THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.20225 of 2008 (Dated : 31-12-2010) Between: Sripathi Chandra Babu …Petitioner A n d Katam Madhusudhana Rao And others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.20225 of 2008 ORDER: This writ petition is directed against the order dated 14.8.2008 of the Election Tribunal-cum-Principal Junior Civil Judge, Machilipatnam constituted under the A.P.Panchayatraj Election Tribunal in respect of Gram Panchayat, Mandal Parishads and Zilla Parshad Rules, 1995 passed in O.P.No.5 of 2006, whereby and whereunder the election petition filed by the petitioner ended in dismissal. 2. Brief facts, giving raise to filing of this writ petition by the unsuccessful petitioner in Election O.P.No.5 of 2006 are:- An election to Pothepally Gram Panchayat of Bandar Mandal of Krishna District was conducted on 6.8.2006. The petitioner and respondents 1 to 6 contested for the post of Sarpanch of Potehpally Gram Panchayat. The 7th respondent is the Returning Officer. Respondents 8 and 9 are the District Election authorities. The 1st respondent won the election having secured maximum number of votes i.e., 503. The petitioner stood as nearest rival having secured 502 votes. Aggrieved by the election of the 1st respondent, the petitioner filed petition under Section 233 of the A.P.Panchayat Act, 1994 read with Section 80(1) and 81 of the Representation of Peoples Act, 1951 to set aside the election of the 1st respondent. The grounds urged by the petitioner are that Firstly; the election of the 1st respondent is contrary to the provisions of the A.P.panchayat Act, 1994, secondly; out of 1390 votes polled, 64 ballot papers were kept aside stating that those ballot papers’ validity will be decided after completion of the counting. Thirdly; the Returning Officer refused to entertain his request for recounting of votes and fourthly; that the Returning Officer was influenced by the sitting M.L.A of Machilipatnam. 3. The 1st respondent and 7th respondent filed separate counters. Respondents 8 and 9 filed memo adopting the counter of respondent No.7. Respondents 2 to 4 remained ex parte. 4. The counter of the 1st respondent, in brief, is:- The total number of votes polled is 1390 and out of them 64 were declared as invalid. Election to the Gram Panchayat has been held on 6.8.2006 as per the statutory instructions issued by the State Election Commission . During counting, the Returning Officer and all the contesting candidates followed the process of counting very carefully. After completion of counting , the Returning Officer allowed fifteen minutes time to the contesting candidates to raise objection in respect of counting. None of the contesting candidates including the petitioner raised any objection in writing as to counting and scrutiny of the ballot papers. The Returning Officer endorsed on each ballot paper, which has been rejected. Later on, the Returning Officer singed the Result sheet duly declaring this respondent’s election as Sarpanch. The petitioner did not raise any objection at the time of scrutiny of votes, counting process, during the pass time of fifteen minutes after counting and declaration of result, and signing Form XXVI by the Returning Officer. The allegation that the Returning Officer declared this respondent as winning candidate for the post of Sarpanch at the instance of the sitting M.L.A is false. 5. The respondents 5 and 6 having raised certain grounds in the counter with regard to the process of declaring the 1st respondent as winning candidate for the post of Sarpanch sought for dismissal of the petition. 6. The counter of the 7th respondent is that he meticulously followed the procedure in the process of counting the ballot papers and the 1st respondent has been declared as winning candidate for the post of Sarpanch of Pothepally Grampanchayat as he secured highest number of votes among all the contesting candidates. 64 ballot papers were declared as invalid in the presence of all the contesting candidates including the petitioner and they did not raise any objection for his declaring the 64 votes as invalid. 7. Before the Election Tribunal, the petitioner examined himself as Pw.1 and marked six documents. On behalf of the respondents, three witnesses were examined as Rws.1 to 3 and one document was marked as Ex.B-1. The tribunal formulated the following point for consideration. Whether the petitioner established grounds to set- aside the declaration of result in favour of first respondent and declare the petitioner herein as winning candidate and that this application is liable to be allowed or not ? 8. The tribunal, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petitioner failed to make out any valid ground to set aside the election of the 1st respondent as Sarpanch of Pothepalli Gram Panchayat and thereby, proceeded to dismiss the O.P., by order dated 14.8.2008. The said order is assailed in this writ petition. 9. Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. 10. Learned counsel appearing for the petitioner submits that the Returning Officer failed to consider his request for recounting and therefore, declaration of result without recounting is invalid. A further submission has been made that the Returning Officer was influenced by the sitting M.L.A in declaring the 1st respondent as winning candidate. 11. Learned counsel appearing for the 1st respondent submits that the petitioner failed to make written representation for recounting of the votes and he having failed to do so, cannot be permitted to contend that the Returning Officer has not considered his oral request for recounting. In support of his submission, reliance has been placed on the decision of this Court in Y.Venkat Reddy v. The Court of the District Munsif, Atmakur[1], wherein it has been held that a request for recounting must be in writing as provided in Rule 35(1) of the Election Rules. 