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Judgment
D. Reddeppa Reddi, J
These two revision petitions are directed against the common order dated 1-9-1997 of the Election Tribunal (District Munsif) Atmakur, Mahaboobnagar District, constituted under the A.P. Panchayat Raj (Election Tribunals in respect of Grampanchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short ''the Election Tribunals Rules) made in OP Nos.7 and 4 of 1995 setting aside the election of one Sri Y. Venkata Reddy as Sarpanch of Kalwal Grampanchayat of Narva Mandal and declaring one Sri V. Pratap Reddy as duly elected Sarpanch of the said Grampanchayat.
The facts that led to the filing of these petitions as set out in the pleadings and borne out by evidence on record may be stated thus : Election to the office of Sarpanch of Kalwal Grampanchayat was held on 3-7-1995. There was contest for the same between Sri Y. Venkata Reddy (hereinafter referred to as "the petitioner'''') and Sri V. Pratap Reddy (hereinafter referred to as "the contesting respondent"). Sri Venkata Swamy, Teacher, M.P. Narva Mandal was the Election Officer. Polling was held from 7a.m. to 1 p.m. On the same day counting was taken up from 2p.m. onwards and concluded by 4p.m. During the counting, it was found that 948 votes were polled. Of them, Sri Venkata Reddy secured 428 votes and Sri Prathap Reddy 431 votes. 89 votes were declared as invalid votes. The Election Officer prepared Form Nos.16 and 17. The petitioner submitted a petition for recounting of votes. The Election Officer recounted the votes, but found no change. However, he could not announce the results in view of the orders of this Court staying the declaration of election results. Meanwhile, the State Election Commissioner appointed under Article 243(k) of the Constitution of India issued a notification No.531/SEC/B/95-3 dated 26-7-1995 setting out grounds for recount. One of the grounds stipulates that recounting should be done when the margin of victory was less than 1% of the total polled votes. Sometime thereafter orders staying the results were vacated and the State Election Commissioner was permitted to declare the results of all elections to the offices of Sarpanch etc., Thereupon, as per the guidelines issued by the State Election Commissioner in the notification dated 26-7-1995 one Sri D. Basava Raj, Mandal Educational Officer, Narva Mandal, conducted recounting. Li the course of recounting, it was found that 949 votes were polled. The petitioner secured 430 votes and the contesting respondent 426 votes. 93 votes were rejected as invalid votes. Thereupon, the petitioners was declared elected as Sarpanch of Kalwal Grampanchayat. Questioning the said election, OP Nos.7/95 and 4/95 were filed, the former by the contesting respondent who contested the election and the latter by Sri K. Laxman Rao, a voter of Kalwal Grampanchayat. These petitions were resisted by the petitioner by filing a detailed counter separately in each petition. There was an order of this Court in CRP No.75/97 to club both the petitions and dispose of them together. Accordingly, they were clubbed. Evidence was recorded in OP No.7/95 and the same was treated as evidence in OP No.4/95. The petitioner in OP No.7/95 examined himself as PW1. One Sri Maheswara Reddy was examined as PW2. Exs.A1 and A2 were marked through them. The petitioner, who was elected during recount was examined as RW1. Also RWs.2 to 6 were examined and Exs.B1 and B2 were marked on behalf of RW1. The Election Tribunal, though failed to frame issues with reference to the pleadings, formulated the following point for consideration:
Whether the recounting of votes conducted on 21-10-1995 was in accordance with the A.P. Panchayat Raj (Conduct of Elections) Rules, 1994 (for short the Election Rules)?
It answered the point in fevour of the contesting respondent mainly on the ground that there was no application by or on behalf of the petitioner for recounting of votes as contemplated under Rule 35 of the Election Rules. It also referred to the decision of a Division Bench of this Court in Smt. Sk. Khasim Bee Vs. The State Election Commissioner and others, declaring the notification dated 26-7-1995 of the State Election Commissioner as illegal and void to sustain its conclusion that the recounting done on 21-10-1995 is not warranted. In consequence, it set-aside the election of the petitioner and declared the contesting respondent, the petitioner in OP No.7/95 as Sarpanch of Kalwal Grampanchayat Hence, these two revision petitions.
