Punnam Aruna Vs. Election Commission and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - even otherwise, the learned counsel would submit that if the request for recount to be said to be not in accordance with the rules or any contravention of the rules, the said aspect also can be well agitated in the election o. 6 and 7 high-handedly entered into counting hall and had taken away ballot box and threw it into abounded well situated behind upper primary school in which the counting of votes took place. the sub-inspector of police visited the village on 30 7 2006 along with other officials and retrieved the ballot box from the well in the presence panchas and conducted scene of offence panchnama on 30.7.2006 at 3.00 p. the 5th respondent even after retrieving the ballot box from the well had verified the ballot papers in the presence of witnesses and police officer and found none of the ballot papers were damaged. 6 and 7 and their followers high handedly taken away the ballot box and threw it into a well. the returning officer even after retrieving the ballot box from the well ought to have passed orders for re-count instead of submitting incorrect report to the second respondent stating that the ballot papers are wet with water and unfit for recounting. 6 and 7 and their followers are responsible for throwing away the ballot box into well. without hearing the words of the returning officer stage ii, some people from outside had forcibly entered in the polling booth, by pulling the collar of the returning officer stage ii and had taken away the ballot box containing the sarpanch and ward member ballot papers and other related election material and thrown it in the well behind the upper primary school, mulkapally. 22, dated 29.7.2006 against the unidentified persons who had thrown the ballot box in the well. on the 2nd day a detailed enquiry was conducted by the mandal parishad development officer-cum-assistant district election authority and had submitted that the ballot papers taken out from the well were soiled, spoiled and were not in a position for recount. , this respondent along with the mandal parishad development officer, mogullapally, divisional panchayat officer, mulug, sub-divisional police officer, parkal, circle inspector of police, chityal and sub-inspector of police, mogullapally had proceeded to the mulkapally gram panchayat, mogullapally mandal and had taken out the ballot box containing the ballot papers of sarpanch and ballot papers of ward members from the well. 1787/sec-82/2006-i, dated 27.7.2006 to the district collectors and district election authorities to take a decision for continuation of adjourned poll or fresh poll at any polling station located in the gram panchayats, at that polling station when- 1. any ballot box had been unlawfully taken away by an unauthorized person, or 2. any ballot box had been accidentally or intentionally destroyed or lost or damaged or tampered with and if satisfied that the result of the poll at that polling station cannot be ascertained for that reason, therefore, in exercise of the powers delegated by the state election commission, it was ordered for re-poll of sarpanch election in respect of the mulkapally gram panchayat, mogullapally mandal on 31.7.2006. as some of the villagers of the mulkapally gram panchayat, mogullapally mandal dated 29.7.2006 had filed a complaint against the returning officer stage ii, sri dayakar redely, the returning officer stage ii was changed and the extension offi thoutam sarojana door 4872. nallabheem vijayalaxmi gas stove 3463. punnam aruna harmonium 204. merugu rajeshwari hat 035. vadija hamsa bai iron box 08invalid votes 15 total votes polled 879 17. as per the report of the returning officer stage ii, after declaration of the result of the sarpanch, as per programme, the upa-sarpanch elections were conducted, duly administering the oath by the attended members and sarpanch, and sri ashadapu ravichandrudu had been elected as upa-sarpanch unanimously, which is evident from the minutes of the upa-sarpanch election conducted by returning officer stage ii on 31.7.2006. it is not correct to say that the sarpanch had not taken oath on 31.7.2006. 18. it is further stated that on 29.7.2006 before declaration of results, the ballot papers along with ballot box had been unauthorisedly taken away and thrown as per the report of mandal parishad development officer, on 30.7.2006 the ballot box was taken out from the well and it was found that the ballot papers were soiled, spoiled and were not in a position to count them and it is a fit case for conducting re-poll. or (b) any voting machine develops a mechanical failure during the course of the recording of votes; or (b) if satisfied that the result of a fresh poll at the polling station will not, in any way, affect the result of the election or that the mechanical failure of the voting machine or the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election. or (b) if satisfied that the result of a fresh poll at that polling station will not, in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted. 22. further strong reliance was placed on rules 55, 56, 59 and 60 of the rules relating to the a. 23. strong reliance was placed on nazir ahmed v. further strong reliance was placed on the decision of the division bench of this court in k. 1998(4)ald564 .24. sri prabhakar rao, the learned standing counsel representing state election commission further placed strong reliance on a. be that as it may, at a careful scrutiny of the impugned order it appears that the first respondent-state election commission was satisfied that inasmuch as the forms were not duly signed and the election results had not been declared and from the report submitted since sufficient material was not available to make such declaration, in view of the lapse of time, the first respondent thought it fit to order re-poll. 26. on a perusal of the facts and circumstances and also sections 210 and 232 of the act and further, in the light of the stand taken that on 29.7.2006 before the declaration of results, the ballot papers along with ballot box had been taken away and thrown in a nearby well and as per the report of the mandal parishad development officer the ballot box was taken out of the well and it was found that ballot papers were spoiled and were not in a position to count them and it is a fit case for conducting poll, this court is of the opinion that in the said facts and circumstances, prima facie, ordering of the re-poll cannot be found fault.orderp.s. narayana, j.1. this court issued rule nisi on 22.8.2006 and an order of status quo made for limited period is being continued from time to time. the counter-affidavit is filed on behalf of r4. the counsel on record requested for the final disposal of the writ petition.2. sri a. prabhakar rao, the learned counsel representing the writ petitioner would maintain that in the facts and circumstances of the case, ordering of re-poll is without authority and without jurisdiction. the learned counsel also would submit that though election op. no. 11 of 2006 on the file of junior civil judge, parkal already was filed, the question raised in the present writ petition cannot be gone into in the said election o.p., and hence, the present writ petition to be decided on merits. the learned counsel also pointed out that oral request for the purpose of recounting is not contemplated and apart from the same there are several illegalities and when the statute ordains a particular thing to be done in a particular fashion, the same may have to be done as per the provisions of the statute or the relevant statutory rules. hence, the counsel would contend that the writ petition to be allowed as prayed for. the learned counsel also placed reliance on several decisions to substantiate his contention.3. per contra, sri v.v. prabhakar rao, the learned standing counsel would submit that as far as ordering of re-poll by the second respondent, the district election authority is concerned in the light of sections 232 and 210 of the a.p. panchayat raj act, 1994, the said power had been exercised in accordance with law and hence, it cannot be said that the first respondent-state election commission had no authority to delegate and further, it cannot be said that the second respondent-district election authority has no power or authority to make such orders. even otherwise, the learned counsel would submit that if the request for recount to be said to be not in accordance with the rules or any contravention of the rules, the said aspect also can be well agitated in the election o.p., which had been already filed. even otherwise, the counsel would submit that in the light of article 243e of the constitution of india, the office of the sarpanch cannot be kept vacant and by virtue of the interim order granted by this court, the oath was not administered to the present elected