Full Judgment
P.S. Narayana, J.
1. Heard Sri Subrahmanyam Reddy, learned Senior Counsel representing the petitioner and the learned Assistant Government Pleader for Panchayat Raj.
2. The writ petitioner-P. Jagadamba filed the present writ petition praying for the issuance of writ of mandamus declaring the Proceedings No. 1548/SEC-B2/2001-, dated 20-11-2001 as illegal, arbitrary and contrary to the provisions of A.P. Panchayat Raj Act and the Rules made thereunder and consequently direct the respondents to declare the result of the election held on 17-8-2001 for the Office of Ward Members and Sarpanch of Gorrekal Gram Panchayat on the basis of the result sheet prepared by the 4th respondent and pass such other suitable orders.
3. The respondent No. 5 was impleaded as party in W.P.M.P. No. 32832 of 2001 by order dated 8-12-2001.
4. The facts in brief are as hereunder:
The elections to Goprekal Gram Panchayat for the posts of Ward Members and Sarpanch were held on 17-8-2001. Three candidates including the petitioner contested for the post of Sarpanch and there was straight contest for the post of 10 Ward Members. The polling was held peacefully from 7.00 am upto 1.00 p.m., on 17-8-2001 and the counting started at 2.00 p.m. The counting was completed by 4.00 p.m. It is also stated that the 4th respondent declared the results of the election for the post of Sarpanch and Ward Members and thereafter he was preparing the Declaration Forms. It is also the case of the writ petitioner that at that juncture the proposed party who came on record as the respondent No. 5, Sri V. Hanumanthappa one of the contestant for the post of Sarpanch, who polled 34 votes less than the writ petitioner entered the Counting Hall along with his supporters and damaged the ballot papers and beat the election staff by scolding them stating that they were responsible for the defeat of the candidate. The 4th respondent managed to come out and went to Alladurg Police Station and gave a report about the incident, which was registered as Crime No. 39 of 2001 under Sections 147, 148, 353, 332, 307 read with Section 149 IPC. The 4th respondent also submitted a report on 17-8-2001 itself to the Mandal Election Officer, Alladurg narrating the incident and also the votes secured by the candidates contested for the post of Sarpanch as well as the Ward Members. It is mentioned in the said report that the writ petitioner got 886 votes and her nearest rival V. Hanumanthappa-respondent No. 5 secured 852 votes and the third candidate got 11 votes and 38 votes were rejected as invalid. The first respondent in the writ petition on the basis of the report of the second respondent requested the second respondent to get the matter inquired into in detail and submit a report, as the material available was not adequate for taking a decision in the matter. The second respondent appointed the third respondent to enquire into the matter in detail by examining the candidates and others. The second respondent after obtaining the report from the third respondent forwarded the same to the first respondent and the first respondent without properly appreciating various factors and without considering the statements recorded by the various persons by the Enquiry Officer, set aside the election held on 17-8-2001 and ordered for a fresh poll on 4-12-2001 which is illegal and arbitrary. It is also the case of the writ petitioner that the 4th respondent herein entered the results of the counting on a paper and announced the results, except issuing Declaration Forms. On the basis of the entries made by him in the paper he gave all the details pertaining to the votes secured by each candidate including the number of invalid votes in the report submitted to the Mandal Election Officer on 17-8-2001 itself. The said report is available with the officers and on the basis of the Declaration Forms can be issued. The reasoning of the first respondent that the rough result sheet is prepared by the 4th respondent nearly after two months from his memory and it is not desirable to depend upon the same and there is no evidence to support the rough data. These reasons are absolutely without any basis. There is plenty of material available with the authorities with regard to the genuineness of the rough result sheet, which contains the details of all the votes. Hence, the order of the 1st respondent dated 20-11-2001 is illegal, arbitrary and contrary to the provisions of the A.P. Panchayat Raj Act and the Rules made thereunder. It is also stated that the writ petitioner came to know about the impugned proceedings of the 1st respondent dated 20-11-2001 only on 26-11-2001 and immediately she filed an application along with his affidavit before the 2nd respondent for supplying of the certified copies of the various references made in the impugned order, for the purpose of taking necessary action and though applied for the same on 27-11-2001, they were not supplied even till the date of filing of the writ petition. In such circumstances, it is stated that the writ petition is left with no other option except to approach this Court praying for appropriate relief already referred to supra.
5. The District Collector, Medak filed counter-affidavit substantially denying the allegations. Likewise, the respondent No. 4 also filed counter-affidavit. The respondent No. 5 who was impleaded as a party filed an affidavit in detail narrating several facts.
6. Contentions of Sri Subramanayam Reddy : Sri Subrahmanyam Reddy, learned Senior Counsel representing the writ petitioner would submit that in such a case the first respondent taking a decision to order repoll cannot be sustained for the reason that there is ample material available with the concerned officers and hence, instead of declaring the result ordering repoll is bad. The learned Senior Counsel also had taken this Court through the affidavit filed in support of the writ petition, the respective counter-affidavits and also the order impugned and would submit that even in the light of the language of the relevant provisions of Act and Rules governing the field the impugned order cannot be sustained. The learned Senior Counsel in all fairness would submit that no doubt the elections relating to the Grampanchayats in question are going to be held within a short time. However, inasmuch as the order impugned is totally an unsustainable order, the matter may be decided on merits by this Court. The learned Senior Counsel also relied on certain decisions to substantiate his submissions.
7. Contentions of Assistant Government Pleader : On the contrary, the learned Assistant Government Pleader for Panchayat Raj would maintain that the present rules governing field are G.O. Ms. No. 142 dated 3-5-2001. The learned Counsel also would contend that even if the prior rules governing the field are taken into consideration the remedy in such a case is only by way of election petition and the writ petition cannot be maintained. Even otherwise, the learned Counsel would submit that in the light of the convincing reasons recorded inasmuch as the State Election Commission has plenary powers, it cannot be said that such exercise of power ordering the repoll can be said to be without jurisdiction. In any event the writ petition is liable to be dismissed.
8. Contentions of Sri Sridhar Reddy : Sri Sridhar Reddy, learned Counsel appearing for the respondent No. 5 had also taken this Court through the affidavit filed by the respondent No. 5 and would submit that virtually the writ petition became infructuous, inasmuch as, as per the Election Notification, the elections of the Gram Panchayats in question also are going to be held within a short time.
9. Heard, the learned Counsel on record and perused the material available on record. At the outset it may be convenient to have a glance at the order impugned in the writ petition dated 20-11-2001 in No. 1548/ SEC-B2/2001-3 and the said order reads as hereunder: