WP/20225/2008 of Sripathi Chandra Babu, Vs Katam Madhusudhana Rao, on 31 December 2010

ORDER:

This writ petition is directed against the order dated14.8.2008 of the Election Tribunal-cum-Principal Junior CivilJudge, Machilipatnam constituted under the A.P.Panchayatraj Election Tribunal in respect of Gram Panchayat, MandalParishads and Zilla Parshad Rules, 1995 passed in O.P.No.5 of2006, whereby and whereunder the election petition filed by thepetitioner ended in dismissal.

2. Brief facts, giving raise to filing of this writ petition by theunsuccessful petitioner in Election O.P.No.5 of 2006 are:- An election to Pothepally Gram Panchayat of BandarMandal of Krishna District was conducted on 6.8.2006. Thepetitioner and respondents 1 to 6 contested for the post ofSarpanch of Potehpally Gram Panchayat. The 7[th] respondent isthe Returning Officer. Respondents 8 and 9 are the DistrictElection authorities. The 1[st] respondent won the election havingsecured maximum number of votes i.e., 503. The petitioner stoodas nearest rival having secured 502 votes. Aggrieved by the election of the 1[st] respondent, the petitioner filed petition underSection 233 of the A.P.Panchayat Act, 1994 read with Section80(1) and 81 of the Representation of Peoples Act, 1951 to set aside the election of the 1[st] respondent. The grounds urged bythe petitioner are that Firstly; the election of the 1[st] respondent iscontrary to the provisions of the A.P.panchayat Act, 1994,secondly; out of 1390 votes polled, 64 ballot papers were keptaside stating that those ballot papers’ validity will be decidedafter completion of the counting. Thirdly; the Returning Officerrefused to entertain his request for recounting of votes andfourthly; that the Returning Officer was influenced by the sittingM.L.A of Machilipatnam.

3. The 1[st] respondent and 7[th] respondent filed separatecounters. Respondents 8 and 9 filed memo adopting the counterof respondent No.7. Respondents 2 to 4 remained ex parte.

4. The counter of the 1[st] respondent, in brief, is:- The total number of votes polled is 1390 and out of them 64were declared as invalid. Election to the Gram Panchayat hasbeen held on 6.8.2006 as per the statutory instructions issued bythe State Election Commission . During counting, the ReturningOfficer and all the contesting candidates followed the process of counting very carefully. After completion of counting , theReturning Officer allowed fifteen minutes time to the contestingcandidates to raise objection in respect of counting. None of thecontesting candidates including the petitioner raised any objection in writing as to counting and scrutiny of the ballotpapers. The Returning Officer endorsed on each ballot paper,which has been rejected. Later on, the Returning Officer singedthe Result sheet duly declaring this respondent’s election as Sarpanch. The petitioner did not raise any objection at the time of scrutiny of votes, counting process, during the pass time offifteen minutes after counting and declaration of result, andsigning Form XXVI by the Returning Officer. The allegation thatthe Returning Officer declared this respondent as winningcandidate for the post of Sarpanch at the instance of the sittingM.L.A is false.

5. The respondents 5 and 6 having raised certain grounds inthe counter with regard to the process of declaring the 1[st]respondent as winning candidate for the post of Sarpanch soughtfor dismissal of the petition.

6. The counter of the 7[th] respondent is that he meticulously followed the procedure in the process of counting the ballot papers and the 1[st] respondent has been declared as winningcandidate for the post of Sarpanch of PothepallyGrampanchayat as he secured highest number of votes among all the contesting candidates. 64 ballot papers were declared asinvalid in the presence of all the contesting candidates includingthe petitioner and they did not raise any objection for hisdeclaring the 64 votes as invalid.

7. Before the Election Tribunal, the petitioner examinedhimself as Pw.1 and marked six documents. On behalf of therespondents, three witnesses were examined as Rws.1 to 3 andone document was marked as Ex.B-1. The tribunal formulatedthe following point for consideration.

Whether the petitioner established grounds to set-aside the declaration of result in favour of firstrespondent and declare the petitioner herein as winning candidate and that this application is liableto be allowed or not ?

8. The tribunal, on considering the evidence brought on recordand on hearing the counsel appearing for the parties, came to theconclusion that the petitioner failed to make out any valid ground to set aside the election of the 1[st] respondent as Sarpanch of Pothepalli Gram Panchayat and thereby, proceeded to dismiss the O.P., by order dated 14.8.2008. The said order is assailed inthis writ petition.

9. Heard learned counsel appearing for the petitioner andlearned counsel appearing for the 1[st] respondent.

10. Learned counsel appearing for the petitioner submits thatthe Returning Officer failed to consider his request for recountingand therefore, declaration of result without recounting is invalid. Afurther submission has been made that the Returning Officer wasinfluenced by the sitting M.L.A in declaring the 1[st] respondent aswinning candidate.

11. Learned counsel appearing for the 1[st] respondentsubmits that the petitioner failed to make written representation for recounting of the votes and he having failed to do so, cannot bepermitted to contend that the Returning Officer has not consideredhis oral request for recounting. In support of his submission, reliance has been placed on the decision of this Court in Y.Venkat Reddy v. The Court of the District Munsif, Atmakur[[1]], whereinit has been held that a request for recounting must be in writingas provided in Rule 35(1) of the Election Rules.