sarpanch. the learned counsel also had taken this court through certain decisions to substantiate his contention.4. sri pankaj reddy, the learned counsel representing r-6, virtually adopted the arguments advanced by sri v.v. prabhakar rao, the learned standing counsel representing r. 1 to r. 4 ad would contend that in the facts and circumstances of the case the appropriate remedy available to the petitioner is to approach the concerned election tribunal and having approached the concerned election tribunal, the petitioner cannot be permitted to prosecute simultaneous remedies. at any rate, the counsel would submit that in the light of the plenary powers of the first respondent-state election commission and also in the light of the sections 210 and 232 of the a.p. panchayat raj act 1994, it cannot be said that the order of re-poll made by the district election authority, the second respondent is wholly without jurisdiction.5. heard the counsel on record.6. punnam aruna, the writ petitioner filed the present writ petition praying for a writ of mandamus declaring the order dated 30.7.2006 in proceedings no. 2321/2006/el/a2 passed by the 2nd respondent and also to declare the consequential re-poll held pursuant to the aforesaid impugned order dated 3.7.2006 and also to declare the consequential election of 6th respondent and sarpanch of gram panchayat, mulkapally, mogullapalli mandal, warangal district, as illegal, arbitrary, without jurisdiction and consequently direct the respondents 1 to 5 to declare the result of the election to the office of sarpanch pursuant to the elections held on 29.7.2006 and to pass such other order.7. it is stated by the writ petitioner that respondents 6 to 9 and the petitioner are residents of mulkalpally village, mogullapally mandal, warangal district. the first respondent herein issued notification dated 9.7.2006 in proceedings no. 730/sec-b2/2006 and in pursuance thereof issued notification dated 15.7.2006 fixing election program for conduct of elections to the ward members and sarpanch of the gram panchayats. the said election program reads as under: _____________________________________________________________________________________ a. filing of nominations from 15.7.2006 (before 10.30 a.m. to 5 p.m.) b. the last date for filing of nomination 19.7.2006 (upto 5 p.m.) c. scrutiny of nominations 20.7.2006 (11 a.m., onwards) d. appeal before r.d.o. against 21.7.2006 (upto 5 p.m.) rejection of nomination e. disposal of the appeal 22.7.2006 f. last date for withdrawal 23.7.2006 (not later than 3.00 p.m.) g. publication of list of contesting 23.7.2006 (after 3.00 p.m.) candidate h. date of polling 29.7.2006 (upto 1 p.m.) i. date of counting of votes 29.7.2006 (from 2 p.m. onwards) j. declaration of results soon after completion of counting of votes. k. date of conduct of election on the same day on which results are of upa-sarpanch declared. _____________________________________________________________________________________8. it is also stated mat the office of sarpanch of mulkalpally gram panchayat is reserved for b.c. (woman). the petitioner and the respondents 6 to 9 contested for the election to the office of sarpanch. the polling was held in accordance with election programme on 29.7.2006 upto 1-00 p.m. in the afternoon the counting of ballot papers was commenced and concluded in the presence of presiding officers, returning officer and counting agents and the candidates. the returning officer, who is the respondent no. 5 herein, made entries in a result sheet in form no. xxvi and announced the particulars. the following are the number of votes secured by each of the contesting candidates.____________________________________________________________________________s.no. name of the candidate symbol votes total1. thoutam sarojana door 25x11 275+21=2962. nallabheem vijayalaxmi gas stove 25x13 325+06=3313. punnam aruna harmonium 25x13 325+10=3354. merugu rajeshwari hat 08 085. vadija hamsa bai iron box 25x1 25+01=06invalid votes 20____________________________________________________________________________9. it is further averred in para 5 of the affidavit filed in support of writ petition that immediately after announcing the number of votes secured by each candidate and also announcing that petitioner got 4 votes more than the nearest contesting candidate i.e., respondent no. 7, the people waiting outside the counting hall raised hue and cry. the returning officer, on the request of the election agents of respondent nos. 6 and 7 for recount, informed them that the recounting will be done after arrival of additional force. the returning officer placed all ballot papers polled in respect of sarpanch and ward members in the ballot box and sealed. the followers of respondents nos.6 and 7 high-handedly entered into counting hall and had taken away ballot box and threw it into abounded well situated behind upper primary school in which the counting of votes took place. it is stated that the respondent no. 5 in collusion with the respondent nos. 6 and 7 did not announce the election result and allowed them and their followers to take away the ballot box. the respondent no. 5 submitted a report to the police station, magullapally requesting to take suitable action against the perpetrators of the offence. the sub-inspector of police, on receipt of the report registered a case in crime no. 33 of 2006 and took up the investigation. the sub-inspector of police visited the village on 30 7 2006 along with other officials and retrieved the ballot box from the well in the presence panchas and conducted scene of offence panchnama on 30.7.2006 at 3.00 p.m. it is stated that incidentally the ballot papers pertaining to ward members, whose results were announced, were placed underneath of the ballot box and the ballot papers pertaining to office of sarpanch was placed over and above the ballot papers of ward members in the ballot box. it is stated that none of the ballot papers polled in favour of contesting candidates of sarpanch are damaged. the 5th respondent even after retrieving the ballot box from the well had verified the ballot papers in the presence of witnesses and police officer and found none of the ballot papers were damaged. the sub-inspector of police examined the list of witnesses and recorded their statements. the 5th respondent in collusion with the respondent nos.6 and 7 did not declare the election on 29.7.2006 and also on 30.7.2006. the 4th respondent has submitted a report to the 2nd respondent on 30.7.2006 stating that the ballot papers were damaged as they were wet with the water and stated that the ballot papers are unfit for recounting. the 2nd respondent on receipt of the report, passed an order dated 30.7.2006 without causing any enquiry and without ascertaining the truth or otherwise of the incident, and ordered re-poll by directing that the re-poll to be held on 31.7.2000 at 7.00 a.m. the assistant district election authority on 30.7.2006 visited the village in the night and pasted notice stating that re-poll will be held on 31.7.2006.10. it is also further stated that though the re-poll was ordered by the second respondent the petitioner had not participated in the re-poll and did not exercise the franchise, and in fact protested the re-poll and in the said process, the followers of the petitioner received injuries at the hands of respondents 6 and 7. in the said re-poll respondent no. 6 was declared as elected as sarpanch and the oath of the office of the sarpanch was to be administered on 23.8.2006. it is also further stated that the respondents 2 to 5 in collusion with each and by yielding to the pressure of the respondents 6 and 7 and their leaders, had passed orders for conduct of re-poll. the said order passed by the second respondent dated 30.7.2006 is illegal, arbitrary and contrary to the provisions of a.p. panchayat raj act 1994 and the rules made thereunder.11. it is also stated in para 9 of the affidavit filed in support of the writ petition that the counting of the ballot papers is complete and final result sheet is duly filled with particulars and announcement with regard to number of votes secured by each contesting candidate had also been made. thus, the petitioner got four votes more than the 7th respondent, who is the nearest rival contestant. thereafter, a request said to have been made for recount on behalf of the 6th and 7th respondents. even before any decision was taken as to whether recount is to be made or not the respondent nos.6 and 7 and their followers high handedly taken away the ballot box and threw it into a well. therefore, the benefit of recount cannot be made in favour of perpetrators of the offence. the returning officer had got discretionary powers under rule 69 either to allow or reject the application made for recount in whole or part. the rule 69 confers power on the returning officer to reject the application if it does not disclose