THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No. 1653 of 2008 DATE: 21st July, 2011 Between: Shaik Nabi Saheb … Appellant / Respondent No.1 And: Sri Ravulapalli Pullaiah and 5 others … Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No. 1653 of 2008 JUDGMENT: (per Hon’ble Sri Justice. P. Durga Prasad) This appeal under Clause 15 of Letter Patent is directed against the judgment in W.P.No.16487 of 2008 of the learned Single Judge, dated 07.11.2008. The appellant is the respondent No.1 and the respondent No.1 is the writ petitioner, in the writ petition. The writ petition was filed seeking for issuance of writ, order or direction in the nature of Writ of Certiorari, calling for records pertaining to O.P.No.3 of 2006 dated 21.07.2008 on the file of Election Tribunal, Darsi, Prakasam District. The writ petitioner and the respondent No.1 have contested in the elections in the Gram Panchayat of Kurichedu Village, Prakasam District, and the elections were held on 02.08.2006 and the counting was also commenced immediately after the election and the writ petitioner was declared as elected. The 1st respondent has filed an election petition O.P.No.3 of 2006 before the Junior Civil Judge-cum- Election Tribunal, Darsi, alleging certain irregularities in counting the votes by the Respondent No.6 who was the Assistant Election Authority. The writ petitioner and other respondents have contested the matter and the said election O.P. was disposed of on 21.07.2008 by the Election Tribunal, Darsi, by partly allowing the petition holding that there is no necessity for recounting of the votes, but set aside the election of the writ petitioner, thereby declared the respondent No.1 herein as elected Sarpanch of Kurichedu Gram Panchayat. Aggrieved by the said order, the writ petitioner has filed the present writ petition. The respondent No.1 herein, the petitioner in the election O.P.No.3 of 2006, has pleaded that the 2nd respondent herein who is the District Election authority for Prakasam District, issued notification under the provisions of Panchayat Raj Act and relevant G.Os., for election of the ward members and Sarpanch of Kurichedu Gram Panchayat. The Election Schedule is as follows:- (i) Receipt of Nominations - 15.07.2006 to 19.07.2006 (both days inclusive) (ii) Scrutiny of Nominations - 20.07.2006 (iii) Time for withdrawal of Nominations - 21.07.2006 to 23.07.2006 (both days inclusive) In case of contest, the election is to be conducted on 02.08.2006 from 7.00 A.M. to 1.00 P.M. and counting of votes from 2.00 P.M. till completion, irrespective of time. The petitioner has filed his nomination along with respondents 4 and 5 i.e., the writ petitioner and another. The election was held on 02.08.2006 from 7.00 A.M. to 1.00 P.M. The total number of votes in Kurichedu Gram Panchayat are 5317. The total number of votes polled are 4546 plus postal ballots 28. The writ petitioner and respondent No.1 filed nomination along with respondent No.5 herein for the post of Sarpanch of Kurichedu Gram Panchayat. At the time of counting of votes, the respondent No.1 herein has appointed Shaik Hassan Miya and Avula Venkata Reddy as his counting agents and they along with respondent No.1 herein were present through out the counting of votes. Similarly, the writ petitioner has appointed Meruva Pitchi Reddy and Meruva Subba Reddy as his counting agents and they were also present at the time of counting. The 6th respondent herein took up the counting of votes from 3 P.M. onwards of the ward members, and by the time of completion of counting of the votes of ward members it was about 11.00 P.M. on 02.08.2006. After interval of one hour, the 6th respondent has taken up counting of the votes of Sarpanch at 12.30 A.M., i.e. early hours of 03.08.2006. After sorting of the votes, the total number of votes polled were 4546, two votes were found missing. When questioned, the 6th respondent stated that he would verify and decide about the missing of votes after completion of counting. At about 5.00 A.M., the 6th respondent has announced that the respondent No.1 herein secured 2133 votes and the writ petitioner has secured 2124 votes and declared 169 votes as invalid. When the respondent No.1 and his agents insisted for declaring him as duly elected Sarpanch of the Gram Panchayat after securing more votes than the writ petitioner, at that stage, 6th respondent informed that he has received 28 ballot papers and started counting them. The respondent No.1 and his counting agents have objected taking the postal ballets into consideration on the ground that they were not properly received by him and some persons who exercised their franchise were not on election duty and they were not duly certified by the competent authority. The respondent No.1 has further pleaded that a voter on election duty who wishes to vote by post at an election shall send an application in Form No.13 to the Election Officer so as to reach him at least 7 days or such shorter period as the Election Officer may allow before the date of poll, and if the Election Officer satisfies that the applicant is a voter on election duty, he