THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5305 of 2008 Date:21st January, 2011 Between: E.Umadevi ..... Petitioner AND 1. K.Vanaja & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5305 of 2008 ORDER: This Civil Revision Petition is directed against the order, dated 15.10.2008, passed in O.P.No.11 of 2006 on the file of the Election Tribunal-cum-Junior Civil Judge, Mahabubnagar, (for short, ‘the Tribunal’) whereby and whereunder, the Tribunal dismissed the petition filed under Section 233 of the A.P. Panchayat Raj Act, 1994 (for short, ‘the Act’) r/w. Rule 3 of the A.P. Panchayat Rules, 1995. 2. a) The petitioner and the respondents 1 to 5 contested for the post of Sarpanch of Yenugonda village in the Gram Panchayat elections held on 02.08.2006. The 1st respondent has been declared as elected having secured highest number of votes. Accordingly, Form 27 has been issued by the Returning Officer declaring that the 1st respondent has been duly elected as Sarpanch of Yenugonda Gram Panchayat. The petitioner and the respondents 2 to 5 are the unsuccessful candidates in the election. The petitioner challenges the election of the 1st respondent on the grounds:- Firstly, the 1st respondent is ineligible to contest the election, as she is an Anganwadi worker. Secondly, recounting has been done without there being any request. Thirdly, the Returning Officer initially declared the petitioner as elected having secured 1253 votes and subsequently recounted the votes and declared the 1st respondent as elected; and Fourthly, the election officer allowed some persons to caste votes using the identity of the dead persons in favour of the 1st respondent. b) The 1st respondent filed counter refuting the allegations made in the petition. The 1st respondent pleaded in the counter that the Returning Officer conducted the election proceedings in accordance with the Rules. She also pleaded that no re-counting was done after her declaring as elected. c) On behalf of the petitioner, she got herself examined as PW.1 besides examining two more witnesses as PWs.2 and 3 and one document was marked as Ex.P1. On behalf of the 1st respondent, she got herself examined as RW.1. Ch.V.Pavan Kumar, Election Officer, was examined as CW.1. d) The Tribunal formulated the following points for consideration: 1) Whether the petitioner is entitled for re-counting of votes? 2) Whether the petitioner is entitled for declaration that the election of 1st respondent is illegal, null and void as prayed for by her? 3) Whether the petitioner is entitled for declaration that she is the elected candidate as prayed for? 4) To what relief? e) The Tribunal, on hearing the counsel appearing for the parties and on considering the material brought on record, came to the conclusion that the petitioner failed to make out any valid ground for re- counting of the votes and the election of the 1st respondent as Sarpanch of Yenugonda village does not suffer from any illegality or irregularity. With these observations, the Tribunal dismissed the petition filed by the petitioner, by an order, dated 15.10.2008. Hence, this revision by the petitioner. 3. Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. 4. Learned counsel appearing for the petitioner submits that there are various irregularities in counting the ballet papers and therefore, re-counting is required to be ordered. A further submission has been made that some persons using the identity of dead persons caste votes in favour of the 1st respondent and therefore, the election of the 1st respondent is required to be set aside and instead the petitioner being the candidate securing highest number of votes is to be declared as elected. 5. Learned counsel appearing for the 1st respondent supported the order impugned in the revision. 6. The only issue that calls for adjudication in this revision is, whether the petitioner made out any valid ground to interfere with the election of the 1st respondent as Sarpanch of Yenugonda village? 7. The first ground urged by the petitioner is that the election officer, recounted the votes and in the said recounting, topsy-turvyed earlier counting and declared the 1st respondent as elected. PW.1, who is the petitioner, did not claim of his filing any objection with regard to recounting of votes. The witnesses examined on her behalf did not speak of any recounting. Therefore, the ground pressed into service by the petitioner that the 1st respondent has been declared as elected in the recounting falls to the ground. 8. The next ground is that some persons using the identity of dead persons caste votes in favour of the 1st respondent. The petitioner while being examined as PW.1 did not speak of the names of the dead persons, whose identity has been misused. Therefore, the petitioner fails to substantiate this ground also. 9. The last ground is that the 1st respondent is an Anganwadi worker and therefore, she is not eligible to contest to the post of Sarpanch. The same point has been referred before the Tribunal. The Tribunal referred the G.O.Ms.No.7, dated 18.03.1996, which indicates that there is no bar for Anganwadi worker to contest the election. Even otherwise, the 1st respondent took the stand that she resigned to the said post even before the election. No material has been placed by the petitioner that the 1st respondent was working as Anganwadi worker as on the date of the nomination. 10. A feeble attempt has been made that the circumstances warrant recounting of ballet papers. It is well settled that Rule 60 of the A.P. Panchayat Raj (Conduct of Elections) Rules, 2006, mandates a written representation to the Returning Officer for recounting of votes. For better appreciation, I may refer the said Rule, which reads as hereunder: “60. Recount of Votes:- (1) After such announcement has been made under rule 59, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer for recounting of the votes either wholly or in part stating the grounds on which, he demands such recount. (2) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject in wholly if it appears to him to be frivolous or unreasonable. (3) Every decision of the Returning Officer under sub-rule (2) shall be in writing and contain the reasons therefore. (4) If the Returning Officer decides under sub-rule (2) to allow a recount of the votes either wholly or, in part he shall – a) do the recounting in accordance with rule 56. b) Amend the result sheet in Form – XXVI to the extent necessary after such recount; and c) Announce the amendments so made by him. 5) After the total number of votes polled by each candidate has been announced under sub-rule (4), the Returning Officer shall complete and sign the result sheet in Form – XXVI and no application for a further or second recount shall be entertained thereafter.” The issue of mandatory requirement of written representation fell for consideration before the Division Bench of this Court in Y.Venkat Reddy v. The Court of the District Munsif, Atmakur & Ors.[1], wherein it has been held that recounting cannot be ordered except on an application made under Rule 35 of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayat, Mandal Parishads, and Zilla Parishads) Rules, 1995, and Election Commissioner is not competent to issue direction for recounting ignoring Rule 35. 11. In view of the settled proposition of law, the request of the petitioner for recounting of the votes without there being any written application before the Returning Officer cannot be entertained. No other ground is urged. The petitioner failed to make out any valid ground to interfere with the order impugned in the revision. 12. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:21st January, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.5305 of 2008 Date:21st January, 2011 [1] 1998(4) ALD 564 (DB)