valid reasons. the returning officer even after retrieving the ballot box from the well ought to have passed orders for re-count instead of submitting incorrect report to the second respondent stating that the ballot papers are wet with water and unfit for recounting. the second respondent in turn without any verification as a matter of course ordered for re-poll for the benefit of the respondent nos. 6 and 7. the investigation discloses that the respondent nos. 6 and 7 and their followers are responsible for throwing away the ballot box into well.12. it is further stated that the order dated 30.7.2006 passed by the second respondent is liable to be set aside since the same is made contrary to the provisions of the a.p. panchayat raj act and the rules made thereunder and consequently the re-poll held pursuant to the impugned order also cannot be sustained. it is also further stated that the election tribunal is not conferred with any power to decide the validity of order dated 30.7.2006 and also to hold that consequential poll held on 31.7.2006 as invalid. the relevant provisions of the a.p. panchayat raj act 1994 and the rules governing the field also had been specified in the affidavit filed in support of the writ petition.13. the 4th respondent filed counter-affidavit. it was averred by the fourth respondent in the counter-affidavit that the state election commission had given notification for conduct of 3rd ordinary elections to the gram panchayats vide notification no. 730/sec-b2/2006, dated 9.7.2006. accordingly, the district panchayat officer and additional district election authority, warangal had communicated the election programme, in which elections to the office of sarpanch and ward members of mulkapally gram panchayat, mogullapally mandal is on 29.7.2006. the returning officer stage-ii, mulkapally gram panchayat, mogullapally mandal had submitted report stating that on 29.7.2006, after declaring the results of 10 wards, they had counted the votes of sarpanch contesting candidates and the results of the poll was prepared as follows:___________________________________________________________________________s.no. name of the candidate symbol no. of votes gained___________________________________________________________________________1. thoutam sarojana door 2962. nallabheem vijayalaxmi gas stove 3313. punnam aruna harmonium 3354. merugu rajeshwari hat 085. vadija hamsa bai iron box 26 invalid votes 20___________________________________________________________________________total votes polled 1016___________________________________________________________________________14. after declaring the results of 10 wards and before declaring the results of sarpanch elections officially, some of the counting agents had forcibly entered and demanded for recounting of the sarpanch ballot papers on the ground that some of the ballots were mixed with the other candidates. the returning officer stage ii had accepted orally the demand of recount and requested to wait for sometime for the additional police force. without hearing the words of the returning officer stage ii, some people from outside had forcibly entered in the polling booth, by pulling the collar of the returning officer stage ii and had taken away the ballot box containing the sarpanch and ward member ballot papers and other related election material and thrown it in the well behind the upper primary school, mulkapally. as he did not have the basis and evidence for declaring the results, he did not declare the results of sarpanch elections. it is further stated that a case had been booked in the police station, mogullapally in fir no. 22, dated 29.7.2006 against the unidentified persons who had thrown the ballot box in the well. on the 2nd day a detailed enquiry was conducted by the mandal parishad development officer-cum-assistant district election authority and had submitted that the ballot papers taken out from the well were soiled, spoiled and were not in a position for recount. the supervisory officer, mogullapally mandal had also submitted a report stating that on 30.7.2006 at about 3.00 p.m., this respondent along with the mandal parishad development officer, mogullapally, divisional panchayat officer, mulug, sub-divisional police officer, parkal, circle inspector of police, chityal and sub-inspector of police, mogullapally had proceeded to the mulkapally gram panchayat, mogullapally mandal and had taken out the ballot box containing the ballot papers of sarpanch and ballot papers of ward members from the well. the ballot box was badly damaged and the ballot papers were soiled in the well containing four feet of water. on the basis of the 1st report of the returning officer stage ii and reports of the mandal parishad development officer, mogullapally and special officer, mogullapally, it was concluded that the election process was vitiated before declaration of the result and the result cannot be declared.15. it is also further stated that the post of sarpanch, mulkapally gram panchayat is reserved for b.c. (women) category and election process had been taken up as per the election schedule. further, it is to submit that under section 225 sub-sections (1) and (2) of andhra pradesh panchayat raj act 1994 the state election commission had delegated the powers vide order no. 1787/sec-82/2006-i, dated 27.7.2006 to the district collectors and district election authorities to take a decision for continuation of adjourned poll or fresh poll at any polling station located in the gram panchayats, at that polling station when-1. any ballot box had been unlawfully taken away by an unauthorized person, or2. any ballot box had been accidentally or intentionally destroyed or lost or damaged or tampered with and if satisfied that the result of the poll at that polling station cannot be ascertained for that reason,therefore, in exercise of the powers delegated by the state election commission, it was ordered for re-poll of sarpanch election in respect of the mulkapally gram panchayat, mogullapally mandal on 31.7.2006. as some of the villagers of the mulkapally gram panchayat, mogullapally mandal dated 29.7.2006 had filed a complaint against the returning officer stage ii, sri dayakar redely, the returning officer stage ii was changed and the extension officer (pr & rd), parkal was appointed was returning officer stage ii for conduct of the re-poll of sarpanch election on 31.7.2006.16. it is also further stated that re-poll of sarpanch election in respect of mulkapally gram panchayat, mogullapally was conducted on 31.7.2006 and the result of the re-poll is as follows:_______________________________________________________________________s.no. name of the candidate symbol no. of votes gained_______________________________________________________________________1. thoutam sarojana door 4872. nallabheem vijayalaxmi gas stove 3463. punnam aruna harmonium 204. merugu rajeshwari hat 035. vadija hamsa bai iron box 08invalid votes 15_______________________________________________________________________total votes polled 879_______________________________________________________________________17. as per the report of the returning officer stage ii, after declaration of the result of the sarpanch, as per programme, the upa-sarpanch elections were conducted, duly administering the oath by the attended members and sarpanch, and sri ashadapu ravichandrudu had been elected as upa-sarpanch unanimously, which is evident from the minutes of the upa-sarpanch election conducted by returning officer stage ii on 31.7.2006. it is not correct to say that the sarpanch had not taken oath on 31.7.2006.18. it is further stated that on 29.7.2006 before declaration of results, the ballot papers along with ballot box had been unauthorisedly taken away and thrown in the nearby well. as per the report of mandal parishad development officer, on 30.7.2006 the ballot box was taken out from the well and it was found that the ballot papers were soiled, spoiled and were not in a position to count them and it is a fit case for conducting re-poll. specific stand was taken in para 7 of the counter-affidavit that it is not correct to say that counting of ballot papers is completed and final result sheet is filled with particulars and announcement with regard to number of votes secured by each candidate had been done. it is a fact that after declaring the results of 10 wards they had counted the votes of sarpanch contesting candidates and the result of the poll is prepared. it is further stated in para 8 of the counter-affidavit that after declaration of the result, as per programme, the upa-sarpanch election was conducted by the returning officer stage ii. before the election, the attendance of the members and sarpanch had been taken up and the oath to all the attended members and sarpanch had been administered, as evident from the minutes of the upa-sarpanch elections by the returning officer stage ii. therefore, it is not correct to say that the oath is not administered. the day 23.8.2006 is the date fixed for the first meeting of the elected body of the 3rd ordinary elections.19. section 210 of the a.p. panchayat raj act 1994 (hereinafter, for short, referred to as 'the act' for the purpose of convenience) dealing with the electoral officers and staff etc., deemed to be on deputation, reads as hereunder:270. electoral officers and staff etc., deemed to be on deputation:-(1) any officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of all elections shall be deemed to be on deputation to the state election commissioner for the period during which they are so employed and such officers and staff shall during that period, be subject to the control, superintendence ad discipline of the state election commission.