Judgment:
ORDER
Syed Shah Mohammed Quadri, J.
1. These two writ petitions arise under the same circumstances and raise common questions of law, therefore they are heard together and are being disposed of by a common Judgment.
2. To appreciate the questions involved in these cases we shall refer to the facts stated in W.P.No. 24086 of 1995.
3. Consequent upon the declaration of the Government to hold elections for the Gram Panchayats in the State, elections to the post of Sarpanch of Mittanandhimalla Gram Panchayat were held on 3-7-1995. The petitioner and the fourth respondent contested for the said post Counting of the votes was done on the same day, at about 4.30p.m. by the Election Officer, the first respondent. The result of the counting was made known to the parties on making entries in Form-17 which shows that the petitioner secured 329 votes; and the fourth respondent secured 328 votes; 24 votes were found to be invalid and were rejected. A batch of Writ Petitions was pending in this Court wherein declaration of results of elections to the Gram Panchayats, was stayed by a Division Bench of this Court. However, after disposal of the batch of Writ Petitions appeals were filed in the Supreme Court. The Supreme Court was pleased to direct announcement of results of all the elections to the Gram Panchayats in the State. It appears, the fourth respondent had filed an application for recounting of votes. The Election Officer No. II of Mittanandhimalla Gram Panchayat, the second respondent, issued a notice dated 20-10-1995 that the votes would be recounted on 21-10-1995 as per the instructions of the Revenue Divisional Officer, Narayanapet, the third respondent. The petitioner alleges that at the instance of the local M.L.A. belonging to the ruling party the recounting was ordered. The result of the recounting of votes was that the petitioner got 326 votes whereas the fourth respondent got 327 votes. The rejected votes went up from 24 to 28. Accordingly, the results of the election were declared. The petitioners says that the third respondent has no power either under the Andhra Pradesh Panchayat Raj Act (for short 'the Act') or under the Andhra Pradesh Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads) Rules, 1994 (for short 'the Rules') to order recounting, as such the recounting conducted pursuant to the order of the third respondent and the consequent declaration of the result is illegal and without jurisdiction. He, therefore, prayed for a writ of Mandamus declaring the action of the third respondent in issuing the order to recount the votes and the consequential recounting and the declaration of the result as illegal and arbitrary and for a further declaration that the petitioner was duly elected Sarpanch of the above said Gram Panchayat.
4. Notice before admission was ordered by this Court on these Writ Petitions.
5. The first respondent filed a counter affidavit stating that he was appointed as Election Officer, Stage-II (1st phase) for conduct of elections to Mittanandhimalla Gram Panchayat, narva Mandal for the election held on 2-7-1995. he states that the total number of votes polled on that date are 681, out of which the petitioner secured 329 votes, the fourth respondent secured 328 votes and 24 votes were found to be invalid.
6. In the counter-affidavit of the second respondent it is stated that pursuant to the orders of the Supreme Court in SLP Nos. 14407/95 to 14412/95 and 16608/95 to 16617/95 to declare the result of the elections to the Gram Panchayats in the State of Andhra Pradesh, the State Election Commissioner issued notification No. 531/SEC-B/95-9 dated 19-10-1995 directing all the District Election Authorities to forthwith declare the results of the elections to Gram Panchayats through the Stage-II Election Officers. It was also directed that if for any reason the Stage-II Election Officers were not available, the District Election Authority shall appoint any other person as Stage-II Election Officer. The said directions included orders with reference to recounting in cases where applications for recount were received, directly or forwarded by the State Election Commission, if the allegations in the petition come within the parameters of the notification of the State Election Commission dated 25-7-1995. The District Election Authority/District Collector, Mahabubnagar in turn, issued a Circular dated 19-10-1995 to all the Mandal Parishad Development Officers to contract all Stage-I Election Officers of appoint new Stage-II Election Officers wherever necessary to declare results of the Gram Panchayat elections. It is further stated that the Deputy District Election Authority/Revenue Divisional Officer, Narayanapet, intimated the orders of the District Election Authority, Mahabubnagar to the Mandal Parishad Development Officer, Narva. As the first respondent, the First phase Stage II Election Officer, was not available, the deponent was appointed as II Phase Election Officer, Stage-II, on 20-10-1995, by the Mandal Parishad Development Officer, Narva to take up the work of the recounting and declare the results of the election of the Sarpanch of Mittanandhimalla Gram Panchayat. He accordingly issued notices to the concerned parties to attend to recounting in the office of the Mandal Praja Parishad, Atmakur on 29-10-1995. He further stated that he wrongly understood the order of the Mandal Parishad Development Officer, narva and wrote in the notice that the Revenue Divisional Officer, narayanapet, had ordered recounting to be held on 21-10-1995. He added that after recounting the petitioner secured 326 votes whereas the fourth respondent secured 327 votes and 28 votes were found to be invalid. In the circumstances it is prayed that the Writ Petition be dismissed.