shall issue a Postal Ballot paper to him. The Election Officer shall mark PB against his name in the marked copy of the electoral roll to indicate that the postal ballot paper has been issued to him. If such a voter being a polling officer or a polling clerk or other public servant on election duty in the Gram Panchayat in which he is a voter, wishes to vote in person at the election and not by postal ballot, he shall send an application in Form No.13(A) to the Election Officer so as to reach him at least 4 days or such shorter period as the Election Officer may allow before the date of polling. The Election Officer shall issue Election Duty Certificate in Form No.13(B) and mark E.D.C. against his name in the marked copy of the Electoral Roll to indicate such an election duty certificate was given to him. The respondent No.1 has further pleaded that 28 postal ballot papers were manipulated by Sananpudi Ravi who is working as MRP in MDO’s Office, Kurichedu by using his official position. The postal ballots produced were not properly certified by the competent authority and as such they are invalidated, and the 6th respondent should not have taken them into consideration. The respondent No.1 has further pleaded that the 6th respondent has succumbed to the influence of ruling party MLA and in order to facilitate the election of the petitioner at any cost, took them into consideration in spite of the objection raised by the respondent No.1 and his counting agents. The 6th respondent, after counting the postal ballets, announced that the respondent No.1 secured 3 postal ballots and the writ petitioner has secured 25 postal ballots, and thus the writ petitioner has secured 2149 votes and the respondent No.1 has secured 2136 votes. Immediately after announcing the same, the respondent No.1’s counting agent Shaik Hassan Miya has submitted an application for recounting of the Sarpanch votes as the votes in favour of the respondent No.1 were wrongly invalidated and about 60 invalid votes were validated in favour of the writ petitioner and also questioned about the missing of 2 votes, and about the counting of the postal ballots. The 6th respondent has refused recounting and the 6th respondent has announced the writ petitioner as elected Sarpanch of Kurichedu Gram Panchayat by a majority of 13 votes and went away. Immediately the petitioner has submitted a representation to the 2nd respondent and also to the Election Commissioner, Hyderabad, bringing to their notice the irregularities committed by the 6th respondent in the counting of votes and illegally accepting 28 postal ballots which are not in proper form. The State Election Commission has given a reply on 03.08.2006 forwarding the same to the 1st respondent for taking necessary action, but the 1st respondent did not take any action on his application. If 28 postal ballots were to be excluded, the respondent No.1 ought to have been declared as elected for the post of Sarpanch of Kurichedu Gram Panchayat with a majority of 9 votes even ignoring invalidation of 50 votes polled in favour of the respondent No.1. Even though the election process was continued till 5.00 A.M. on 03.08.2006, the 6th respondent has given a declaration to the writ petitioner with the ante date i.e. 02.08.2006. The writ petitioner has filed his counter in the said O.P., pleading that the election for the post of Sarpanch and ward members in Kurichedu Gram Panchayat took place as scheduled and the voters exercised their franchise in the election either by direct polling or by postal ballot, and the total number of votes polled came to 4572. The 6th respondent has received the postal ballots before counting of the votes and denied the allegation that the 6th respondent brought the postal ballots after counting of Sarpanch votes polled in person, and according to him, the counting of the votes polled in favour of ward members and Sarpanch were commenced on 03.08.2006, and denied the allegation that the counting of votes of Sarpanch started at 12.30 A.M. on 03.08.2006, and also denied about the missing of 2 votes and also announcing the election result at 5.00 P.M. on 03.08.2006. The factum of issuing postal ballots means that the persons who exercise their franchise through postal ballots were entitled to exercise their franchise through such process. If the postal ballots were not issued as per the rules, the same has to be questioned before the appropriate authority. He denied that the 28 postal ballot papers were manipulated by Sanampudi Ravi and they were not properly certified and they are invalidated. He also denied the allegation that the 6th respondent succumbed to the influence of MLA belonging to the ruling party to facilitate the election of the writ petitioner. He also denied other allegations made in the petition and pleaded that he also took charge as Sarpanch of Kurichedu Gram Panchayat and he cannot be restrained from discharge of his duties and further pleaded that this petition is a frivolous petition and is liable to be dismissed with exemplary costs. The respondent No.3 herein who is the Assistant Election Authority for Kurichedu Gram Panchayat has filed counter and the same was adopted by the respondents 2, 3 and 6. The respondent No.3, has pleaded that the respondent has issued 28 ballot papers to the persons who applied claiming that they are on election duty both to the post of ward members and also to the post of Sarpanch. The respondent without verifying the record could not say that the Kondepa Halda Nightingale d/o Salmon Raju, Kondamadu Basavaraju d/o Subbarao, Jalda Bayamma w/o Durgaiah and Sanampudi Ravi were not on election duty on the date of polling. After the above said persons were assigned with election duty, the respondent might have issued postal ballets to them and later they might have been excluded from election duty and they ought to have returned the postal ballots to the respondent, but by oversight the respondent have not taken the postal ballots given to them. Due to oversight, some of the particulars to be mentioned in the postal ballots might have been overlooked. But by certain omissions in the procedure mentioned in the issue of postal ballots cannot invalidate the election. He also denied that the 28 ballot papers were manipulated by Sanampudi Ravi who is working as MRP in the office of the respondent i.e. MDO’s office, Kurichedu. According to him, the counting of the votes was done strictly in accordance with the procedure. He admitted that the petitioner did not sign at the time of counting of 28 postal ballots disputing the same, pleading that they are not validly issued and as such they are invalid and cannot be counted in favour of any candidate. But the election officer i.e. the 6th respondent counted the same and declared the result. He admitted that 2 votes were found missing could not be traced in spite of diligent searching made by the 6th respondent. He could not say to whom those 2 missing ballot papers were polled. The 6th respondent has felt that the counting was done in a proper manner and did not feel it necessary to order for recounting, even on the oral request that has been made by the respondent No.1 herein, and no written request was made by him in that regard. The 6th respondent did not commit any irregularity in conducting the election of the Sarpanch, Kurichedu Gram Panchayat. Hence, the petition is liable to be dismissed. The 5th respondent did not file any counter. The Junior Civil Judge-cum-Election Tribunal, Darsi has framed following points for determination: (i) Whether 6th respondent i.e., Election Officer has committed illegalities in counting of votes of Sarpanch of Kurichedu Gram Panchayat elections? (ii) Whether 28 ballot papers were not properly issued and there is invalid as alleged by petitioner? (iii) Whether 6th respondent has committed illegality not accepting request of Petitioner for recount of all Sarpanch votes including invalid votes> (iv) Whether 6th respondent has validate 60 invalid votes in favour of 4th respondent? (v) Whether 6th respondent has illegally invalidated 15 valid votes polled in favour of the petitioner? (vi) Whether petitioner is entitled to seek for recount all Sarpanch including Votes? (vii) Whether the 28 postal ballets are to be invalidated as alleged by the petitioner? (viii) Whether election of 4th respondent as Sarpanch Kurichedu Gram Panchayat is liable for set-aside? (ix) Whether petitioner is entitled to be declared as Sarpanch of Kurichedu Gram Panchayat? (x) To what relief? During the course of enquiry before the Election Tribunal, the respondent No.1 herein examined himself as PW.1 and examined one Shaik Hassan Miya as PW.2 and Avula Venkat Reddy as PW.3 and got marked Exs.A1 to A4. The writ petitioner examined himself as RW.1 and M.Subba Reddy was examined as RW.2 and the 6th respondent examined himself as RW.3. Ex.R1 was marked on behalf of the respondents. The said Junior Civil Judge, by taking into consideration the said oral and documentary evidence, held that there is no necessity for ordering of recounting of votes polled for the post of Sarpanch, Kurichedu Gram Panchayat, but allowed the petition partly, setting aside the election of the writ petitioner and declaring the respondent No.1 herein as elected Sarpanch, Kurichedu Gram Panchayat. Aggrieved by the said order of the Election Tribunal, the writ petitioner has filed the writ petition and the learned single Judge allowed the said writ petition by the impugned order dated 07.11.2008. Sri K.R. Prabhakar, advocate appearing for the appellant, had pleaded that the 6th respondent has committed irregularities in counting the ballots by taking into consideration the invalid postal ballots and the Election Tribunal has rightly come to the conclusion that the postal ballots are invalid as they are not in accordance with the prescribed rules under A.P. Panchayat Raj (Conduct of Election) Rules, 2006, thereby set aside the election of the respondent No.1 herein. The learned counsel has further pleaded that the learned single Judge, without considering the validity of the postal ballots and simply because the recounting was not ordered by the Election Tribunal, set aside the order of the Election Tribunal. Sri. D. Prakash Reddy, learned Senior Counsel appearing for the respondent No.1, has pleaded that the Election Tribunal ought not to have set aside the election of the respondent No.1 without ordering for recounting of the votes, and he further pleaded that the prayer of the appellant before the Election Tribunal is only for recounting of the votes and when such a relief was rejected by the Tribunal, the consequent relief of setting aside of the election of the respondent No.1 ought not to have been granted. The learned Senior Counsel has further pleaded that the learned single Judge has rightly considered the pleadings and reliefs sought for by the appellant herein and set aside the order of the Election Tribunal. The appellant herein who is the election petitioner, has prayed for ordering of recounting of votes polled for the post of Sarpanch, Kurichedu Gram Panchayat including 28 postal ballot votes, and to declare the petitioner therein as duly elected Sarpanch of Kurichedu Gram Panchayat, after recounting of votes and set aside the election of the 4th respondent as duly elected Sarpanch of Kurichedu Gram Panchayat. The Election Tribunal has considered the respective pleadings of the parties and based on the material placed before it, came to the conclusion that the prayer of the petitioner with regard to the order of recounting of all votes polled for the post of Sarpanch, Kurichedu Gram Panchayat, including 28 postal ballots is rejected as not necessary. The prayer with regard to setting aside the election of 4th respondent as Sarpanch of Kurichedu Gram Panchayat was allowed and the petitioner therein was declared as duly elected Sarpanch of Kurichedu Gram Panchayat and the respondent Nos.1 to 3 and respondent No.6 therein were directed to cancel election declaration given to respondent No.4 and respondent Nos. 1 to 3 and respondent No.6 were directed to issue a fresh declaration to the petitioner as duly elected to the post of Sarpanch, Kurichedu Gram Panchayat. The respondent Nos.1 to 3 and respondent No.6 were also directed to take necessary steps i.e., conducting of swearing etc. to the petitioner as Sarpanch of Kurichedu Gram Panchayat as he is duly declared as elected to the post of Sarpanch of Kurichedu Gram Panchayat. Thus, the Election Tribunal has rejected the prayer of recounting of votes including the 28 postal ballot papers, but set aside the election of the respondent No.1 herein on the ground that there were some irregularities in accepting the postal ballots. The appellant herein has not prayed for excluding the 28 postal ballots from counting, but only asked for recounting of votes including 28 postal ballots. In the election petition, he has pleaded that the 28 postal ballot papers were manipulated by Sanampudi Ravi who is working as MRP in MDO’s Office, Kurichedu, using his official position and the postal ballots produced were not properly certified by the competent authority and as such they are invalid and the 6th respondent should not have taken them into consideration. In the subsequent paras it is pleaded that if 28 postal ballot papers which are not in proper form are to be eliminated, the petitioner would have won the election with a majority of 9 votes. Therefore, the prayer made in the petition is inconsistent with the pleadings in the election petition. Moreover, the appellant has pleaded in the election petition that the 6th respondent has wrongly invalidated the votes and about 60 invalid votes have been validated in favour of the respondent No.1 herein and the 6th respondent has not accounted for the 2 missing votes polled; and the election agent of the appellant has pleaded for recounting of the votes, but has not questioned about the validity of the 28 postal ballots. Therefore, when the Election Tribunal has come to the conclusion that the appellant is not entitled for recounting of the votes on the material placed before it, it ought not to have decided the validity of 28 postal ballots. The appellant has not sought for setting aside the election of the respondent No.1 herein not on the ground of 28 invalid postal ballots, but his specific case is that there are irregularities committed by the 6th respondent in counting of the votes and thereby sought for recounting of the votes including 28 postal ballots. Therefore, when the prayer of the writ appellant was rejected by the Election Tribunal, the Election Tribunal ought not to have set aside the election of the respondent No.1. If the Election Tribunal has come to the conclusion that there are irregularities committed in counting of the votes including 28 postal ballots, it ought to have ordered for recounting. The learned single Judge has rightly come to the conclusion that as the prayer in the election petition is not granted, it was not at all competent for the Tribunal to decide on the validity of 28 postal ballots. Thus, the said finding of the learned single Judge does not warrant any interference in this appeal. In the result, the writ appeal is dismissed and there shall be no order as to costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD 21st July, 2011 KSM