(2) the returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this act, and any police officer designed for the time being by the state government for the conduct of any elections shall be deemed to be on deputation to the state election commission for the period commencing on and from the date of notification calling for such elections and ending with the date of declaration of the results of such elections and such officer shall during that period, be subject to the control, superintendence and discipline of the state election commissioner.20. section 232 of the act dealing with power to delegate reads as hereunder:232. power to delegate:- the (andhra pradesh election commissioner for local bodies) may, subject of such conditions and restrictions as the government may, by general or special order, impose, by order in writing delegate to any officer or authority subordinate to him, either generally or as respects any particular matter or class of matters any of his powers under this act.21. it is needless to say that section 233 of the said act deals with election petitions. it may also be relevant to have a glance at sections 225-c and 225-d of the act and the said provisions read as hereunder:225c. fresh poll in the case of destruction etc. of ballot boxes:-(1) if at any election,-(a) any ballot box used at a polling station is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with, to such an extent, that the result of the poll at the polling station cannot be ascertained; or(b) any voting machine develops a mechanical failure during the course of the recording of votes; or(c) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station, the returning officer shall forthwith report the matter to the state election commission.(2) thereupon the state election commission shall, after taking all material circumstances into account; either-(a) declare the poll at that polling station to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station and notify the day so appointed and the hours so fixed in such manner as it may deem fit; or(b) if satisfied that the result of a fresh poll at the polling station will not, in any way, affect the result of the election or that the mechanical failure of the voting machine or the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election.(3) the provisions of this act of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.225d. destruction, loss, etc., of ballot papers at the time of counting:- (1) if any before the counting of votes is completed any ballot papers used at a polling station are unlawfully taken out of the custody of the returning officer or any accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at the polling station cannot be ascertained, the returning officer shall forthwith report the matter to the state election commission.(2) thereupon, the state election commission shall, after taken all material circumstances into account, either:(a) direct that the counting of votes shall be stopped, declare the poll at the polling station to be void, appoint a day, and fix the hours, for taking a fresh poll at the polling station and notify the date so appointed and hours so fixed in such manner as it may deem fit; or(b) if satisfied that the result of a fresh poll at that polling station will not, in any way, affect the result of the election, issue such directions to the returning officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted.(3) the provisions of this act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.22. further strong reliance was placed on rules 55, 56, 59 and 60 of the rules relating to the a.p. panchayat raj (conduct of elections of members and sarpanch of gram panchayats, members of mandal parishads and members of zilla parishads) rule 2006, g.o. ms. no. 142, panchayat raj and rural development (elections) department, dated 3.5.2006. submissions at length were made relating to certain contraventions of the rules and the illegalities committed in relation thereto by the concerned authorities.23. strong reliance was placed on nazir ahmed v. emperor air 1936 pc 253 hukum chand shyam lal v. union of india and ors. : [1976]2scr1060 and dhanajaya reddy v. state of karnataka 2001 (4) scc 9, to substantiate the stand that when statute ordains a particular act to be done in a particular mode, the same to be done in accordance with the provisions of the statute and not beyond thereto. further strong reliance was placed on the decision of the division bench of this court in k. ramanjaneyulu v. the stage-2 officer, kotanka gram panchayat and ors. : 1996(1)alt451 , in this regard. further, attention of this court was drawn to yet another decision of the division bench in y. venkat reddy v. court of the district munsif, atmakur and ors. : 1998(4)ald564 .24. sri prabhakar rao, the learned standing counsel representing state election commission further placed strong reliance on a.c. jose v. sivan pillai and ors. : [1984]3scr74 , wherein the apex court at para 25 observed:to sum up, therefore, the legal and constitutional position is as follows:(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.25. reliance also was placed on p. jagadamba v. state election commission, secunderabad and ors. : 2006(5)ald526 , wherein this court at para 24 observed as hereunder:be that as it may, at a careful scrutiny of the impugned order it appears that the first respondent-state election commission was satisfied that inasmuch as the forms were not duly signed and the election results had not been declared and from the report submitted since sufficient material was not available to make such declaration, in view of the lapse of time, the first respondent thought it fit to order re-poll. in the light of the said reasons recorded, though on other grounds the re-poll is not justified, this court is of the considered opinion that it cannot be said that the impugned action is one without jurisdiction. but, however, this court again cautions, in the matter of this nature, the first respondent-election commission could have been more careful and cautious while ordering re-poll especially keeping in view the peculiar facts in this case.26. on a perusal of the facts and circumstances and also sections 210 and 232 of the act and further, in the light of the stand taken that on 29.7.2006 before the declaration of results, the ballot papers along with ballot box had been taken away and thrown in a nearby well and as per the report of the mandal parishad development officer the ballot box was taken out of the well and it was found that ballot papers were spoiled and were not in a position to count them and it is a fit case for conducting poll, this court is of the opinion that in the said facts and circumstances, prima facie, ordering of the re-poll cannot be found fault. it is no doubt true that this court observed that while ordering re-poll, the state election commission or the authorities to be careful and cautious. but however, an element of discretion and margin to be given to the authorities while taking a decision whether in a given situation re-poll to be ordered or not. however, this court is not inclined to express any further opinion relating to the other factual controversies while disposing of this writ petition, for the reason that it is stated that already the petitioner filed o.p. no. 11 of 2006 on the file of the junior civil judge, parkal. hence, liberty is given to the petitioner to raise all these grounds also in the said election petition and agitate the same in accordance with law. except giving this liberty nothing else can be done at this stage.27. in the light of the reasons recorded supra, the writ petition being devoid of merits, the same shall stand dismissed, subject to the above observations. no order as to costs.28. in view of the peculiar facts and circumstances, the election tribunal - junior civil judge, parkal to make an endeavour to expedite the disposal of election o.p. no. 11 of 2006, at the earliest point of time, preferably within a period of four months from the date of the receipt of a copy of this order.

Judgment:
ORDER

P.S. Narayana, J.

1. This Court issued Rule Nisi on 22.8.2006 and an order of status quo made for limited period is being continued from time to time. The counter-affidavit is filed on behalf of R4. The Counsel on record requested for the final disposal of the writ petition.

2. Sri A. Prabhakar Rao, the learned Counsel representing the writ petitioner would maintain that in the facts and circumstances of the case, ordering of re-poll is without authority and without jurisdiction. The learned Counsel also would submit that though election OP. No. 11 of 2006 on the file of Junior Civil Judge, Parkal already was filed, the question raised in the present writ petition cannot be gone into in the said election O.P., and hence, the present writ petition to be decided on merits. The learned Counsel also pointed out that oral request for the purpose of recounting is not contemplated and apart from the same there are several illegalities and when the statute ordains a particular thing to be done in a particular fashion, the same may have to be done as per the provisions of the statute or the relevant statutory rules. Hence, the Counsel would contend that the writ petition to be allowed as prayed for. The learned Counsel also placed reliance on several decisions to substantiate his contention.

3. Per contra, Sri V.V. Prabhakar Rao, the learned Standing Counsel would submit that as far as ordering of re-poll by the second respondent, the District Election Authority is concerned in the light of Sections 232 and 210 of the A.P. Panchayat Raj Act, 1994, the said power had been exercised in accordance with law and hence, it cannot be said that the first respondent-State Election Commission had no authority to delegate and further, it cannot be said that the second respondent-District Election Authority has no power or authority to make such orders. Even otherwise, the learned Counsel would submit that if the request for recount to be said to be not in accordance with the rules or any contravention of the Rules, the said aspect also can be well agitated in the election O.P., which had been already filed. Even otherwise, the Counsel would submit that in the light of Article 243E of the Constitution of India, the office of the Sarpanch cannot be kept vacant and by virtue of the interim order granted by this Court, the oath was not administered to the present elected Sarpanch. The learned Counsel also had taken this Court through certain decisions to substantiate his contention.

4. Sri Pankaj Reddy, the learned Counsel representing R-6, virtually adopted the arguments advanced by Sri V.V. Prabhakar Rao, the learned Standing Counsel representing R. 1 to R. 4 ad would contend that in the facts and circumstances of the case the appropriate remedy available to the petitioner is to approach the concerned Election Tribunal and having approached the concerned Election Tribunal, the petitioner cannot be permitted to prosecute simultaneous remedies. At any rate, the Counsel would submit that in the light of the plenary powers of the first respondent-State Election Commission and also in the light of the Sections 210 and 232 of the A.P. Panchayat Raj Act 1994, it cannot be said that the order of re-poll made by the District Election Authority, the second respondent is wholly without jurisdiction.

5. Heard the Counsel on record.

6. Punnam Aruna, the writ petitioner filed the present writ petition praying for a writ of mandamus declaring the order dated 30.7.2006 in Proceedings No. 2321/2006/EL/A2 passed by the 2nd respondent and also to declare the consequential re-poll held pursuant to the aforesaid impugned order dated 3.7.2006 and also to declare the consequential election of 6th respondent and Sarpanch of Gram Panchayat, Mulkapally, Mogullapalli Mandal, Warangal District, as illegal, arbitrary, without jurisdiction and consequently direct the respondents 1 to 5 to declare the result of the election to the office of Sarpanch pursuant to the elections held on 29.7.2006 and to pass such other order.

7. It is stated by the writ petitioner that respondents 6 to 9 and the petitioner are residents of Mulkalpally Village, Mogullapally Mandal, Warangal District. The first respondent herein issued notification dated 9.7.2006 in Proceedings No. 730/SEC-B2/2006 and in pursuance thereof issued notification dated 15.7.2006 fixing election program for conduct of elections to the Ward Members and Sarpanch of the Gram Panchayats. The said election program reads as under:

_____________________________________________________________________________________

a. Filing of nominations from 15.7.2006 (Before 10.30 a.m. to 5 p.m.)

b. The last date for filing of nomination 19.7.2006 (upto 5 p.m.)

c. Scrutiny of nominations 20.7.2006 (11 a.m., onwards)

d. Appeal before R.D.O. against 21.7.2006 (upto 5 p.m.)

rejection of nomination

e. Disposal of the appeal 22.7.2006

f. Last date for withdrawal 23.7.2006

(not later than 3.00 p.m.)

g. Publication of List of Contesting 23.7.2006 (After 3.00 p.m.)

candidate

h. Date of polling 29.7.2006 (upto 1 p.m.)

i. Date of counting of votes 29.7.2006 (from 2 p.m. onwards)

J. Declaration of results Soon after completion of counting of votes.

K. Date of conduct of election On the same day on which results are

of Upa-Sarpanch declared.

_____________________________________________________________________________________

8. It is also stated mat the office of Sarpanch of Mulkalpally Gram Panchayat is reserved for B.C. (Woman). The petitioner and the respondents 6 to 9 contested for the election to the office of Sarpanch. The polling was held in accordance with election programme on 29.7.2006 upto 1-00 p.m. In the afternoon the counting of ballot papers was commenced and concluded in the presence of Presiding Officers, Returning Officer and counting agents and the candidates. The Returning Officer, who is the respondent No. 5 herein, made entries in a result sheet in Form No. XXVI and announced the particulars. The following are the number of votes secured by each of the contesting candidates.

____________________________________________________________________________S.No. Name of the Candidate Symbol Votes Total1. Thoutam Sarojana Door 25x11 275+21=2962. Nallabheem Vijayalaxmi Gas Stove 25x13 325+06=3313. Punnam Aruna Harmonium 25x13 325+10=3354. Merugu Rajeshwari Hat 08 085. Vadija Hamsa Bai Iron Box 25x1 25+01=06Invalid votes 20____________________________________________________________________________

9. It is further averred in Para 5 of the affidavit filed in support of writ petition that immediately after announcing the number of votes secured by each candidate and also announcing that petitioner got 4 votes more than the nearest contesting candidate i.e., respondent No. 7, the people waiting outside the Counting Hall raised hue and cry. The Returning Officer, on the request of the Election Agents of respondent Nos. 6 and 7 for recount, informed them that the recounting will be done after arrival of additional force. The Returning Officer placed all ballot papers polled in respect of Sarpanch and Ward Members in the ballot box and sealed. The followers of respondents Nos.6 and 7 high-handedly entered into Counting Hall and had taken away ballot box and threw it into abounded well situated behind upper primary school in which the counting of votes took place. It is stated that the respondent No. 5 in collusion with the respondent Nos. 6 and 7 did not announce the election result and allowed them and their followers to take away the ballot box. The respondent No. 5 submitted a report to the Police Station, Magullapally requesting to take suitable action against the perpetrators of the offence. The Sub-Inspector of Police, on receipt of the report registered a case in Crime No. 33 of 2006 and took up the investigation. The Sub-Inspector of Police visited the village on 30 7 2006 along with other officials and retrieved the ballot box from the well in the presence panchas and conducted scene of offence panchnama on 30.7.2006 at 3.00 p.m. It is stated that incidentally the ballot papers pertaining to Ward Members, whose results were announced, were placed underneath of the ballot box and the ballot papers pertaining to office of Sarpanch was placed over and above the ballot papers of Ward Members in the ballot box. It is stated that none of the ballot papers polled in favour of contesting candidates of Sarpanch are damaged. The 5th respondent even after retrieving the ballot box from the well had verified the ballot papers in the presence of witnesses and Police Officer and found none of the ballot papers were damaged. The Sub-Inspector of Police examined the list of witnesses and recorded their statements. The 5th respondent in collusion with the respondent Nos.6 and 7 did not declare the election on 29.7.2006 and also on 30.7.2006. The 4th respondent has submitted a report to the 2nd respondent on 30.7.2006 stating that the ballot papers were damaged as they were wet with the water and stated that the ballot papers are unfit for recounting. The 2nd respondent on receipt of the report, passed an order dated 30.7.2006 without causing any enquiry and without ascertaining the truth or otherwise of the incident, and ordered re-poll by directing that the re-poll to be held on 31.7.2000 at 7.00 a.m. The Assistant District Election Authority on 30.7.2006 visited the village in the night and pasted notice stating that re-poll will be held on 31.7.2006.

10. It is also further stated that though the re-poll was ordered by the second respondent the petitioner had not participated in the re-poll and did not exercise the franchise, and in fact protested the re-poll and in the said process, the followers of the petitioner received injuries at the hands of respondents 6 and 7. In the said re-poll respondent No. 6 was declared as elected as Sarpanch and the oath of the office of the Sarpanch was to be administered on 23.8.2006. It is also further stated that the respondents 2 to 5 in collusion with each and by yielding to the pressure of the respondents 6 and 7 and their leaders, had passed orders for conduct of re-poll. The said order passed by the second respondent dated 30.7.2006 is illegal, arbitrary and contrary to the provisions of A.P. Panchayat Raj Act 1994 and the Rules made thereunder.

11. It is also stated in Para 9 of the affidavit filed in support of the writ petition that the counting of the ballot papers is complete and final result sheet is duly filled with particulars and announcement with regard to number of votes secured by each contesting candidate had also been made. Thus, the petitioner got four votes more than the 7th respondent, who is the nearest rival contestant. Thereafter, a request said to have been made for recount on behalf of the 6th and 7th respondents. Even before any decision was taken as to whether recount is to be made or not the respondent Nos.6 and 7 and their followers high handedly taken away the ballot box and threw it into a well. Therefore, the benefit of recount cannot be made in favour of perpetrators of the offence. The Returning Officer had got discretionary powers under Rule 69 either to allow or reject the application made for recount in whole or part. The Rule 69 confers power on the Returning Officer to reject the application if it does not disclose valid reasons. The Returning Officer even after retrieving the ballot box from the well ought to have passed orders for re-count instead of submitting incorrect report to the second respondent stating that the ballot papers are wet with water and unfit for recounting. The second respondent in turn without any verification as a matter of course ordered for re-poll for the benefit of the respondent Nos. 6 and 7. The investigation discloses that the respondent Nos. 6 and 7 and their followers are responsible for throwing away the ballot box into well.

12. It is further stated that the order dated 30.7.2006 passed by the second respondent is liable to be set aside since the same is made contrary to the provisions of the A.P. Panchayat Raj Act and the Rules made thereunder and consequently the re-poll held pursuant to the impugned order also cannot be sustained. It is also further stated that the Election Tribunal is not conferred with any power to decide the validity of order dated 30.7.2006 and also to hold that consequential poll held on 31.7.2006 as invalid. The relevant provisions of the A.P. Panchayat Raj Act 1994 and the Rules governing the field also had been specified in the affidavit filed in support of the writ petition.

