Point of law: If there is only one, the Returning Officer shall forthwith validly nominated candidate declare such candidate is duly elected in Form X send the same to the State Election Commission, Election Authority and the District Election Authority.

COMMON ORDER:

With the consent of all the appearing counsels the Writ Petitions themselves were taken up for hearing. The lead was taken by Sri C.V. Mohan Reddy, learned Senior Counsel appearing for Sri Vivek Chandra Sekhar, learned counsel for the petitioner in W.P.No.4154 of 2021.

In all the Writ Petitions the challenge is the same. It is against the order dated 18.02.2021, by which State Election Commission sought to review the unanimous elections in the State of Andhra Pradesh for the Panchayat, ZillaParishad etc. The proceedings dated 18.02.2021 (which was issued by the State Election Commission) gave a direction to the District Collectors to enquire into the cases of forced withdrawals etc., of nominations from contestants, who have given a clear complaint along with some cogent material. The State Election Commission has issued this order basing on the complaints said to have been received by it from various corners of the State.

Learned Senior Counsel who takes the lead points out that last date for withdrawals of the candidate was 14.03.2020. The elections were however postponed due to Covid and later the process was resumed in 2021. He points out that the petitioner inthis case is issued a Form-10 certifying that he is elected. Later a formal declaration of results was also issued on 14.03.2020 in Form-29 declaring the petitioner as elected. The contention of the learned Senior Counsel is that the State Election Commission becomes functus officio after this and he does not have the power to take any action.

He relies upon the Andhra Pradesh Panchayat Raj (Conduct of Election) Rules-2006 (in short “Rules-2006”) and draws the attention of this Court to the entire procedure stipulated from Rules 4 to 16. By taking the Court through the Rules, learned Senior Counsel argues that this is a self-contained code on this aspect. Rule 16 (2) of Rules 2006, which is relied upon by the learned Senior Counsel is as follows:

“16(2) If there is only one, the Returning Officer shall forthwith validly nominated candidate declare such candidate is duly elected in Form X send the same to the State Election Commission, Election Authority and the District Election Authority.”

Therefore, he argues that as per Rule 16 (2) the Returning Officer has no choice but to immediately declare an election if there is one candidate elected and send it to the election authority. He also draws the attention of this Court to Rule 63, which states that as soon as after a candidate has been declared under Rule 16 (unanimous) or after contest under Rule 62 a Certificate of Election in Form-29 “shall” be given. He submits that thereafter if anybody is aggrieved for any reason whatsoever he / she has to file Election Petition under Section 233 of the Panchayat Raj Act. Learned Senior Counsel, while denying the veracity and correctness of the complaint argues that the Election Tribunal does not have the power to declare an election as void and that any person aggrieved by an election has to approach the Tribunal. He draws the attention of the Rules framed in 1995 for the Election Tribunals. Relying upon A.C.Jose v Sivan Pillai and Others, (1984) 2 SCC 656 learned Senior Counsel argues that the State Election Commission cannot act contrary to the Statue / Rules. He submits that only if the Statute / Rule is silent the State Election Commission can act as per the situation.

Relying upon the counter affidavit he submits that basing on some material, dated 16.03.2020, which is not produced in original but is referred to in the affidavit, the State Election Commission wanted to act contrary to the statue. He submits that what mentioned in the affidavit cannot be treated as evidence. He also points out that in Palamanda Prabhakar and Ors., v. State Election Commission, Hyderabad, AP and Ors., (2007) 1 ALD 265 and Kayati Jayapal Reddy v State Election Commission and Another, (2001) 6 ALD 136 learned Judges of this Court held that the proper remedy in such cases is an Elect