12. Pw.1 is the petitioner. He admits in cross-examination thathe did not make a request to the 7[th] respondent for recountingexcept Ex.A.5. Under sub-rule (1) of Rule 35, a request forrecounting of votes on the date of election itself, must be inwriting. A Division Bench of this Court in the above-referred case considered sub-rule (1) of Rule 3 and observed ashereunder:-

“ In view of the above, there cannot be any direction tothe State Election Commissioner to the Election Officers or an other concerned authorities to act contrary to Rule35 of the Election Rules. Sub-rule (1) of Rule 35 mandates that there shall be an application in writing tothe Election Officer for recounting of votes either wholly or in part stating the grounds for such recount. Itfollows, recounting cannot be resorted to unless there isan application for the same as contemplated under sub-rule (1) of Rule 35. In the case on hand, the plea of thecontesting respondent and the evidence adduced on hisbehalf that there was recounting of votes on the date ofelection itself on the application/request made by andon behalf of the petitioner stands unrebutted. Also, it isnot the case of the petitioner that he made anapplication for recounting of votes as contemplated under Rule 35(1) of the Election Rules. Further, asrightly held by the Election Tribunal, there is no iota of evidence to establish that the petitioner made anapplication for recounting of votes. In such view of thematter, we are fully satisfied that there were absolutely no justifiable grounds for recounting votes on 21-10-95 pursuant to the notification dated 26-7-1995 of the StateElection Commissioner. This point is answeredaccordingly answered against the petitioner and infavour of the contesting respondent”.

13. Pw.1 admits of not making written representation to the 7[th] respondent for recounting. Any oral request subsequent tothe declaration of result cannot be construed as representation interms of sub-rule (1) of rule 35 of the Rules. Though thepetitioner pleaded that copy of Ex.A.5 representation has beensubmitted to the Returning Officer, he failed to place on record any proof to substantiate the same. The tribunal, after consideringthe evidence placed on record came to the conclusion that thepetitioner invented of his making request for recounting to theReturning Officer, so as to make it a ground to challenge the election of the 1[st] respondent. For better appreciation, I may refer the relevant portion of the orderimpugned in the writ petition, which reads as follows:- “ Further, the petitioner in his cross-examination deposed that Ex.A-5-petiton was also addressed toDistrict Collector who is respondent No.9 herein. Hefurther deposed that he put a petition to DistrictCollector and that petition is not Ex.A-5. The petitionerdid not file the copy of the petition , submitted to DistrictCollector. He did not file any acknowledgment to showthat he submitted petition to District Collector. Further,he deposed that one person wrote “(intelugu)” in Ex.A.5 and another personwrote(in telugu). Thepetitioner did not explain as to why two persons wereinvolved to scribe Ex.A.5-petition. Further, the petitioner did not establish that the Returning Officer refused toreceive Ex.A-5 petition. Since it was mentioned inEx.A.5 that the copy of Ex.A.5-petition was given toReturning Officer and acknowledgment was taken fromhim, the contention of petitioner to the effect that theReturning Officer refused to receive Ex.A-5-petitoncannot be accepted and believed. He invented thesame only to maintain this petition before this ElectionTribunal”.

14. On a reappraisal of the evidence brought on record, I do notsee any valid ground to interfere with the findings recorded by theTribunal as the petitioner failed to substantiate his contention ofmaking a request for recounting soon after the counting is overon 6.8.2006.

15. The next contention of the petitioner is that 64 ballot papershave been kept aside by stating that the validity of the said voteswould be considered later. Though the petitioner has taken sucha plea, he did not choose to say anything while being examined asPw.1. Instead, he categorically states that all the ballot paperswere opened in his presence and also in the presence ofrespondents 1 to 6. He admits in cross-examination that theReturning officer verified all the 64 ballot papers and explained thereasons for treating them as invalid. Therefore, the contention ofthe petitioner that counting of 64 ballot papers has been deferred isnot substantiated by any evidence. A feeble contention wasadvanced by the petitioner that one vote polled in his favour hasbeen declared as invalid. But, during enquiry before the tribunal,the petitioner failed to mention the same. He also did not mentionof this fact in Ex.A.5-petition. Therefore, the contention of thepetitioner that one vote went in his favour has not been takeninto consideration is not substantiated by any evidencewhatsoever. The tribunal is justified in rejecting his contention inthis regard.

16. The tribunal considered the evidence brought on record inright perspective and found that the petitioner failed to make out any valid grounds to set aside the election of the 1[st] respondent. There is no error in appreciation of the evidence brought onrecord by the Election Tribunal. The findings recorded by thetribunal are based on sound reasons and they do not warrantinterference of this Court in exercise of powers under Article 226of the Constitution of India.

17. Accordingly, the Writ Petition is dismissed. No costs.

_____________________

B.SESHASAYANA REDDY, J

Dt.31-12-2010RAR

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Writ Petition No.20225 of 2008

[1]1998(4) ALD 564 (D.B)

(Dated : 31-12-2010)