13. The 4th respondent filed counter-affidavit. It was averred by the fourth respondent in the counter-affidavit that the State Election Commission had given notification for conduct of 3rd ordinary elections to the Gram Panchayats vide Notification No. 730/SEC-B2/2006, dated 9.7.2006. Accordingly, the District Panchayat Officer and Additional District Election Authority, Warangal had communicated the election programme, in which elections to the office of Sarpanch and Ward Members of Mulkapally Gram Panchayat, Mogullapally Mandal is on 29.7.2006. The Returning Officer Stage-II, Mulkapally Gram Panchayat, Mogullapally Mandal had submitted report stating that on 29.7.2006, after declaring the results of 10 wards, they had counted the votes of Sarpanch contesting candidates and the results of the poll was prepared as follows:

___________________________________________________________________________S.No. Name of the candidate Symbol No. of votes gained___________________________________________________________________________1. Thoutam Sarojana Door 2962. Nallabheem Vijayalaxmi Gas Stove 3313. Punnam Aruna Harmonium 3354. Merugu Rajeshwari Hat 085. Vadija Hamsa Bai Iron Box 26 Invalid votes 20___________________________________________________________________________Total votes polled 1016___________________________________________________________________________

14. After declaring the results of 10 wards and before declaring the results of Sarpanch elections officially, some of the counting agents had forcibly entered and demanded for recounting of the Sarpanch ballot papers on the ground that some of the ballots were mixed with the other candidates. The Returning Officer Stage II had accepted orally the demand of recount and requested to wait for sometime for the additional police force. Without hearing the words of the Returning Officer Stage II, some people from outside had forcibly entered in the polling booth, by pulling the collar of the Returning Officer Stage II and had taken away the ballot box containing the Sarpanch and Ward Member ballot papers and other related election material and thrown it in the well behind the Upper Primary School, Mulkapally. As he did not have the basis and evidence for declaring the results, he did not declare the results of Sarpanch elections. It is further stated that a case had been booked in the Police Station, Mogullapally in FIR No. 22, dated 29.7.2006 against the unidentified persons who had thrown the ballot box in the well. On the 2nd day a detailed enquiry was conducted by the Mandal Parishad Development Officer-cum-Assistant District Election Authority and had submitted that the ballot papers taken out from the well were soiled, spoiled and were not in a position for recount. The Supervisory Officer, Mogullapally Mandal had also submitted a report stating that on 30.7.2006 at about 3.00 p.m., this respondent along with the Mandal Parishad Development Officer, Mogullapally, Divisional Panchayat Officer, Mulug, Sub-Divisional Police Officer, Parkal, Circle Inspector of Police, Chityal and Sub-Inspector of Police, Mogullapally had proceeded to the Mulkapally Gram Panchayat, Mogullapally Mandal and had taken out the ballot box containing the ballot papers of Sarpanch and ballot papers of Ward Members from the well. The ballot box was badly damaged and the ballot papers were soiled in the well containing four feet of water. On the basis of the 1st report of the Returning Officer Stage II and reports of the Mandal Parishad Development Officer, Mogullapally and Special Officer, Mogullapally, it was concluded that the election process was vitiated before declaration of the result and the result cannot be declared.

15. It is also further stated that the post of Sarpanch, Mulkapally Gram Panchayat is reserved for B.C. (Women) category and election process had been taken up as per the election schedule. Further, it is to submit that under Section 225 Sub-sections (1) and (2) of Andhra Pradesh Panchayat Raj Act 1994 the State Election Commission had delegated the powers vide Order No. 1787/Sec-82/2006-I, dated 27.7.2006 to the District Collectors and District Election Authorities to take a decision for continuation of adjourned poll or fresh poll at any Polling Station located in the Gram Panchayats, at that Polling Station when-

1. any ballot box had been unlawfully taken away by an unauthorized person, or

2. any ballot box had been accidentally or intentionally destroyed or lost or damaged or tampered with and if satisfied that the result of the poll at that Polling Station cannot be ascertained for that reason,

Therefore, in exercise of the powers delegated by the State Election Commission, it was ordered for re-poll of Sarpanch election in respect of the Mulkapally Gram Panchayat, Mogullapally Mandal on 31.7.2006. As some of the villagers of the Mulkapally Gram Panchayat, Mogullapally Mandal dated 29.7.2006 had filed a complaint against the Returning Officer Stage II, Sri Dayakar Redely, the Returning Officer Stage II was changed and the Extension Officer (PR & RD), Parkal was appointed was Returning Officer Stage II for conduct of the re-poll of Sarpanch election on 31.7.2006.

16. It is also further stated that re-poll of Sarpanch election in respect of Mulkapally Gram Panchayat, Mogullapally was conducted on 31.7.2006 and the result of the re-poll is as follows:

_______________________________________________________________________S.No. Name of the candidate Symbol No. of votes gained_______________________________________________________________________1. Thoutam Sarojana Door 4872. Nallabheem Vijayalaxmi Gas Stove 3463. Punnam Aruna Harmonium 204. Merugu Rajeshwari Hat 035. Vadija Hamsa Bai Iron Box 08Invalid votes 15_______________________________________________________________________Total votes polled 879_______________________________________________________________________

17. As per the report of the Returning Officer Stage II, after declaration of the result of the Sarpanch, as per programme, the Upa-Sarpanch elections were conducted, duly administering the oath by the attended Members and Sarpanch, and Sri Ashadapu Ravichandrudu had been elected as Upa-Sarpanch unanimously, which is evident from the minutes of the Upa-Sarpanch election conducted by Returning Officer Stage II on 31.7.2006. It is not correct to say that the Sarpanch had not taken oath on 31.7.2006.

18. It is further stated that on 29.7.2006 before declaration of results, the ballot papers along with ballot box had been unauthorisedly taken away and thrown in the nearby well. As per the report of Mandal Parishad Development Officer, on 30.7.2006 the ballot box was taken out from the well and it was found that the ballot papers were soiled, spoiled and were not in a position to count them and it is a fit case for conducting re-poll. Specific stand was taken in Para 7 of the counter-affidavit that it is not correct to say that counting of ballot papers is completed and final result sheet is filled with particulars and announcement with regard to number of votes secured by each candidate had been done. It is a fact that after declaring the results of 10 wards they had counted the votes of Sarpanch contesting candidates and the result of the poll is prepared. It is further stated in Para 8 of the counter-affidavit that after declaration of the result, as per programme, the Upa-Sarpanch election was conducted by the Returning Officer Stage II. Before the election, the attendance of the Members and Sarpanch had been taken up and the oath to all the attended Members and Sarpanch had been administered, as evident from the minutes of the Upa-Sarpanch elections by the Returning Officer Stage II. Therefore, it is not correct to say that the oath is not administered. The day 23.8.2006 is the date fixed for the first meeting of the elected body of the 3rd Ordinary Elections.

19. Section 210 of the A.P. Panchayat Raj Act 1994 (hereinafter, for short, referred to as 'the Act' for the purpose of convenience) dealing with the Electoral Officers and staff etc., deemed to be on deputation, reads as hereunder:

270. Electoral Officers and staff etc., deemed to be on deputation:-(1) Any officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of all elections shall be deemed to be on deputation to the State Election Commissioner for the period during which they are so employed and such officers and staff shall during that period, be subject to the control, superintendence ad discipline of the State Election Commission.

