SK KHASIM BEE Vs. STATE ELECTION COMMISSIONER

JUDGEMENT

(1.) and at the stage of admission, this Court passed interim order in W.P.M.P. No. 17388 of 1995 to the effect that the election shall be subject to the result of the writ petition. It is further stated that the District Collector seems to have misunderstood the orders of this Court and did not declare the results. On 24-10-1995, the State Election Commission issued clarification to all the District Collectors to declare the results where no stay is granted by the Court. The contention of the petitioner that recounting is illegal and contrary to the orders of the court, is not correct. The writ petition is not maintainable as the appropriate forum is the Election Tribunal. It is further stated that the process of recounting was conducted as per the guide* lines issued by the State Election Commission, and that the matter pertaining to votes polled, etc. is a pure question of fact which cannot be agitated in writ proceedings. Article 243(o) bars the jurisdiction of this court to entertain any writ petition under Art. 226 of the Constitution after the issuance of election notification. If the petitioner is aggrieved by the process of recounting, it is open to her to file an election petition. The writ petition is, therefore, liable to be dismissed. The fourth respondent's counter-affidavit also raises similar contentions.

(2.) The office of Sarpanch of Mangaiagiripadu Gram Panchayat in Guntur District is reserved for woman. The petitioner and the fourth respondent have contested to the office of Sarpanch in the elections held on 27-6-1995. The counting of votes took place on 27-6-1995 and it was informed that the petitioner got 512 votes, the fourth respondent got 509 votes and 51 were declared to be invalid votes out of the total votes of ' 1072'. The Election Officer signed Form No. 17, but did not declare the result in view of stay granted by this Court in a batch of writ petitions. The fourth respondent filed Writ Petition No. 14231 of 1995 seeking a direction for recounting, which was admitted and this Court passed an order to the effect that result of election will be subject to the result of writ petition. The State Election Commissioner i.e., the first respondent herein, issued a notification on 26-7-1995 in the light of the petitions received by him from the contesting candidates, directing the Election Officers to undertake recount of votes where margin of votes is less than 1% of the total polled votes and on other grounds mentioned therein. This notification was not published in the Gazette. After the issuance of the notification, recounting of votes was undertaken in regard to Mangaiagiripadu Gram Panchayat on 21-10-1995. In the recounting, the petitioner got 510 votes, the fourth respondent got 513 votes and 42 votes were invalid and 7 ballot papers were found to be missing. Assailing the action of the respondents in undertaking recounting of votes, the writ petition is filed to direct the respondents not to declare the result of elections to the Sarpanch Office of Mangalagiripadu Gram Panchayat and order them to recount the votes of all the wards as done earlier. The contention of the petitioner is that the entire recounting process is contrary-to law and is in violation of the A.P. Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayats, Members of Mandal Parishads and Members of Zilla Parishads) Rules, 1994, besides being doubtful and suspicious. On 26-10-1995, this Court granted stay of declaration of result of the election, if not already announced.

(3.) Counter affidavits have been filed by the first and fourth respondents. It is stated in the counter affidavit filed by the first respondent that recounting took place on 21-10-1995 and that the petitioner and fourth respondent were the contesting candidates. The fourth respondent filed Writ Petition No. 14231