HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.17727 of 2009 Date: November 06, 2009 Between: Koppara China Appala Naidu. …Petitioner And 1. The Returning officer, Phase-II Panchayat Elections, Koppara Gram Panchayat, Vangara Mandal, Srikakulam District and 4 others. …Respondents * * * ORDER: This Court ordered notice before admission on 25.8.2009 and granted interim stay initially for a period of two weeks and the same is being extended from time to time. Counter-affidavit of R-4 was filed. 2. Heard Sri D.V. Nagarjuna Babu, learned counsel representing writ petitioner, the learned Government Pleader for Panchayat Raj, Sri V.V. Prabhakara Rao and Sri Taddi Nageswara Rao representing respondents. 3. Sri D.V. Nagarjuna Babu, the learned counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that in the facts and circumstances of the case, especially, even if the pleadings of the parties to be taken into consideration and the evidence available on record if carefully examined, the order made by the Junior Civil Judge, Palakonda-Election Tribunal (hereinafter in short referred to as “Tribunal” for the purpose of convenience) cannot be sustained. The learned counsel also pointed out to the chronology of events and had taken this Court through the respective stands taken by the parties in their pleadings and further pointed out to the findings which had been recorded by the Tribunal and would maintain that in the facts and circumstances of the case the Tribunal totally erred in allowing the application partly for recounting of the rejected votes. The counsel also relied on certain decisions to substantiate his submissions. 4. The learned Government Pleader for Panchayat Raj and Sri V.V. Prabhakara Rao had pointed out relevant portions of the findings recorded by the Tribunal and made certain submissions. 5. Sri Taddi Nageswara Rao, learned counsel representing 4th respondent had taken this Court through the contents of the counter- affidavit filed by the 4th respondent and further had pointed out to relevant portion of the pleading and would maintain that in the light of the same it cannot be said that the Tribunal erred in making the order under challenge. The learned counsel also had taken this Court through the findings which had been recorded by the Tribunal and further would maintain that the decisions relied upon by the counsel representing the writ petitioner being distinguishable and even otherwise in the light of the binding decisions of the Apex Court and also the views expressed by this Court as well, the order under challenge cannot be found fault, especially, in the light of the limitations imposed on the writ Court while exercising Certiorari jurisdiction. The learned counsel placed strong reliance on several decisions to substantiate his submissions. 6. Heard the counsel, perused the order under challenge and also the material relied on by the parties and the decisions relied on by the counsel on record. 7. The writ petition is filed for a writ of Certiorari or any other appropriate writ, order or direction calling for the records relating to the order dated 26.6.2009 in EOP.No.3 of 2006 on the file of the Court of Junior Civil Judge, Palakonda/Election Tribunal constituted under the A.P. Panchayat Raj Act for Elections to Gram Panchayat 2006, examine and set aside the same, as illegal, arbitrary and unjust and pass such other suitable orders. 8. It is the case of Koppara China Appala Naidu, the writ petitioner, that he contested for the post of Sarpanch of Koppara Gram Panchayat, Vangara Mandal, Srikakulam District, in 2006 Panchayat elections, held on 06.8.2006 and he was declared elected. In all, there are 2385 votes in Koppara Gram Panchayat, out of which 1994 votes were polled and out of the polled votes, 84 votes were invalid. The petitioner secured 956 votes and whereas respondent No.4, the unsuccessful candidate, secured 954 votes. The petitioner was allotted “Door” symbol, whereas 4th respondent was allotted “Gas Stove” symbol in the election. Counting process was completed by 6.00 p.m. on 06.8.2006. 9. It is also the case of the writ petitioner that at the time of counting neither the 4th respondent nor his election agent or counting agent had made any application in writing to the first respondent-Election Officer as regards any irregularity or illegality committed in the counting process. Despite the same, the 4th respondent filed Election Petition in EOP No.3 of 2006 on the file of the Court of Junior Civil Judge, Palakonda/Election Tribunal, alleging that in the counting process, the first respondent committed irregularities and on the said premise the 4th respondent sought for declaration of petitioner elections as illegal. The petitioner filed a detailed counter denying all the allegations. However, on an erroneous view of the matter, the Tribunal passed orders dated 26.6.2009 which is impugned in the present writ petition. 10. It is also the case of the writ petitioner that the Tribunal ordered for recounting in a casual manner without there being any proper allegation and substantiation of evidence to establish even prima facie case of high degree of probabilities warranting recounting of votes. The Tribunal ought to have seen that failure to submit an application in writing seeking recounting of votes is vital to the case of the election petitioner-4th respondent and in that view of the matter ought to have dismissed the election petition. The alleged representation submitted by the 4th respondent to the 3rd respondent is a sheer outcome of an after thought to harass the petitioner, as the 4th respondent got defeated in the elections. 