(2) The Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed under this Act, and any police officer designed for the time being by the State Government for the conduct of any elections shall be deemed to be on deputation to the State Election Commission for the period commencing on and from the date of notification calling for such elections and ending with the date of declaration of the results of such elections and such officer shall during that period, be subject to the control, superintendence and discipline of the State Election Commissioner.

20. Section 232 of the Act dealing with power to delegate reads as hereunder:

232. Power to delegate:- The (Andhra Pradesh Election Commissioner for Local Bodies) may, subject of such conditions and restrictions as the Government may, by general or special order, impose, by order in writing delegate to any officer or authority subordinate to him, either generally or as respects any particular matter or class of matters any of his powers under this Act.

21. It is needless to say that Section 233 of the said Act deals with election petitions. It may also be relevant to have a glance at Sections 225-C and 225-D of the Act and the said provisions read as hereunder:

225C. Fresh poll in the case of destruction etc. of ballot boxes:-(1) If at any election,-

(a) any ballot box used at a Polling Station is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with, to such an extent, that the result of the poll at the Polling Station cannot be ascertained; or

(b) any voting machine develops a mechanical failure during the course of the recording of votes; or

(c) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a Polling Station, the Returning Officer shall forthwith report the matter to the State Election Commission.

(2) Thereupon the State Election Commission shall, after taking all material circumstances into account; either-

(a) declare the poll at that Polling Station to be void, appoint a day, and fix the hours, for taking a fresh poll at that Polling Station and notify the day so appointed and the hours so fixed in such manner as it may deem fit; or

(b) if satisfied that the result of a fresh poll at the Polling Station will not, in any way, affect the result of the election or that the mechanical failure of the voting machine or the error or irregularity in procedure is not material, issue such directions to the Returning Officer as it may deem proper for the further conduct and completion of the election.

(3) The provisions of this Act of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.

225D. Destruction, loss, etc., of ballot papers at the time of counting:- (1) If any before the counting of votes is completed any ballot papers used at a Polling Station are unlawfully taken out of the custody of the Returning Officer or any accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of the poll at the Polling Station cannot be ascertained, the Returning Officer shall forthwith report the matter to the State Election Commission.

(2) Thereupon, the State Election Commission shall, after taken all material circumstances into account, either:

(a) direct that the counting of votes shall be stopped, declare the poll at the Polling Station to be void, appoint a day, and fix the hours, for taking a fresh poll at the Polling Station and notify the date so appointed and hours so fixed in such manner as it may deem fit; or

(b) if satisfied that the result of a fresh poll at that Polling Station will not, in any way, affect the result of the election, issue such directions to the Returning Officer as it may deem proper for the resumption and completion of the counting and for the further conduct and completion of the election in relation to which the votes have been counted.

(3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.

22. Further strong reliance was placed on Rules 55, 56, 59 and 60 of the Rules relating to the A.P. Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads) Rule 2006, G.O. Ms. No. 142, Panchayat Raj and Rural Development (Elections) Department, dated 3.5.2006. Submissions at length were made relating to certain contraventions of the Rules and the illegalities committed in relation thereto by the concerned authorities.

23. Strong reliance was placed on Nazir Ahmed v. Emperor AIR 1936 PC 253 Hukum Chand Shyam Lal v. Union of India and Ors. : [1976]2SCR1060 and Dhanajaya Reddy v. State of Karnataka 2001 (4) SCC 9, to substantiate the stand that when statute ordains a particular act to be done in a particular mode, the same to be done in accordance with the provisions of the statute and not beyond thereto. Further strong reliance was placed on the decision of the Division Bench of this Court in K. Ramanjaneyulu v. The Stage-2 Officer, Kotanka Gram Panchayat and Ors. : 1996(1)ALT451 , in this regard. Further, attention of this Court was drawn to yet another decision of the Division Bench in Y. Venkat Reddy v. Court of the District Munsif, Atmakur and Ors. : 1998(4)ALD564 .

24. Sri Prabhakar Rao, the learned Standing Counsel representing State Election Commission further placed strong reliance on A.C. Jose v. Sivan Pillai and Ors. : [1984]3SCR74 , wherein the Apex Court at Para 25 observed:

To sum up, therefore, the legal and constitutional position is as follows:

(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.

25. Reliance also was placed on P. Jagadamba v. State Election Commission, Secunderabad and Ors. : 2006(5)ALD526 , wherein this Court at Para 24 observed as hereunder:

Be that as it may, at a careful scrutiny of the impugned order it appears that the first respondent-State Election Commission was satisfied that inasmuch as the forms were not duly signed and the election results had not been declared and from the report submitted since sufficient material was not available to make such declaration, in view of the lapse of time, the first respondent thought it fit to order re-poll. In the light of the said reasons recorded, though on other grounds the re-poll is not justified, this Court is of the considered opinion that it cannot be said that the impugned action is one without jurisdiction. But, however, this Court again cautions, in the matter of this nature, the first respondent-Election Commission could have been more careful and cautious while ordering re-poll especially keeping in view the peculiar facts in this case.

26. On a perusal of the facts and circumstances and also Sections 210 and 232 of the Act and further, in the light of the stand taken that on 29.7.2006 before the declaration of results, the ballot papers along with ballot box had been taken away and thrown in a nearby well and as per the report of the Mandal Parishad Development Officer the ballot box was taken out of the well and it was found that ballot papers were spoiled and were not in a position to count them and it is a fit case for conducting poll, this Court is of the opinion that in the said facts and circumstances, prima facie, ordering of the re-poll cannot be found fault. It is no doubt true that this Court observed that while ordering re-poll, the State Election Commission or the authorities to be careful and cautious. But however, an element of discretion and margin to be given to the authorities while taking a decision whether in a given situation re-poll to be ordered or not. However, this Court is not inclined to express any further opinion relating to the other factual controversies while disposing of this writ petition, for the reason that it is stated that already the petitioner filed O.P. No. 11 of 2006 on the file of the Junior Civil Judge, Parkal. Hence, liberty is given to the petitioner to raise all these grounds also in the said election petition and agitate the same in accordance with law. Except giving this liberty nothing else can be done at this stage.

27. In the light of the reasons recorded supra, the writ petition being devoid of merits, the same shall stand dismissed, subject to the above observations. No order as to costs.

28. In view of the peculiar facts and circumstances, the Election Tribunal - Junior Civil Judge, Parkal to make an endeavour to expedite the disposal of Election O.P. No. 11 of 2006, at the earliest point of time, preferably within a period of four months from the date of the receipt of a copy of this order.