Kokkillagadda Sandya, vs The A.P. State Election ...
2023 Latest Caselaw 1041 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                 WRIT PETITION No.4612 of 2021

ORDER:-

       This writ petition for mandamus is filed to declare the

action of respondent No.1 in not considering the representation

of the petitioner, dated 19.02.2021 to take action against

respondent No.3 for not implementing the directions in Letter

No.526/SEC-B2/2021, dated 15.02.2021 as illegal and

arbitrary and consequently, sought direction to respondent

No.1 to consider the representation of the petitioner, dated

19.02.2021.

Heard learned counsel for the petitioner, Sri S. Vivek

Chandra Sekhar, learned Standing Counsel for 1st respondent -

A.P. State Election Commission and learned Assistant

Government Pleader for Revenue for respondent Nos. 2 and 3.

None appeared for respondent No.4.

The petitioner contested for the election of Sarpanch of

Sangameswaram Gram Panchayat, which was held on

17.02.2021. After counting the votes, the result of the election

was declared on the same day i.e., 17.02.2021. The petitioner

lost the election by a margin of three votes. It is stated that the

petitioner has made a written request to the 3rd respondent -

Returning Officer to permit for recount of the votes. Alleging

that the 3rd respondent did not consider the said request of the

petitioner and did not permit for recount of votes, it is stated

that he has submitted a representation dated 19.02.2021 to the

1st respondent - A.P. State Election Commission to take

appropriate action against respondent No.3 for dereliction of

his duty. Stating that the 1st respondent did not take any

action against respondent No.3 as per the representation

submitted by him, the present writ petition has been filed

seeking the aforesaid relief.

Respondent No.1 filed counter stating that as per the

handbook issued for Returning Officers by A.P. State Election

Commission, the procedure to be followed for recount of votes

is prescribed and as per the said procedure, every application

in writing, for recount of votes shall be given within 15 minutes

from the time of declaring the election and as the request of the

petitioner for recount of votes is made beyond the said 15

minutes time and after 30 minutes of declaring the election,

that the said request is not considered by the 3rd respondent.

Therefore, it is stated that the 3rd respondent is not liable for

any action as requested by the petitioner in his representation.

Respondent No.3 filed counter denying the averments

made in this writ petition and asserting that he has followed

the guidelines issued by the State Election Commission.

Learned Standing Counsel for A.P. State Election

Commission would submit that once the result of the election is

declared and the process of election is completed, that the 1st

respondent A.P. State Election Commission would become

functus officio and it does not have any power or control over

the officers appointed as Returning Officers to take action

against them. He would then contend that even otherwise, as

per the procedure prescribed for recount of votes in the

handbook issued to the Returning Officers by A.P. State

Election Commission, the written request for recount of votes is

to be made by the candidate who lost the election within 15

minutes from the time of declaring the election and as the

request is made for recount of votes beyond the said 15

minutes period, that the request was not considered. Therefore,

he would submit that there is no fault on the part of the 3rd

respondent to take any action against him.

Learned counsel for the petitioner would submit that

even though the Election Commission becomes functus officio,

after declaration of election result, as per the Judgment of the

Karnataka High Court in the case of N. G. Puttaswamy Vs.

the Tahsildar and Returning Officer1, that the concerned

Principal Secretary of the Department where the Returning

2008 SCC Online Kar 192

Officer is working can be directed to take action of conducting

enquiry against the officer appointed as Returning Officer for

dereliction of his duty. Therefore, he would submit that still if

the Court finds that there is fault on the part of the 3rd

respondent, then the Court can direct the Principal Secretary of

the concerned department where the 3rd respondent is working

to take action against him.

As can be seen from Clause 18 in the hand book issued

to the Returning Officers for conducting election to Gram

Panchayats, by the A.P. State Election Commission, it is clear

from it that procedure to be followed for recount of votes is

prescribed in it. As per said procedure, request for recount of

votes is to be given in writing within 15 minutes from time of

declaring the result of the election. In the instant case, the

petitioner has submitted his request for recount of votes

beyond the said time of 15 minutes and after 30 minutes of

declaring result of the election. Therefore, it is stated that the

request of the petitioner was not considered by the 3rd

respondent. So, it cannot be said that there is any fault on the

part of the Returning Officer, making him liable for any

departmental action to be taken against him in this regard. It is

only when this Court finds that there is deliberate fault on the

part of the 3rd respondent in rejecting the said request and

committing dereliction of his duty, then the Court can order for

enquiry against him, even by the Principal Secretary of the

department where the 3rd respondent is now working.

Therefore, as it is found that the 3rd respondent has not

committed any deliberate mistake in rejecting the request for

recount of votes, the prayer of the petitioner to order for

enquiry against him cannot be acceded to in this writ petition.

Therefore, the Writ Petition is dismissed. No costs.

Miscellaneous petitions, if any pending, in the Writ

Petition, shall stand closed.

______________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 22.02.2023 GSP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

WRIT PETITION No.4612 of 2021

Date: 22-02-2023

GSP