Sri L. Narasimha Reddy, learned Counsel for the petitioner raised two principal contentions : First: The Election Tribunal set-aside the petitioner''s election solely on the basis of the decision of a Division Bench of this Court in Khasim Bee''s case (supra) and since said decision was reversed by the Supreme Court by order dated 12-8-1996 in Civil Appeal No..../96 arising out of SLP (C) No.666/96, even by the time the impugned order dated 1-9-97 was passed the notification dated 26-7-95 of the State Election Commissioner holds the field and therefore the election petitions should have been dismissed holding that the recounting done on 21-10-1995 is perfectly valid. Second, the specific prayer in the election petition is for recounting of votes and declare the contesting respondent as duly elected Sarpanch of Kalwal Grampanchayat. But, the Election Tribunal declared the contesting respondent as duly elected Sarpanch without ordering for recount of votes. Thus, the relief granted in the impugned order is far in excess of the relief sought for. Hence, even in case this Court comes to the conclusion that recounting done on 21 -10-1995 is vitiated for any reason there should be a direction to the Election Officer to declare the results only after ordering for recount of votes afresh. Sri D. Sudershan Reddy, learned Counsel for the contesting respondent, counters the first submission on three counts : First, the Election Tribunal rested its order on the basis of the evidence adduced by both the parties, but incidentally referred to the decision of a Division Bench of this Court in Khasim Bee''s case (supra) only to lend assurance to its conclusion that the recounting done on 21-10-1995 pursuant to the notification dated 26-7-1995 of the State Election Commissioner is not warranted. Second, the specific pleading and evidence adduced on behalf of the contesting respondent and Sri K. Laxman Rao, the petitioners in OP Nos.7 and 4 of 1995 respectively that the petitioner, who secured 428 votes, submitted a petition for recounting of votes and the Election Officer recounted the votes as sought for by him, but found no change, is not denied by the petitioner. Thus, the direction given by the State Election Commissioner in the notification dated 26-7-1995 that recounting should be done when the margin of victory was less than 1% of the total votes polled was already complied with by the Election Officer. Therefore, there should not have been a further recounting on 21-10-1995. Third, it has been found by the Election Tribunal on the basis of evidence that no application was filed by the petitioner for recounting of votes as contemplated under Rule 35 of the Election Rules. The question of recounting of votes even as per the grounds set out in the notification dated 26-7-1995 of the State Election Commissioner would arise only when there is an application for recounting as contemplated under Rule 35 of the Election Rules. In the absence of any such application, the recounting done on 21-10-1995 is totally unwarranted. Regarding the second submission, it is his plea that it is for the Court to grant appropriate relief basing on the evidence and also the relevant statutory provisions. The recounting done on 21-10-1995 is contrary to the relevant statutory provisions and also the notification dated 26-7-1995 of the State Election Commissioner and therefore the impugned order declaring the contesting respondent as duly elected Sarpanch on the basis of votes secured by him in the counting done on the date of election ie., 3-7-1995 and as entered in Form No.16marked as Ex.A1 is perfectly valid.
In view of these rival contentions, the points for our consideration may be formulated as under:
Whether the Election Tribunal rested its decision solely on the basis of the decision of a Division Bench of this Court in Khasim Bee ''s case (supra) ?
Whether the notification dated 26-7-95 of the State Election Commissioner is valid and/or relevant for the purpose of the present cases ?
Whether there were justifiable grounds for recounting of votes on 21-10-1995 pursuant to the notification dated 26-7-1995 of the State Election Commissioner ?
Whether there are any justifiable grounds to interfere with the impugned order ?
Point No.1 : In order to appreciate this point, we have carefully gone through the entire impugned order. It is clear therefrom that the Election Tribunal on consideration of the evidence of RWs. 1 to 4 and the provisions of Rule 35 of the Election Rules came to the conclusion that the recounting done on 21-10-1995 was not in accordance with Rule 35. True, incidentally, the Election Tribunal also referred to the decision in Khasim Bee''s case (supra). But, that by itself, in our considered view, is not sufficient to hold that the Election Tribunal rested its conclusion solely on the basis of the decision in Khasim Bee''s case. The point is accordingly answered against the petitioner and in favour of the contesting respondent.