7. The third respondent filed a counter-affidavit stating inter alia that the State Election Commission issued orders to the District Authorities to recount the votes in respect of petitions received by them or forwarded by the State Election Commission. The Collector, Mahabubnagar, received a petition from the fourth respondent requesting to order for recounting of the votes of Sarpanch, Gram Panchayat, Mittanandhimalla. The District Collector, issued Circular No. E/1864/95 dated 19-10-1995 to all the Mandal Parishad Development Officers/Assistant Election Authorities in the District to get the recounting done at the headquarters of erstwhile taluks. He further stated that Mittanandhimalla is one of the Gram Panchayats included in the list of Gram Panchayats communicated by the Collector. According to those instructions the recounting was done. He denied that he had instructed for recounting.
8. In as much as there was some apparent inconsistency between the notice issued by the second respondent and the counter-affidavit of the third respondent and as there was confusion with regard to the name of the person who applied for recounting, we permitted the parties to file additional affidavits explaining the inconsistency. In the counter-affidavit it was mentioned that the petition for recounting was filed by Sri Chinna Narsappa, the petitioner, instead of Sri. B. Srinivasulu, the fourth respondent. In fact the application for recounting was received from the fourth respondent in the Writ Petition. On 3-7-1995 he had given a representation to the District Election Authority/District Collector, requesting for recounting. Basing on that representation, the District Election Authority included in the list, the name of the said Gram panchayat, for conducting recounting. Reply affidavit was also filed by the petitioner pointing out the inconsistencies in the recounting and reiterating the facts stated in the writ affidavit.
9. Mr. Sudarshana Reddy, the learned counsel for the petitioner has vehemently contended that based on the impugned notice the petitioner stated that the recounting was directed by the third respondent and now that from the counter-affidavit it is clear that the instructions are issued by the State Election Commissioner in accordance with the circular of the State Election Commission; therefore this Court should declare that the instructions issued by the State Election Commission are wholly without jurisdiction and illegal. The question of validity of the instructions issued by the State Election Commission cannot be allowed to be canvassed in this Writ Petition as those instructions are not questioned in this Writ Petition and the State Election Commission is not impleaded as a party to the Writ Petition. We are therefore, not inclined to go into this contention.
10. It is next contended that the circular of the Election Authority contains instructions to all the Mandal Parishad Development Officers/Assistant Election Authorities in the District to get the recounting done at the head quarters of erstwhile taluks in accordance with the enclosed list, but Rule 35 of the Rules endorses that power in the Election Officer, therefore, the instructions are contrary to Rule 35 and the recounting was also done in violation of the Rules, as such the result of recounting and the consequential declaration that the fourth respondent was elected as Sarpanch has to be declared as illegal and void. In substance, the contention of the petitioner is that the recounting is in violation of Rule 35 of the Rules.
