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Andhra Pradesh High Court
Judges : B.SUBHASHAN REDDY, Y.V.NARAYANA
Shaik Khasim Bi - Appellant
Versus
Principal Magistrate (Election Tribunal), Guntur - Respondent
Decided On : 04-28-99
A.P Panchayat Raj Act, 1994 – Section 201 – Andhra Pradesh Panchayat Raj - Rules, 1995 - Rule 35 (1) – Election - Assailing the order - election of the Sarpanch ordered re-election - Against order selling aside the election, WP is directed against the consequential direction for conducting the fresh election as against the prayer for declaring her as Sarpanch - Cases have checkered history. In order to avoid confusion, we refer the parties as arrayed in the Election Petition was the election petitioner, while was the 1st respondent - We refer to them accordingly - Election Officer will be referred to as the 3rd respondent and the State Election Commission as the 6th respondent - Post of Sarpanch Gram Panchayat of Medikonduru Mandai of Guntur District was reserved for women candidates. It comprises of 10 wards for electing the woman-sarpanch. The petitioner and the 1st respondent were the contestants. Elections were conducted between 7a. m and 1 p. m. Counting began in the afternoon of the same day. Total number of votes polled were 1072. After counting, it was announced that the petitioner had secured 512 votes and the 1st respondent had secured 509 votes. 51 votes were declared as invalid. – Held - 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 react 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 cases, as there is no trace of any application filed by the 1st respondent before the 3rd respondent for recounting, the recounting made only pursuant to the notification 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 - Recounting held is illegal and bad and as a necessary corollary, the petitioner was entitled to be declared as the Sarpanch of Mangalagiripadu Gram Panchayat We do so and direct the 3rd respondent to install the petitioner as the Sarpanch of the above Gram Panchayat and administer oath of allegiance, within a period of one week from the date of receipt of a copy of this order - WP No. 14129 of 1997 is allowed - while WP No. 25522 of 1997 is dismissed– Writ Petition is allowed.
( 1 ) THESE two writ petitions have been filed assailing the order dated 28-4-1997 passed by the Principal Munsif Magistrate (Election Tribunal) Guntur in EOP No. 18 of 1996.
( 2 ) BY the said order, the above Tribunal while selling aside the election of the Sarpanch, namely, Suit. Shaik Mahahoab Den, ordered re-election. Against the order selling aside the election, WP No. 25522/97 was filed, while WP No. 14129/97 is directed against the consequential direction for conducting the fresh election as against the prayer for declaring her, namely, Smt. Shaik Khasim Bee, as the Sarpanch.
( 3 ) THE cases have checkered history. In order to avoid confusion, we refer the parties as arrayed in the Election Petition. Smt. Shaik Khasini Bee was the election petitioner, while Smt. Shaik Mahuboob Bee was the 1st respondent. We refer to them accordingly. The Election Officer will be referred to as the 3rd respondent and the State Election Commission as the 6th respondent.
( 4 ) THE post of Sarpanch of Mangalagiripadu Gram Panchayat of Medikonduru Mandai of Guntur District was reserved for women candidates. It comprises of 10 wards for electing the woman-sarpanch. The petitioner and the 1st respondent were the contestants. Elections were conducted on 27-6-1995 between 7a. m and 1 p. m. Counting began in the afternoon of the same day. Total number of votes polled were 1072. After counting, it was announced that the petitioner had secured 512 votes and the 1st respondent had secured 509 votes. 51 votes were declared as invalid.
( 5 ) THE 1st respondent was dissatisfied with the counting, but there is nothing on record to show that she has sought for recounting before the 3rd respondent. It is needless to mention that an application need to be made for recounting, but there is not trace of any such application. However, it is on record that the 1st respondent had sent a representation to the 6th respondent stating that there were irregularities in the process of counting. What all she has staled in the representation is that (he 3rd respondent had colluded with the petitioner and even. , though, some votes were invalid, they were counted in favour of the petitioner and in spite of the objections raised by her agents, the same were not taken cognizance of and in a hurry, declaration was made that the petitioner was elected as the Sarpanch and that she had issued a telegram on 28-6-1995 to conduct recounting. She has stated that a request was made to the 3rd respondent to recount the votes, but the same was refused and that on the other hand, 3rd respondent had used police force against her and her agents. Stating so, she sought the relief from the 6th respondent for recounting of the votes. This representation was made to the 6th respondent on 29-6-1995 with copies to the District Collector, Guntur as also the Revenue Divisional Officer, Guntur, with a request to take necessary steps to recount the votes.
( 6 ) AS there was no response to her representation, the 1st respondent had filed Writ Petition No. 14231/95 seeking direction against the 6th respondent and the District Collector, Guntur and the Revenue Divisional Officer, Guntur to recount the votes polled on 27-6-1995 for the post of Sarpanch of Mangalagiripadu Grama Panchayat. The petitioner was made the 4th respondent in the above ease. In WP MP No. 17388/95, interim directions were sought for to recount the votes, but no interim relief was granted. However, it was observed that election held on 27-6-1995 will be subject to the result of the writ petition. It is pertinent to mention that the above writ petition was filed on 7-7-1995 which came up on 11-7-1995 for admission and the same was admitted, but interim orders were not granted as stated above. Meanwhile, notification No. 531/ SEC-B/95-B, dated 26-7-1995 was issued by the 6th respondent, responding to several petitions received for recounting including that of the 1st respondent as mentioned above and some g
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