The Election Commission cannot override the Act or the Rules and pass orders in direct contravention to the mandate contained in the Act or the Rules.

SYED SHAH MOHAMMED QUADRI, J.

( 1 ) THESE two writ petitions arise under the same circumstances and raise common questions of law, therefore they are heard together and are being disposed of by a common Judgment.

( 2 ) TO appreciate the questions involved in these cases we shall refer to the facts stated in W. P. No. 24086 of 1995.

( 3 ) CONSEQUENT upon the declaration of the Government to hold elections for the Gram Panchayats in the State, elections to the post of Sarpanch of mittanandhimalla Gram Panchayat were held on 3-7-1995. The petitioner and the fourth respondent contested for the said post Counting of the votes was done on the same day, at about 4-30p. m. by the Election Officer, the first respondent. The result of the counting was made known to the parties on making entries in Form-17 which shows that the petitioner secured 329 votes; and the fourth respondent secured 328 votes; 24 votes were found to be invalid and were rejected. A batch of Writ Petitions was pending in this Court wherein declaration of results of elections to the Gram Panchayats, was stayed by a division Bench of this Court. However, after disposal of the batch of Writ petitions appeals were filed in the Supreme Court. The Supreme Court was pleased to direct announcement of results of all the electionsto the Gram panchayats in the State. It appears, the fourth respondent had filed an application for recounting of votes. The Election Officer No. II of mittanandhimalla Gram Panchayat, the second respondent, issued a notice dated 20-10-1995 that the votes would be recounted on 21-10-1995 as per the instructions of the Revenue Divisional Officer, Narayanapet, the third respondent. The petitioner alleges that at the instance of the local M. L. A. belonging to the ruling party the recounting was ordered. The result of the recounting of votes was that the petitioner got 326 votes whereas the fourth respondent got 327 votes. The rejected votes went up from 24 to 28. Accordingly, the results of the election were declared. The petitiners says that the third respondent has no power either under the Andhra Pradesh panchayat Raj Act (for short "the Act") or under the Andhra Pradesh Panchayat raj (Conduct of Elections of Members and Sarpanch of Gram Panchayats, members of Mandal Parishadsand Members of Zilla Parishads) Rules, 1994 (for short "the Rules") to order recounting, as such the recounting conducted pursuant to the order of the third respondent and the consequent declaration of the result is illegal and without jurisdiction. He, therefore, prayed for a writ of Mandamus declaring the action of the third respondent in issuing the order to recount the votes and the consequential recounting and the declaration of the result as illegal and arbitrary and for a further declaration that the petitioner was duly elected Sarpanch of the above said Gram Panchayat.

( 4 ) NOTICE before admission was ordered by this Court on these Writ petitions.

( 5 ) THE first respondent filed a counter affidavit stating that he was appointed as Election Officer, Stage-II (1st phase) for conduct of elections to mittanandhimalla Gram Panchayat, narva Mandal for the election held on 2-7-1995. he states that the total number of votes polled on that date are 681, out of which the petitioner secured 329 votes, the fourth respondent secured 328 votes and 24 votes were found to be invalid.

( 6 ) IN the counter-affidavit of the second respondent it is stated that pursuant to the orders of the Supreme Court in SLP Nos. 14407/95 to 14412/95 and 16608/95 to 16617/95 to declare the result of the elections to the Gram panchayats in the State of Andhra Pradesh, the State Election Commissiorier issued notification No. 531/sec-B/95-9 dated 19-10-1995 directing all the district Election Authorities to forthwith declare the results of the elections to gram Panchayats through the Stage-II Election Officers. It was also directed that if for any reason the Stage-II Election Officers were not available, t

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