IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 511 of 2009 & WAMP No.2677 OF 2009 Between: Vepari Laxminarayana ..... APPELLANT AND 1 Tottadi Venkata Appa Rao and others. .....RESPONDENTS The Court made the following : THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 511 of 2009 & WAMP NO.2677 OF 2009 JUDGMENT: (Per Hon’ble Smt. Justice T.Meena Kumari) This appeal is preferred against the order, dated 30.3.2009 passed by the learned single Judge in W.P.No.5979 of 2009. The 1st respondent herein is the writ petitioner. He filed the above writ petition seeking to quash the order dated 5.3.2009 passed by the Junior Civil Judge, Amadalavalasa in EOP No.5 of 2006. The brief facts of the case are as follows: The writ petitioner and the appellant contested in the elections held for Burja Gram Panchayat in July, 2006, for the Office of Sarpanch and the writ petitioner was declared as elected. On that, the appellant filed EOP No.5 of 2006 challenging the election of the writ petitioner on the ground that serious discrepancies existed as to the counting of votes. The Tribunal directed recounting of votes. Aggrieved by the same, the writ petitioner filed the above writ petition. The learned single Judge having observed that the returning officer filed a counter stating that 18 postal ballots were received, but he did not place any material before the Tribunal to substantiate that contention and that it is settled principle of law that recounting cannot be ordered as a matter of course and that for undertaking recounting, it is necessary to summon the ballot boxes and other election material and a drastic step like recounting cannot rest upon the omission of the parties to take necessary precautions, allowed the writ petition. The learned single Judge also observed that it is open to the writ petitioner to make an application to the Tribunal to summon the relevant record from the 3rd respondent and in particular, the return in Form No.26 prescribed under the relevant rules and that it is open to the parties to adduce evidence, touching on these aspects and the entire exercise, in this regard, shall be completed within a period of six weeks from the date of receipt of a copy of the order and that the Tribunal shall pass fresh order after taking into account the evidence that may be adduced by the parties. Having aggrieved by the same, the present appeal has been filed by the appellant. Heard the learned Counsel and perused the material available on record. It is pertinent to note that on 2.9.2009 a Division Bench of this Court passed the following order in WPMP No.2296 of 2009: “Having regard to the checkered events and having regard to the orders passed, we are of the view that the merits any of the objections on either side need not be gone into. It is suffice to observe that recounting is concerned the said exercise should be done in the presence of the Returning Officer/3rd respondent. The 3rd respondent is directed to be present at the time of the said exercise of recounting after due service of notice to him showing the date and time.” Now, the writ petitioner filed WAMP No.2677 of 2009 seeking a direction to the Election Tribunal to examine the 3rd respondent-Election Officer or any other persons as may be necessary as court witnesses and submit them for cross- examination of both parties and to submit a detailed report with all the concerned records. The learned Counsel for the appellant submitted that in pursuance of the orders of the Division Bench of this Court dated 2.9.2009, recounting has been done on 19.9.2009. In view of the submission of the learned Counsel for the appellant that the recounting was done pursuant to the orders of this Court and in view of the facts and circumstances of the case, we feel that nothing survives in this appeal for adjudication. But however, in view of the controversy involved and in view of the fact that the main O.P. is pending before the Election Tribunal/Junior Civil Judge, Amadalavalasa, we feel that it would suffice if a direction is issued to the writ petitioner to make an application before the Election Tribunal, if he is so aggrieved of recounting, within a period of three weeks from today. On such application being filed, the same shall be disposed of, in accordance with law. The Election Tribunal is also directed to dispose of the O.P. as well as the applications filed, if any, together, within a period of three months from the date of receipt of a copy of the order. Subject to the above directions, the writ appeal and WAMP No.2677 of 2009 are disposed of. No order as to costs. _________________________ Justice T.Meena Kumari ____________________ Justice Sanjay Kumar Date: 30th October, 2009 nn. THE HON'BLE SMT JUSTICE T.MEENA KUMARI & THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 511 of 2009 & WAMP NO.2677 OF 2009 (Judgment of the Division Bench delivered by the Hon’ble Smt Justice T.Meena Kumari) 30/10/2009