WP/25496/2006 of K.THIMMA Naidu Vs The Returning Officer, Anantapur Rural Grama Panchayath on 22 December 2006

ORDER:

This Court issued Rule Nisi on 06.12.2006. Fourthrespondent filed counter-affidavit. Heard Sri V.V.Anil Kumar,learned counsel representing petitioner, Sri V.V.Prabhakar Rao,learned counsel representing respondents 1 to 3 and Sri M.SubbaReddy, learned counsel representing respondent No.4.

2. The writ petition is filed for a writ of Mandamus declaringaction of the respondents 1 and 2, as illegal, arbitrary and againstthe provisions of A.P. Gram Panchayat Act; and consequently setaside the election of Anantapur Gram Panchayat conducted on 01.12.2006 and pass such other suitable orders.

3. It is stated that the second respondent issued electionnotification for election of sarpanch, Anantapur Rural GramPanchayat on 18.11.2006 and as per the election notification thecandidates can file their nominations from 18.11.2006, last date forfiling of nominations is 21.11.2006, the date fixed for scrutiny ofnominations is 22.11.2006, for withdrawal of candidature andpublication of contesting candidates is also fixed on 22.11.2006. As per the election schedule, polling date is fixed on 01.12.2006and on the same day counting of votes and declaration of resultalso be announced. It is also stated that the petitioner and the 4[th]respondent filed their nominations for the said post on 18.11.2006before the first respondent and the first respondent allotted Door(Talupu) symbol to the petitioner and Gas Stove symbol to the 4[th]respondent. The contest is between the petitioner and 4[th]respondent only as there are no other candidates in the fray. It isalso stated that the 4[th] respondent with the connivance of the firstrespondent committed several irregularities/malpractice. TheReturning Officer i.e., first respondent insisted the voters to putseal on Gas Stove symbol. It is also stated that on the day ofpolling, the police officials terrorized the voters, took the mainsupporters of the petitioner into custody and thereby did not allowthem to franchise their vote.

4. It is also stated that after completion of polling the ReturningOfficer had taken up counting of votes in the presence of thepetitioner, 4th respondent and agents. Some of the votes polled in favour of the petitioner were declared invalid and the firstrespondent overruled the objections of the counting agents. Evenvotes polled in favour of the petitioner were put into the tray of the4[th] respondent. It is also stated that after counting, firstrespondent declared that 4[th] respondent won the election. It is alsofurther stated that as per the first respondent the total votes polledwere 1764. In the first round of counting 292 were polled in favourof the petitioner and 236 votes were polled in favour of the 4[th]respondent. In the second round the petitioner secured 258 votesand the 4[th] respondent 288. In the third round the petitioner got275 votes and 4[th] respondent got 297 votes. After clubbing thevotes of three rounds petitioner got 825 votes and the 4[th]respondent got 832 votes and 107 votes were invalid. The firstrespondent declared the result and held that the 4[th] respondentelected as sarpanch with a margin of seven votes. It is also furtherstated that immediately after counting though the petitionerrequested the first respondent for recounting of votes, withoutconsidering the request of the petitioner, the first respondentdeclared the 4[th] respondent as elected candidate. The said actionis questioned in the present writ petition.

5. Sri V.V.Prabhakar Rao, learned Standing Counselrepresenting the second respondent, the State ElectionCommission and also R-1 and R-3 would submit that in such acase the remedy for the writ petitioner is to approach the electiontribunal. No counter-affidavit as such is forthcoming. However, 4[th]

respondent filed counter-affidavit. It is stated in paragraph 2 of thecounter-affidavit that it is true that second respondent had issuedelection notification for election to the office of Sarpanch,Anantapur Rural Gram Panchayat on 18.11.2006. All other factsrelating to counting of votes and declaration of result thoughadmitted, specific stand was taken that there are no irregularities. Substantially, those allegations were denied. It is stated that thefirst respondent had taken up counting of votes in the presence ofthe writ petitioner, 4[th] respondent and others and specific stand istaken that it is false to allege that the votes polled in favour of thewrit petitioner were put in the tray earmarked to 4[th] respondent. But it is stated that it is true that 4[th] respondent got majority of 7votes over the writ petitioner and hence first respondent hadrightly declared the 4[th] respondent that he had won the election tothe office of sarpanch of Anantapur Rural Gram Panchayat andForm-29 was issued after obtaining signature from both thecontesting candidates on Form-28.

6. In paragraph 4 it is stated that it is true that the votes polledwere 1764. In the first round of counting 292 votes were polled infavour of the writ petitioner and 256 votes were polled in favour ofthe 4[th] respondent. But it is falsely alleged in the writ petition thatin the first round only 236 votes were polled in favour of the 4[th]respondent. In the second round the writ petitioner had secured258 votes and the 4[th] respondent had secured 288 votes. There isno dispute with regard to counting of second round of votes. In thethird round the writ petitioner had secured 275 votes, whereas the 4[th] respondent had secured 297 votes and the same was also notdisputed by anybody. Hence, by clubbing all the three roundsvotes the first respondent had declared that the 4[th] respondentsecured 832 votes and whereas the writ petitioner had secured825 votes and as such 4[th] respondent had got a majority of 7votes over the writ petitioner. Several other factual details alsohad been narrated in paragraphs 4, 5 and 6 of the counter-affidavit.

7. The representation dated 01.12.2006 of the writ petitionerrequesting for recounting also had been referred to and it is statedthat only with a view to create some cause of action thisrepresentation had been thought of and no such representation infavour of the petitioner was made to the first respondent.

8. In Form-26 certain defects in number of votes shown hadbeen specifically pointed out and elaborate submissions weremade in this regard. Primafacie on calculation of these number ofvotes, there appears to be some discrepancy, but however, thiscourt is not inclined to express any further opinion since these areall factual controversies which may have to be gone into by anappropriate election tribunal. However, it is brought to the noticeof this Court that already the writ petitioner had approached theelection tribunal by filing E.O.P.No.10 of 2006 on the file of JuniorCivil Judge, Anantapur. It is needless to say that such electionO.Ps. are to be disposed of at an early date. In view of the same,the learned Election Tribunal-cum-Junior Civil Judge, Anantapur,to make an endeavour to dispose of the aforesaid election petitionat an early date, preferably, within a period of four months from the date of receipt of a copy of this order.

9. The writ petition is disposed of accordingly. No order as tocosts.

Date: 22[nd] December 2006.

__________________P.S.NARAYANA, J.

BSB