, the first respondent herein, ordered recounting of votes on 21-10-1995. It appears that on recounting also both the petitioner and the fourth respondent secured 863 votes. In view of this position, the third respondent prepared and draw the lot which was found to be in the name of the petitioner. The fourth respondent, it is stated, created chaos and commotion alleging that the third respondent has not written the names of the contesting candidates on the chits; he had written the name of the petitioner on one chit and kept the other chit blank. In view of that allegation, a complaint was also said to have been lodged by the Mandal Parishad Development Officer, the fifth respondent herein, with the concerned police and the matter was reported to the District Collector and the District Election Authority, the second respondent herein. Apprehending that the authorities will direct repoll instead of declaring the results according to the lots drawn, the petitioner has filed this writ petition.
3. A common counter affidavit is filed by the fifth respondent for himself and for the second respondent viz., the District Collector and the District Election Authority. It is stated, inter alia, that in this case two candidates got equal number of votes. The recounting was ordered and was accordingly carried out pursuant to the orders of the second respondent dated 21-10-1995. The third respondent who is the Election Officer (Stage II) Aranyam Kandriga Gram Panchayat had conducted recounting which indicated that the petitioner and the fourth respondent secured 863 votes each. As there was equality of votes among the two candidates, to find out as the who secured higher number of votes, he has drawn lots as required under the Rules. When the lot was drawn, it went in favour of the petitioner but on the insistence by the other candidate when the other chit was opened, it was stated that it was blank and hence doubting that the Election Officer had committed fraud in drawal of lots, there was commotion and chaos all around. It is added that the matter was referred to the State Election Commissioner on 23-10-1995 by a fax massage for further orders. But in view of the interim orders of this Court, no further action is taken in the matter.
4. The fourth respondent in his counter affidavit states that in the recounting also, the Election Officer so managed and manipulated the counting that the petitioner and the fourth respondent got equal number of votes. Because of this, the fourth respondent did not sign the result sheet. Then, the Election Officer took two pieces of paper and wrote only the name of the petitioner in one of the pieces of paper which can be easily identified by a person specifically nominated for that purpose; the name of the petitioner was written on the top of the paper so that it could be easily identified. It is alleged that the drawing of lots by the Election Officer was fraud and the whole democratic process from the beginning of the election to the drawing of the lots, is a clear case of subversion of democratic process. He says that he has brought the matter to the notice of the District Collector and the District Election Authority and also made a representation to the State Election Commission requesting for ordering fresh election to the post of Sarpanch on 30-10-1995.
5. Sri Prabhakar Reddy, the learned counsel for the petitioner, submits that as soon as the recounting was done, there was no option for the Election Officer to declare the result consequent upon the drawal of lots. As this has not been done, the petitioner is entitled to a writ directing the respondents to declare the results. The learned Government Pleader appearing for respondents 1 to 3 submits that the matter has been referred to the State Election Commissioner, the first respondent, and the authorities will take appropriate action in accordance with the direction issued by the first respondent. Sri Veera Reddy, the learned counsel appearing for the fourth respondent, submits that the Election Officer, the third respondent has played fraud in not writing the name of the contesting respondent on one of the chits and as such managed the whole show by writing the name of the petitioner on one chit and therefore such drawal of lots cannot be treated as the one contemplated under Rule 36 of the Rules and the petitioner is not entitled to the writ prayed for.
6. The short question that arises for consideration in this case is, having regard to the facts and circumstances of the case, whether the petitioner is entitled to have the result of the election declared according to the lots drawn by the Election Officer.