Point No. 2 : It is not pleaded in either of the petitions that the notification dated 26-7-95 of the State Election Commissioner is invalid and inoperative. That apart, the State Election Commissioner has not been impleaded as a respondent in either of the petitions. No steps have been taken even before this Court to bring on record the State Election Commissioner as a party to the present proceedings. In this view of the matter, we consider it inexpedient to decide the validity of the said notification. Also, we are of the view that the said notification is not very much relevant for our purpose. Moreover, we have to proceed on the assumption that it is valid in view of the order dated 12-8-1996 of the Supreme Court in Civil Appeal No.../96 arising out of SLP (C) No.666/96. This point is accordingly answered.
Point No. 3 : It is not disputed before us that the recounting was conducted by RW4 on 21-10-95 pursuant to the following instruction contained in the notification dated 26-7-1995 of the State Election Commissioner :
"Where recounting was not done even though the margin of victory was less than 1% of the total polled votes."
It may be stated here that RW3 was the Election Officer and RW4 was the second stage Election Officer for the purpose of recounting of votes on 21 -10-1995 in the office of Mandal Praja Parishad, Atmakur. RW3, the Election Officer, did not state in his evidence that the petitioner made any application for recounting of votes as contemplated under Rule 35(1) of the Election Rules, which reads as under :
"35 Recount of votes :-(1) After such announcement has been made under sub-rule (7) of Rule 34, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Election Officer for recounting of the votes either wholly or in part stating the grounds on which, he demands such recount."
It is not there even in the evidence of RW4 that there was an application for recounting of votes as contemplated under Rule 35. It is also not the case of the petitioner deposing as RW1 that he made any application before the Election Officer-RW3, for recounting of votes as contemplated under Rule 35. On the other hand, his evidence is that he secured one vote more than the votes secured by the contesting respondent and RW3 succumbed to the pressure of PW2, the election agent of PW1 and counted 3 votes in favour of the contesting respondent, PW1. But this version of his is belied by the evidence of RW3, the Election Officer. He admitted in the course of cross-examination that there was no disturbance whatsoever at the time of counting and nobody raised any objection as to the counting of votes done by him. Yet, the learned Counsel for the petitioner tries to justify the recounting done by RW4 on 21-10-1995 on the ground that it was in consonance with the instructions contained in the notification dated 26-7-1995 of the State Election Commissioner. He maintains that as per the said notification recounting should be held whenever the margin of votes \\vas less than 1 % of the total votes polled irrespective of the fact whether an application was filed as contemplated under Rule 35 or not. Therefore, it has to be seen whether the notification dated 26-7-1995 of the State Election Commissioner contemplated or provided for recounting of votes without there being any application as contemplated under 35 and/or where recounting was already done either on the basis of the application filed under Rule 35 or as per the oral request made by the aggrieved candidate or his election agent. In this context, it would be useful to refer to the reasons and circumstances that led to the issuance of notification dated 26-7-1995 by the State Election Commissioner. They read as under:
"The State Election Commission has received numerous petitions seeking recount of the votes polled during recent elections to the Gram Panchayat. Several writ petitions also have been filed in the High Court seeking directions to the State Election Commission to order recount. The High Court through our Counsel desired to know what action the State Election Commission is intending to take on various representations before it for recounting of the votes polled in Gram Panchayats.
The State Election Commission has initially taken the view that once result sheets in Form No. 17 have been signed no request for recounting shall be entertained. However, a sample verification of the complaints received has shown that in many cases the Election Officers appear to have violated instructions of the Election Commission and signed result sheets in Form No. 17 without giving an opportunity for recount."
It is clear from the above that recounting shall be done only in cases where there was an application or request for recount and the same was rejected even though the margin of victory was less than 1% of the total votes polled. At any rate, we are unable to interpret the notification in question in the manner it is sought to be interpreted by the learned Counsel for the petitioner.
The powers of the Election Commission in the matter of superintendence, direction and control of elections have been succinctly set out by the Supreme Court in A.C. Jose Vs. Sivan Pillai and Others, in the following terms :
"(a)when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324,
(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given."
In view of the above, there can be no direction by the State Election Commissioner to the Election Officers or any other concerned authorities to act contrary to Rule 35 of the Election Rules. Sub-rule (1) of Rule 35 mandates that there shall be an application in writing to the Election Officer for recounting of votes either wholly or in part stating the grounds for such recount. It follows, recounting cannot be resorted to unless there is an application for the same as contemplated under sub-rule (1) of Rule 35. In the case on hand, the plea of the contesting respondent and the evidence adduced on his behalf that there was recounting of votes on the date of election itself on the application/request made by and on behalf of the petitioner stands unrebutted. Also, it is not the case of the petitioner that he made an application for recounting of votes as contemplated under Rule 35(1) of the Election Rules. Further, as rightly held by the Election Tribunal, there is no iota of evidence to establish that the petitioner made an application for recounting of votes. In such view of the matter, we arc 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 State Election Commissioner. This point is accordingly answered against the petitioner and in favour of the contesting respondent.
Point No. 4 : True, as urged by the learned Counsel for the petitioner, the prayer in OP No.7/95 filed by the contesting respondent reads as under:
"It is therefore prayed that the Hon''ble Court may be pleased to allow the election petition setting aside the election of 1st respondent as Sarpanch of Kalwal Grampanchayat and declare this petitioner as elected Sarpanch of Grampanchayat Kalwal by recounting votes in the election held on 3-7-98 for the post of Sarpanch Grampanchayat Kalwal."
The prayer in OP No.4/95 filed by a voter of Kalwal Grampanchayat is also to the same effect. The contesting respondent deposing as PW1 also prayed for recounting of votes and to declare him elected as Sarpanch of Kalwal Gram Panchayat. But, the following plea in para 1 of the election petition :
"It is submitted that 1st respondent herein submitted a petition for recount after the announcement of particulars from the result sheet filled up in Form No.17. The 2nd respondent counted all the votes again at the instance of 1st respondent, but there was no change in the number of votes got by the petitioner and the first respondent. The 2nd respondent also obtained the signatures of petitioners and as well as 1st respondent in the result sheet"
is not denied in the counter filed by the petitioner. To be more specific, the counter filed by the petitioner in this regard reads as under:
"In reply to para No.1 of the petition are admitted by the respondent. Except the number of valid votes polled in favour of the respondent."
On this aspect, the evidence of the contesting respondent, who has been examined as PW1, is as follows:
'' ''At the time of counting of votes myself, Respondent No.1 and our agents were present there. The total votes polled in the election were of 948 and I got 431 and the Respondent No. 1 has got 428 and 89 were declared as invalid. Then the election officer prepared Form No.16 and 17 entered the results of counting. Thereafter the Respondent No.1 requested the Election Officer to recount the votes since the difference is only of 3 votes. Accordingly the votes were again counted but there was no any change to previous counting. The Election Officer obtained the signatures of election agents on Form No.16 and 17. As per the counting I got majority votes than Respondent No.1. The results were withheld as there was stay not to declare the results."
In the cross-examination, it is not even suggested to him that there was no request by the petitioner to the Election Officer for recounting votes and the votes were not recounted by the Election Officer. It is significant to note that it is not even elicited from RW3, who has been examined on behalf of the petitioner himself that he made an application for recounting, but he failed to do so. It is also not elicited from RW4, who has also been examined on behalf of the petitioner, that there was an application of the petitioner for recounting of votes as contemplated under Rule 35 of the Election Rules. RW3 is specific in his evidence that after counting of votes he prepared the result sheet under Ex.A1, Form No.16.
In the light of the pleadings and the evidence referred to supra and our conclusion on point No.3 that there were no justifiable grounds for recounting of votes on 21-10-1995, the Election Officer has no option but to declare the results on the basis of votes secured by the candidates as entered in Ex.A1, Form No. 16, Ex.A1, Form No.16, reads as under:
Form No-16 Part II Result of Counting
S.No.
Name of the candidate
Number of valid votes cast
1.
Sri Prathap Reddy (Tamarind Tree)
431 Sd. xxx
2.
Venkat Reddy (Tractor)
428 Sd. xxx
II.
Rejected Ballot Papers
89
III.
Total
948
Whether the total number of ballot papers shown against item No. Ill above tallies with the total shown against item No.5 of Part I or any discrepancy noticed between these two totals.
Place : Kalwal Signature of the counting
Date: Supervisor.
Sd. x x x x Signature of the Election Officer."
We notice that Ex.A1 was signed by the petitioner as well as the contesting respondent. Having regard to all these factors, we do not find any justifiable ground to interfere with the impugned order. This point is, accordingly, answered.
In the light of the above discussion and for the reasons recorded by us on points 1 to 4, we have no option but to hold that these revision petitions are devoid of substance. They are, accordingly, dismissed. However, we make no order as to costs.