THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.10174 OF 2007 DATED MARCH, 2011 BETWEEN Madakam Borrannadora …Petitioner And Kangala Rajannadora and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.10174 OF 2007 O R D E R The petitioner seeks a writ of certiorari to quash the order dated 04.04.2007 passed by the Election Tribunal-cum-Agency Divisional Officer, Rampachodavaram, East Godavari District, in Election Petition No.6 of 2006 filed under Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994. The petitioner was elected as the Sarpanch of Pudipalli Gram Panchayat, Devipatnam Mandal, East Godavari District, in the election held on 29.07.2006 with a margin of 12 votes. Aggrieved thereby, the defeated candidate, the first respondent herein, filed the subject Election Petition. By the impugned order dated 04.04.2007, the Election Tribunal held the petitioner’s election as the Sarpanch of Pudipalli Gram Panchayat to be void and directed a fresh poll to be conducted. Hence, this writ petition. By order dated 04.06.2007, this Court granted interim suspension of the order under challenge. Thereby, the petitioner continued in office. Though various contentious arguments were advanced by Sri Badana Bhaskara Rao, learned counsel for the petitioner, and Sri P.Prabhakar Reddy, learned counsel for the first respondent/ election petitioner, this Court does not deem it necessary to go into the merits of the case. Perusal of the order under challenge reflects that the Election Tribunal committed various errors and irregularities in the context of the relevant rules obviating the need for further enquiry. Section 233 of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity, ‘the Act of 1994’) stipulates that no election held under the said Act shall be called in question except by an election petition presented to such authority and in accordance with such rules as may be made in this behalf. The Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 were promulgated by the Government of Andhra Pradesh in relation to the decision of election disputes and election offences in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads. Under the explanation to Rule-2(2) thereof, so far as Scheduled Areas are concerned, the Election Tribunal in respect of election of a Sarpanch shall be the Agency Divisional Officer. Rule-3(ii) stipulates that the election petition shall contain a statement in concise form of all the material facts on which the petitioner relies. Rule-7 of the said Rules requires the Election Tribunal to enquire into the election petition in accordance with the procedure applicable under the Code of Civil Procedure, 1908 for the trial of suits. The proviso to the said rule however states that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by it. While this is the legal position, it is surprising to note that the order passed by the Election Tribunal in the present case does not even make a mention of the evidence, be it oral or documentary, which was placed before it by the parties to the election petition. It is not in dispute that evidence was in fact adduced by both parties. However, the Election Tribunal did not even choose to detail the evidence so adduced in the form of an appendix. Further, it did not make a memorandum of the substance of the evidence of the witnesses examined as per the proviso to Rule-7(i). Reference in this regard may be made to J.PUSHPALATHA V/s. ELECTION TRIBUNAL, BHONGIR, NALGONDA DISTRICT[1]. While holding therein that this Court would have the power to review the decision making process of the Election Tribunal and sounding the caution that it should not play the role of an appellate authority, it was observed: “23. ……… Election Petitions are to be tried by Courts, though called as Tribunals, and the procedure under CPC is made applicable to them. An element of discretion, which is available to administrative and quasi-judicial authorities, is not available to such Tribunal. Their decision is expected to be on the basis of the findings on the contingencies provided for under the relevant statute, supported by sound and cogent reasoning and relevant evidence. Viewed from this angle, the scope of judicial review of such decisions is required to be slightly different compared to the one of purely administrative or discretionary in nature. It is in this context that a modicum of examination of the evidence, in contrast to the reappreciation of it is to be undertaken. The exercise would be to ascertain whether any inadmissible evidence was accepted and admissible evidence eschewed. If this much is not undertaken under the pretext of existence of “some evidence”, the Court can simply close the consideration of the matter, the moment it finds an appendix of evidence comprising list of witnesses examined and documents marked before the lower Tribunal”. In the present case, unfortunately, the Election Tribunal did not even choose to attach to its order an appendix of evidence detailing the list of witnesses and the documents examined. Surprisingly, the body of the order also does not advert to the deposition of any witness or examination of any document other than the report dated 14.12.2006 said to have been submitted by the Assistant Election Authority-cum-Mandal Parishad Development Officer, Devipatnam, East Godavari District. Relevant to note, it is the case of the petitioner that the said Assistant Election Authority was not even examined by the Tribunal. Further, he claims ignorance of the contents of the report dated 14.12.2006 said to have been submitted by the said Assistant Election Authority. When the Tribunal based its decision on the said report, it was incumbent upon it to ensure that the contents thereof were put to the petitioner. As pointed out in J.PUSHPALATHA, the result of an election indicates the mandate given by the electorate and in setting aside such election, the Tribunal would not only be depriving the elected candidate of his office but also reversing the mandate of the electorate. Therefore, the Tribunal should ensure that one of the contingencies under the statute for setting aside such an election is established. This Court also pointed out therein that the standard of proof required in an election petition would be higher than those in civil cases but not equal to that in criminal cases. This Court therefore observed that meticulous examination of the pleadings, affidavits, where they are required to be filed, the appreciation, extent to which such allegations are required to be proved, as evident from various decided cases by the Hon’ble Supreme Court, were indications in this regard. The exercise by the Election Tribunal in this case falls woefully short of this required standard. Further, the Election Tribunal based its decision on the alleged violation of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994 pertaining to conduct of elections of Members and Sarpanch of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads, losing sight of the fact that the said Rules stood superseded by the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, promulgated under G.O.Ms.No.142, Panchayat Raj & Rural Development (Ele.) Department, dated 03.05.2006, that is, prior to the subject election which was held in July, 2006. Viewed thus, the order of the Election Tribunal-cum-Agency Divisional Officer, Rampachodavaram, East Godavari District, cannot be sustained. The irregularities committed by the Tribunal as detailed hereinabove leave this Court no option but to set aside the order dated 04.04.2007 and remand the matter to the Election Tribunal for consideration afresh in accordance with law. As the term of office of the petitioner is drawing to a close shortly, it would be in the interest of justice that the Election Tribunal give utmost priority to this case and dispose of the same expeditiously, preferably within three months from the date of receipt of a copy of this order. The Writ Petition is accordingly allowed. In the circumstances, without any order as to costs. ---------------------------- SANJAY KUMAR, J. ________MARCH, 2011. Note: Issue C.C. in three days. (B/O) PGS [1] 2003 (1) ALD 488