7. It would be relevant to refer to certain provisions of the Act and the Rules before we advert to the facts of the case. Section 201 of the A.P. Panchayat Raj Act, (for short 'the Act') which is enacted to fall in line with Article 243 K(1) of the Constitution, provides that the elections to the Panchayat Raj institutions shall be held under the supervision and control of the State Election Commissioner and for this purpose it shall have power to give such directions as it may deem necessary to the Commissioner, District Collector or any officer or servant of the Government and the Panchayat Raj Institutions so as to ensure efficient conduct of the elections under the Act. We may also notice here the rules framed under the Act viz., the A.P. Panchayat Raj (Conduct of Election) Rules, 1994. Rule 3 of the said Rules directs that the State Election Commissioner shall be the election authority for the purpose of conduct of elections under the Act. It further declares that the superintendence, direction, control and conduct of election of Sarpanch and Members of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads in the State, in ordinary vacancies and casual vacancies shall be his responsibility. It may be useful to note here the provisions of Article 243 Q(b) of the Constitution of India which mandates that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of the State. The relevant provision of the said Act is Section 233 which says that no election 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. We have already referred to the Rules made in that behalf. From a combined reading of the above provisions it is evident that the Constitution vests power in the State Election Commissioner for conduct of elections and he can also give necessary directions for proper conduct of elections and this Court will not interfere in the exercise of power by the said authority. The expression 'conduct of election' has been interpreted by the Supreme Court in Mohinder Singh v. Chief Election Commissioner, . While summarising the position Justice V.R. Krishna Iyer speaking for the Supreme Court has laid down that election in that context has a very wide connotation commencing from the Presidential Notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate. Though that case arose under the Representation of People Act, the principle laid down thereunder applies to the elections conducted under the Act. In the context of the elections under the Gram Panchayat conducting elections would mean the process commenced from the date of notification by the election authority till the date of declaration of the results.
8. Now reverting to the Rules, it would be useful to notice that Rule 34(7) of the said Rules provides that, after the counting of ballot papers contained 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 No. 17 and announce, the particulars. After those particulars are announced, the next stage would be if the candidate or his agent so desires and applies in writing to the Election Officer for recounting of votes as contemplated under Rule 35(1) of the Rules and the Election Officer orders recounting, he has to make a reasoned order in writing. He has also the discretion to reject the application for recounting where it appears to him to be frivolous or unreasonable. Having regard to the result of the recounting, the entries made in Form No. 17 under Rule 34(7) of the Rules will have to be amended to the extent necessary and the result as per amended entries, has to be announced. Sub-rule (5) of Rule 35 enjoins that, after the results are announced, the Election Officer shall complete and sign the result sheet in Form No. 17 and prohibit receiving/entertaining any application for second recounting. The situation of equality of votes is dealt with in Rule 36 which is in the following terms "Rule-36: Equality of Votes: If, after the counting of the votes is completed and equality of votes is found to exist between any candidates and the addition of one vote will lead to any of those candidates being declared elected, the Election Officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received the additional vote."
A plain reading of the above Rules makes it very dear that where there is equality of Votes on counting/recounting and addition of one vote would lead to declaring one of the candidates as elected, the Election Officer shall forthwith decide between those candidates by lot and see as if the candidate on whom the lot falls had received the additional vote. This Rule contemplates a fair and bona fide decision by the Election Officer in conducting lots. He has to write the names of the two candidates who have secured equal votes on two pieces of paper secretly and draw the lot between the two and proceed in accordance with Rule 36 by adding the vote to the person on whom the lot had fallen and declare the results. Where fraud has been played by the Election Officer by drawing lots improperly either by writing the name of the same candidate on two slips of paper or writing the name of one person in one chit and leaving the other chit blank and thus drew the lot, such action cannot be treated as a valid action under Rule 36 and a person who seeks to have the benefit of such lot cannot claim declaration of result based on such drawal of lot. It is well settled that fraud or mala fides vitiates every action even if it is otherwise valid. In the instant case though the counter of the fifth respondent does not clearly say about the result of the investigation by the said Election Authority, the second respondent, on whose behalf also the fifth respondent has filed the counter affidavit does not indicate about the result of the investigation, and to that extent, in our view, the fifth respondent is guilty of not stating correct and true facts to this Court. Yet, from a perusal of the record, it is dear that he got the report of the second respondent sent to the first respondent stating that when the second chit was verified, it was found to be without any name, therefore the drawing of lot by the third respondent is vitiated and confers no benefit on the petitioner so as to have the results declared in accordance with such drawal of lot.
9. We have already noted that the second respondent has reported the matter to the first respondent who has supervision control of the conduct of election to the Gram Panchayat. It is for him to take the decision and this Court will not express any opinion on the nature of direction to be issued by him. We are informed that the first respondent has not taken the decision because of the pendency of the writ petition.
10. In the circumstances, we dismiss the writ petition leaving it open to the first respondent to decide the matter having regard to the facts and circumstances of the case.
11. Subject to the above observation, the writ petition is dismissed with costs.