WA/2534/2005 of Sayam Suresh, S/o. Madhav, Vs Tangda Sudhakar, S/o. Donu, on 30 December 2005

Conclusion

::JUDGMENT::

Counsel for the appellant: Sri M. Rajender ReddyCounsel for respondent No.1: Sri V. Ravikiran RaoCounsel for respondents 2, 3 and 4: None appeared December 30, 2005

Per G.S. Singhvi, CJ

This appeal is directed against order dated 23-11-2005 vide which the learnedSingle Judge dismissed the writ petition filed by the appellant for quashingorder dated 25-1-2002 passed by Election Tribunal-cum-Junior Civil Judge,Sirpur (hereinafter described as ‘the Tribunal’) in O.P.No.2 of 2001.

The appellant, respondent No.1 and Sri Naitham Babu Rao contested electionheld on 14-8-2001 for the post of Sarpanch of Thatpally Gram Panchayat,Koutala Mandal, Adilabad District. The appellant was declared elected havingsecured 416 valid votes as against 409 secured by respondent No.1.

Soon after declaration of the result of election, respondent No.1 filed a petitionunder Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short‘the Act’) read with Andhra Pradesh Panchayat Raj (Election Tribunals inrespect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules,1995 (for short ‘the Rules’). He pleaded that counting of votes had been done inviolation of the statutory rules, the votes polled in his favour were wronglycounted as the votes of non-petitioner No.1 (appellant herein) and that his voteshad wrongly been rejected. He also made allegations of mala fides against theElection Officer by asserting that the latter had acted under the influence ofnon-petitioner No.1. In his reply, non-petitioner No.1 (appellant herein) pleadedthat the counting of votes had been done strictly in accordance with therelevant rules and he was declared elected on having secured highest numberof valid votes.

During the pendency of the petition, both parties filed joint memo dated 27-11-2001 expressing their no objection for recounting of votes. The relevant portionof that memo reads as under:

“ The petitioner and the respondents have no objection for recounting ofvotes in the above petition.votes in the above petition.

Hence this joint memo.”

After considering the aforesaid memo and pleadings of the parties, the Tribunalpassed order dated 6-12-2001 for scrutiny and recounting of votes.Accordingly, direction was given to the Election Officer to send the relevantrecords. The votes were scrutinized and recounted in the presence of theadvocates of the parties on 25-1-2002. At that stage, counsel appearing for the appellant and the learned Assistant Government Pleader conceded that voteNos.227886, 227786 and 227887 were wrongly counted in favour of the formerand the same were liable to be rejected. Similar statement was made by thecounsel for the present respondent No.1 for rejection of vote No.227399 whichhad been earlier counted in his client’s favour. Counsel appearing for thepresent appellant also conceded that votes bearing No.227835, 227818,227815, 227811, 227842 and 227812 which had been earlier counted in favourof his clients were liable to be counted in favour of the election petitioner. TheTribunal also found that the major portion of the seal on vote No.227810 was inthe column of election symbol of the election petitioner.

On the basis of the scrutiny undertaken by it and the statements madeby counsel for the parties and the Assistant Government Pleader, the Tribunalconcluded that the total number of valid votes polled in favour of the electionpetitioner comes to 415 as against 406 valid votes polled in favour of the non-petitioner No.1 and, therefore, the former was liable to be declared as elected.Accordingly, the Tribunal allowed the petition and declared the electionpetitioner (respondent No.1 herein) as elected to the post of Sarpanch.

The appellant challenged the order of the Tribunal in Writ Petition No.2402 of2002 mainly on the ground that the reasons assigned by it for ordering recountof votes is contrary to the law laid down by the Supreme Court in Vadivelu v.Sundaram and others and Mahender Pratap v. Krishan Pal and others.Respondent No.1 controverted the appellant’s plea and averred that result ofthe recount may not be interfered because counsel appearing for the partiesbefore the Tribunal had agreed for recounting of votes.

The learned Single Judge took notice of the joint memo dated 27-11-2001 filed by the counsel for the parties before the Tribunal agreeing forrecounting of votes, referred to the judgment of the Supreme Court inT.A.Ahammed Kabeer v. A.A. Azeez and others and held that once theparties had agreed for recounting of votes, the result cannot be questionedunder Article 226 of the Constitution.

We have heard learned counsel for the parties and perused the record.

On 22-12-2005 the Court, after hearing counsel for the appellant summoned the record of O.P.No.2 of 2001 decided by the Tribunal. The recordreceived from the Tribunal has been placed before the Court. The sameincludes two sealed envelops containing the ballot papers. The sealed envelopswere opened in the presence of the learned counsel for the parties and theywere given opportunity to inspect the same. After inspecting the ballot papers,learned counsel for the appellant very fairly stated that scrutiny made by theTribunal is substantially correct except in respect of one vote which had beenpolled in favour of the appellant, but was wrongly rejected by the Tribunal.Learned counsel for the appellant also conceded that even if one vote iscounted in favour of the appellant, respondent No.1 will be deemed to havesecured at least 8 votes more than his client.

In the backdrop of the above, it is to be seen whether the Tribunalcommitted an error by ordering recount of the votes. In this context it isnecessary to reiterate that during the pendency of the petition filed byrespondent No.1, counsel appearing for both the contesting parties had filedjoint memo expressing their client’s no objection to the recounting of votes.This must have influenced the Tribunal in passing order dated 6-12-2001 for recounting of votes. In the writ petition filed by him, the appellantneither pleaded nor any evidence was produced before this Court to show thatthe counsel appearing on his behalf before the Tribunal did not have theauthority to file joint memo dated 27-11-2001 or that the contents of the memowere incorrect. Even in the appeal, no such plea has been taken. Therefore, itis not possible to find any legal infirmity in the direction given by the Tribunalfor recounting of votes. In our view, by having given an unequivocal noobjection for recounting of votes, the appellant will be deemed to haveacquiesced in the process of recounting of votes and it is not open for him toturn around and question the order passed by the Tribunal for recounting ofvotes.

In so far as the result of recounting is concerned, learned counsel for theappellant did not put forward any tangible argument to assail the findingrecorded by the Tribunal. Rather, he fairly conceded that even if one wronglyrejected vote is counted in favour of his client, respondent No.1 will be deemedto have secured at least 8 votes more than the appellant.

We appreciate the fair stand taken by the counsel for the appellant and hold

that the learned Single Judge did not commit any error by refusing to entertainhis client’s prayer for setting aside the order of the Tribunal, more so becausethe conclusion recorded by the learned Single Judge is supported by thejudgment of the Supreme Court in T.A. Ahammed Kabeer v. A.A. Azeez andothers[3].

In the result, the appeal is dismissed. However, the parties are left to beartheir own costs.

G.S. SINGHVI, CJ

December 30, 2005

R. SUBHASH REDDY, J

svs