11. Further it is stated that the Tribunal ordered for recounting of invalid votes by placing reliance on the order of this Court (reported in 2008 (6) ALT 464) on the premise that the petitioner won the election by a thin margin. It is also stated that on the date of recounting, the 4th respondent or his agent never raised their little fingers objecting to the counting process. In spite of the same, the Tribunal erroneously ordered recounting of invalid votes. 12. It is also stated that apart from the above, in the alleged representations, respondent No.4 mentioned the number of rejected votes as 80 and whereas in the election petition, the case of the 4th respondent is that the number of invalid votes are 84. Thus, specific stand had been taken that the Tribunal erred in ordering recounting of invalid votes and further specific stand had been taken that the 4th respondent had not made out any case for recounting of invalid votes. 13. In the counter-affidavit filed by the 4th respondent specific stand had been taken that there are serious irregularities and illegalities in the counting and preparation of result sheet in Form XXVI and the announcement of particulars and the same had been in violation of Rules 59 and 60 of the A.P. Panchayat Raj (Conduct of Elections) Rules, 2006. The relevant Rules and representations also had been referred to and certain decisions also had been relied on in the said counter-affidavit. 14. The Tribunal, after referring to the respective pleadings of the parties, having formulated the point for determination at para 7, recorded reasons commencing from paras 8 to 12 and ultimately came to the conclusion that if the difference of votes are very very slender, the prayer of the petitioner cannot be rejected and, hence, the Tribunal came to the conclusion that it is necessary to recount the rejected votes polled on 06.8.2006 for the post of Sarpanch of Koppara Gram Panchayat, Vangara Mandal, Srikakulam District. Further, it was observed that after recounting the rejected votes only, it will be decided whether the second respondent committed irregularities or not and whether the election of the first respondent is illegal and it can be set aside. Thus, the petition was partly allowed for recounting of rejected votes. 15. No doubt, certain further directions also had been given to the Government that the election material produced by the MDO on 05.02.2008 which was kept in Palakonda P.S. for safe custody, the SHO, Palakonda, to submit the election material which was given for safe custody and thus the matter was directed to be called on 29.8.2009. 16. This Court had gone through the respective pleadings of the parties and also the evidence available on record. The 4th respondent, who is the petitioner in E.O.P.No.3 of 2006 on the file of the Tribunal, in the pleading specified that her election counting agent stated to her that the bundles of 50 votes each of valid votes polled in her favour and bundled by placing one valid vote in favour the first respondent therein on the top row of each of such bundle and mixed up with the bundles of the first respondent therein. Thus, the counting personnel had mixed up the valid votes polled in her favour with that of the valid votes polled in favour of the first respondent therein and that decreased the number of votes polled in her favour and increased the valid votes polled in favour of the first respondent therein. The second respondent therein had also rejected some valid votes polled in favour of the petitioner therein and shown them as rejected votes and declared the first respondent got only two more votes than that of the petitioner therein. 17. This Court in Y. Gopalakrishna v. Balneedi Anjaneyulu and others[1] held at paras 33, 37 and 38 as hereunder: “On careful appreciation of the oral and documentary evidence available on record, the following are certain of the essentials to be taken note of. (1) The difference of votes in between the contesting candidates, the revision petitioner, the unsuccessful candidate; and first respondent, the successful candidate, is only two votes. (2) The fact that the petitioner made two applications Exs.A-4 and A-5 requesting for recounting also is not in serious dispute though the timings appear to be in some controversy. There is no doubt some controversy that one application was made after the declaration of the result. (3) The fact that P. W. 1 made an admission to the effect that he made a request for recounting of invalid votes also is an important aspect. But, equally it is pertinent to note that such request cannot be spelt out from the contents of either Ex. A-4 or Ex. A-5. The fact that no specific relief to declare the petitioner as duly elected as such had been prayed for also is not in controversy. It is not in serious controversy that either on Ex. A- 4 or Ex. A-5 any intelligible reasons had been recorded by the Election Officer, R-5, who was examined as R. W. 4. It is not the case of either of the parties that the contents of these applications would spell out for a demand or request for counting of the invalid votes. It is no doubt true that P. W. 1 while deposing made such admission and on the strength of such admissions, which had been pointed out by sri Meherchand Noori, elaborate submissions had been made. When at the earliest point of time a request had been made praying for counting of votes, the same cannot be taken as counting of invalid votes only and by taking advantage of an alleged admission made by P. W. 1 in the course of cross- examination, the statutory mandate or the obligation cast on the officer cannot be watered down. In fact, similar view had been expressed by the learned Judge of this Court in the decision in P. Prabhavathi v. Election Tribunal-cum-Junior Civil Judge, Mahabubnagar District and another (27 supra ). It is also pertinent to note that in the present matter no relief of declaration to declare him as duly elected had been prayed for. Even if the guidelines specified by the Apex Court if to be carefully examined and especially when the difference of votes is very very slender, normally when sufficient material is placed before the court, it would be just and proper on the part of the Tribunal to lean towards ordering of recounting of votes instead of negativing such relief. This Court is not inclined to lay down the broad proposition to the effect that when the margin is slender or trivial, necessarily in each and every matter the recounting to be ordered by the Tribunal, but however, that factor also may have to be taken into consideration while appreciating the other evidence available on record. Hence, this Court is satisfied that the Tribunal had not adopted the correct approach in appreciating the oral and documentary evidence available on record. It is made clear that while deciding the election dispute, the rigor of the statutory provisions cannot be lost sight of. In the light of the same the impugned order is hereby set aside and the matter is remanded to the Tribunal below to give opportunity to both the parties to substantiate their contentions by adducing further evidence if the parties choose to do so and record appropriate findings in the light of the views expressed by this Court supra.” 18. No doubt strong reliance was placed on the decision of the Division Bench in Peddireddy Venkata Satyanarayana Murthy @ Chittibabu v. Election Tribunal-cum-Principal Junior Civil Judge, Yelamanchili, Visakhapatnam District and others[2] wherein the Division Bench at paras 36 and 37 observed as hereunder. “The Hon’ble Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai (AIR 1964 SC 1249) observed as follows: “9. There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground the there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re- count. It is in the light of the provisions of S.83 (1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application inspection must be considered.” As far as the allegations i.e., delay in commencement of counting at about 4-00 p.m. or that counting personnel demanded night meals and additional DA or that the counting recommenced after about midnight etc., are concerned, we do not consider how these aspects cause prejudice to the contestants. The second respondent did not make the specific allegations with all particulars in the petition. Moreover P.W.1 admitted that if by 1-00 p.m. voters are present in the premises they will be allowed to vote. He has also admitted that he did not raise any objection for the delay in commencement of voting. As far as the above issues are concerned, the situation would be same for all the contesting candidates and if the counting process commenced late, it is for all candidates, but not for one candidate. Similarly, the allegations that there was rain or failure of electricity or storm etc., are concerned, we feel that they do not require any serious consideration because the situation would be same for all the candidates. As far as the allegation of misplacing or mixing the bundles of one candidate into the bundles of other candidates is concerned, this allegation also lacks particulars such as at which table and in which round the irregularities were noticed. The particulars of the agents, who pointed out these irregularities, and the names of the election officers involved in the irregularities have not been mentioned. Therefore, even these allegations appear to be general and vague in nature and it is very clear that neither the particulars in relation to the alleged irregularities nor the names of the counting agents or staff involved find place in the averments of the petition or in the evidence adduced by the second respondent. The natural conduct of the second respondent and his agents, in all probabilities would be to make vehement protest as and when they noticed the irregularities. Normally further counting will not be continued unless the contesting candidates and their agents agree for the same. It is not the case of the second respondent and his agents that they boycotted the further counting or that they made any complaint to the superior authorities or that they gave a written complaint with all particulars to the elections officers. Admittedly, no written application was given for recounting of votes. If specific allegations are made and particulars are given, the authorities would have recounted the votes of that table or that round regarding which specific demand is made. Recount of votes need not be ordered in a case where specific overt acts with all the particulars of the round and the tables at which the irregularities are noticed have not been given, particularly when entire process is completed without any written objections. Therefore, we are of the view that the second respondent failed to prove the allegations