12. Pw.1 is the petitioner. He admits in cross-examination that he did not make a request to the 7th respondent for recounting except Ex.A.5. Under sub-rule (1) of Rule 35, a request for recounting of votes on the date of election itself, must be in writing. A Division Bench of this Court in the above-referred case considered sub-rule (1) of Rule 3 and observed as hereunder:- “ In view of the above, there cannot be any direction to the State Election Commissioner to the Election Officers or an other concerned authorities to act contrary to Rule 35 of the Election Rules. Sub-rule (1) of Rule 35 mandates that there shall be an application in writing to the Election Officer for recounting of votes either wholly or in part stating the grounds for such recount. It follows, recounting cannot be resorted to unless there is an application for the same as contemplated under sub- rule (1) of Rule 35. In the case on hand, the plea of the contesting respondent and the evidence adduced on his behalf that there was recounting of votes on the date of election itself on the application/request made by and on behalf of the petitioner stands unrebutted. Also, it is not the case of the petitioner that he made an application for recounting of votes as contemplated under Rule 35(1) of the Election Rules. Further, as rightly held by the Election Tribunal, there is no iota of evidence to establish that the petitioner made an application for recounting of votes. In such view of the matter, we are fully satisfied that there were absolutely no justifiable grounds for recounting votes on 21-10-95 pursuant to the notification dated 26-7-1995 of the State Election Commissioner. This point is answered accordingly answered against the petitioner and in favour of the contesting respondent”. 13. Pw.1 admits of not making written representation to the 7th respondent for recounting. Any oral request subsequent to the declaration of result cannot be construed as representation in terms of sub-rule (1) of rule 35 of the Rules. Though the petitioner pleaded that copy of Ex.A.5 representation has been submitted to the Returning Officer, he failed to place on record any proof to substantiate the same. The tribunal, after considering the evidence placed on record came to the conclusion that the petitioner invented of his making request for recounting to the Returning Officer, so as to make it a ground to challenge the election of the 1st respondent. For better appreciation, I may refer the relevant portion of the order impugned in the writ petition, which reads as follows:- “ Further, the petitioner in his cross-examination deposed that Ex.A-5-petiton was also addressed to District Collector who is respondent No.9 herein. He further deposed that he put a petition to District Collector and that petition is not Ex.A-5. The petitioner did not file the copy of the petition , submitted to District Collector. He did not file any acknowledgment to show that he submitted petition to District Collector. Further, he deposed that one person wrote “(in telugu)” in Ex.A.5 and another person wrote(in telugu). The petitioner did not explain as to why two persons were involved to scribe Ex.A.5-petition. Further, the petitioner did not establish that the Returning Officer refused to receive Ex.A-5 petition. Since it was mentioned in Ex.A.5 that the copy of Ex.A.5-petition was given to Returning Officer and acknowledgment was taken from him, the contention of petitioner to the effect that the Returning Officer refused to receive Ex.A-5-petiton cannot be accepted and believed. He invented the same only to maintain this petition before this Election Tribunal”. 14. On a reappraisal of the evidence brought on record, I do not see any valid ground to interfere with the findings recorded by the Tribunal as the petitioner failed to substantiate his contention of making a request for recounting soon after the counting is over on 6.8.2006. 15. The next contention of the petitioner is that 64 ballot papers have been kept aside by stating that the validity of the said votes would be considered later. Though the petitioner has taken such a plea, he did not choose to say anything while being examined as Pw.1. Instead, he categorically states that all the ballot papers were opened in his presence and also in the presence of respondents 1 to 6. He admits in cross-examination that the Returning officer verified all the 64 ballot papers and explained the reasons for treating them as invalid. Therefore, the contention of the petitioner that counting of 64 ballot papers has been deferred is not substantiated by any evidence. A feeble contention was advanced by the petitioner that one vote polled in his favour has been declared as invalid. But, during enquiry before the tribunal, the petitioner failed to mention the same. He also did not mention of this fact in Ex.A.5-petition. Therefore, the contention of the petitioner that one vote went in his favour has not been taken into consideration is not substantiated by any evidence whatsoever. The tribunal is justified in rejecting his contention in this regard. 16. The tribunal considered the evidence brought on record in right perspective and found that the petitioner failed to make out any valid grounds to set aside the election of the 1st respondent. There is no error in appreciation of the evidence brought on record by the Election Tribunal. The findings recorded by the tribunal are based on sound reasons and they do not warrant interference of this Court in exercise of powers under Article 226 of the Constitution of India. 17. Accordingly, the Writ Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.31-12-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.20225 of 2008 (Dated : 31-12-2010) [1] 1998(4) ALD 564 (D.B)