11. The learned counsel for the petitioner relied upon the judgment of the Supreme Court in A.C.Jose v. Sivan Pillai, : [1984]3SCR74 . That case arose under the Representation of People Act. The Election Commission directed casting of votes by mechanical process which was held to be without jurisdiction. One of the principles laid down by the Supreme Court in that case, is that 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 contravention or 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. It was also laid down therein that 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.
12. Reliance is also placed on the judgment of the Madhya Pradesh High Court in State Election Commission v. Ras Bihari Raghuwanshi, : AIR1995MP245 . That case also relates to election to the post of Sarpanch. There three ladies filed nominations for the post of Sarpanch. On the date of scrutiny, nominations of two of them were rejected by the Returning Officer. That left only, one candidate in fray, who was declared elected Sarpanch. It was alleged that the rejection of nominations was because of unauthorised overwriting in the nomination papers in regard to Serial Number and Ward Number in the voters list of the candidate by the Returning Officer himself. A complaint was made to the District Returning Officer regarding illegal rejection of nominations, which fact was referred to the Election Commission. On that material the Election Commission took the decision to countermand the election and to order reelection on the ground that the nomination papers had been tampered with by the Election Officer. Challenging the order of the Election Commission, the Writ Petition was filed in the High Court of Madhya Pradesh seeking the relief to quash the order of the Election Commission. A learned single Judge quashed the order of the Election Commission countermanding the election and ordering fresh election. On appeal from the order of the learned single Judge, a Division Bench of the Madhya Pradesh High Court while dismissing the appeal held the scheme of Article 243(0)(b) read in the light of Rule 33 (6) of the Madhya Pradesh Panchayat Election Rules, 1994, rendered the decision of the Returning Officer accepting or rejecting the nomination papers final which was subject to review only by the Election Tribunal in a duly filed Election Petition. It was pointed out that the Rules did not provide an appeal to the Commission or revision suo motu or otherwise to the Commission against the order of the Returning Officer, therefore whatever might be the amplitude of the power vested in the Commission under Article 243-K and Section 42 of the Madhya Pradesh Panchayat Election Act, they did not confer power on the Commission to upset the final decision arrived at by the Returning Officer accepting or rejecting the nomination paper and that the Election Commission had no jurisdiction to interfere at that stage in that matter. In our view, that judgment of the Madhya Pradesh High Court has no application to the facts of this case, firstly because the instructions issued in the present case are general instructions and therefore it does not amount to interfering with the individual case; and secondly because we are of the view that the orders passed by any authority under the Act and Rules which are made final, are orders passed bona fide in the exercise of power and not those orders where the Officer becomes a party to the fraud as the fraud nullifies and vitiates the action of such an authority. Therefore, this judgment does not help the petitioner but on the contrary, in our view, it cuts at the root of the contention of the petitioner.
13. Here we may point out that the scheme of the provisions of the Constitution as well as the Andhra Pradesh Panchayat Raj Act and the Rules made thereunder as can be seen from Section 233 of the Act and the Rules is that any election to the Gram Panchayat can be called in question by an Election petition presented to such authority and in accordance with the reasons given thereunder. Rule 12 (d)(iii) and (iv) of the said Rules, in our view, is wide-enough to take cognizance of the complaint of the petitioner, namely, the declaration of result is contrary to Rule 35. Having regard to the scheme of the Constitution, the Act and the Rules and the fact that there is an effective alternative remedy of filing election petition is available to the petitioner, we are not inclined to admit the Writ Petitions. The Writ Petitions are accordingly dismissed. No costs.
14. Mr. Sudarshan Reddy, however, submits that as an abundant caution the parties have already approached the Tribunal, a direction be issued to the Tribunal to dispose of the petition within four months. It is needless to mention that the very nature of the dispute requires expeditious disposal. We, therefore, direct the Tribunal to dispose of the petition without any avoidable delay, in any event within a period of six months from the date of receipt of this order.