made by him. In Smt. Ram Rati v. Saroj Devi and others (1997 (6) Supreme 6 = 1997 (4) ALT 3 (D.N.)) while dealing with election petition under M.P. Panchayat Elections Rules, 1994 and Rule 76 of the said Rules, it was held that “the appellant was duly elected. Election petition by respondent that election was not properly conducted and an application for recounting was made, but was not done. The Tribunal directed recounting which was affirmed by High Court the Rule mandates upon candidate or his agent to make an application in writing giving reasons in support thereof seeking recounting. No such application had been made on the date of declaration of results. The Tribunal committed manifest error in directing recounting. In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. If it is not done, then the Tribunal or the court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition precedent is that an application in writing should be made and the Returning Officer should pass an order with reasons in support thereof either to recall the order of otherwise, the writing and the fact that the officer had not passed any order in writing would indicate that the respondent had not made any application. Obviously, some subsequent manipulation, as contended by the appellant, would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the Tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting. In view of the fact that the rule itself provides that, as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before the court indicate that no such application had made on the date of the declaration of the result. The allegation that an application having been made, would be an after thought. The Tribunal, therefore, committed manifest error in directing recount.” 19. The decision in Smt. Ram Rati v. Saroj Devi and others[3] had been referred to and relied upon by the Division Bench. No doubt several other decisions also had been referred to. 20. The decision of Smt. Ram Rati v. Saroj Devi and others (3 supra) had been overruled in Sohan Lal v. Babu Gandhi and others[4]. It is no doubt true that the Division Bench relied on the other decisions as well and made observations aforesaid. 21. Reliance also was placed on the decision in Jayanta Samal v. Kulamani Behera and another[5] wherein it was held that the order of re-count passed by the Tribunal seeking inter alia recounting of votes, the Tribunal passing an order of re-count which, though not very elaborate, reflecting application of mind by the Tribunal to the evidence on record and a conclusion reached on the basis thereof that a case for re-counting had been made out, the Revisional Court upholding the said order in such circumstances, the orders of the Tribunal and the Revisional Court not to be interfered with in exercise of the limited jurisdiction under Article 227 of the Constitution of India. 22. Further reliance also was placed on the under noted decisions. (1) Gursewak Singh v. Avtar Singh and others[6]; (2) Sadhu Singh v. Darshan Singh and another[7]; (3) Shyam Bai, Ram Pratap v. State of Madhya Pradesh, through Secretary, Panchayat and Rural Development[8]; (4) Chandrika Prasad Yadav v. State of Bihar and others[9]; 23. Further reliance was placed on the decision of the Full Bench i n M/s. Ushodaya Enterprises Limited, Visakhapatnam v. Commissioner of Commercial Taxes, A.P., Hyderabad[10] wherein at para 24 it was observed as hereunder. “Without making inroads into the settled principles governing the binding force of a decision of the Supreme Court either by virtue of its precedential value or the mandate of Article 141, we can safely evolve the principle that in a case of conflict arising from the decisions of co-equal benches of the Supreme Court, the High Court is free to disregard the decision which is based on an obvious mistake of fact or the one which purports to follow the ratio of an earlier decision though such ratio is found to be non-existent. The High Court can legitimately decline to follow such decision and follow the earlier decision which is backed by reasoning- whether it is acceptable to the High Court or not, and which is free from any such apparent flaw. We are unable to pursuade ourselves to subscribe to the view that the later decision should be automatically followed despite the fact that it rests on a conclusion based on an erroneous impression that an earlier decision took a particular view which in fact it has not taken. By doing so, we are neither questioning the hierarchical superiority of the Supreme Court nor the higher wisdom of the Hon'ble Judges of the Supreme Court. We are preferring one decision to the other - both rendered by Division Benches, for obvious reasons so as to avoid an incongruity leading to travesty of justice.” 24. Further reliance was placed on the decision of the Division Bench in Jonnalagadda Samrajyam and others v. Registrar, The Special Court constituted under A.P. Land Grabbing (Prohibition) Act, 1982, Hyderabad and another[11]. 25. Strong reliance also was placed on the decision in Sawarn Singh and another v. State of Punjab and others[12] wherein at paras 12 and 13 the Apex Court observed as hereunder. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that Certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of Certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Art. 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra), "this limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation