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Syed Shah Mohammed Quadri, J.—K. Ramanjaneyulu (the petitioner herein) contested for the post of Sarpanch of Kotanka Gram Panchayat. That post is reserved for B.C. Category. The election for the said post was scheduled to be conducted on 24-6-1995. At the stage of counting, it appears, (1285) votes have been polled, out of which the petitioner secured (623) votes and C. Subrahmanyam (the fourth respondent herein), the other contestant, secured (599) votes. Form No. 17 was thus filled in but the result of the counting was not announced. It is stated that a representation was filed before the second respondent by some villagers belonging to Scheduled Caste on 26-6-1995.Thesecondrespondentdirected the Revenue Divisional Officer to conduct an enquiry into the allegations made in the said representation. Accordingly, on the next day i.e. 27-6-1995 the Mandal Revenue Officer conducted an enquiry and opined that no case for repolling was made out. It is alleged that without waiting for the report of the Mandal Revenue Officer, the second respondent sent fax message to the third respondent on 28-6-1995 requesting him to order repoll for the entire Gram Panchayat on the ground that the first respondent did not use indelible ink while issuing ballot papers. On 29-6-1995 the third respondent ordered repoll of the said Gram Panchayat which comprises of 10 wards. It appears the report of the Mandal Revenue Officer was received by the second respondent on 28-6-1995. He requested the third respondent to cancel the repoll already ordered and accordingly repoll was cancelled on 3-7-1995. On 4-7-1995 the third respondent again directed to conduct repoll on 9-7-1995. The petitioner questions the said order of the third respondent dated July 9 (sic. 4), 1995 directing repoll in this writ petition.
The petitioner filed an additional affidavit stating that the power to order repoll is conferred on the third respondent u/s 231 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short ''the Act of 1994'') and that can be done only when there had been booth capturing at one polling station affecting the result of the election or when the result of the poll cannot be ascertained. Such an action can only be taken on receipt of the report of the Returning Officer. In this case the Mandal Revenue Officer did not make a mention of rigging at Kotanka village and he did not even suggest for repolling. No case of booth capturing was reported at any particular polling station or more polling stations than one affecting the result of the poll. Even form No. 17 was filled in. Therefore the result of the election had become final. Further the third respondent had not recorded the finding that the results of the election are affected either in one polling station or more polling stations than one. In case it is established that booth capturing has taken place in a polling station or in large number of polling stations affecting the result of the election, the only action that can be taken is to countermand the election but not to order repoll.
In the counter affidavit, the third respondent inter alia submits that pursuant to the election notification, the elections were conducted in four phases. On 28-6-1995 the second respondent sent fax message stating that the Stage-II Election Officer did not use indelible ink while issuing ballot papers to voters of Kotanka village of Garladinne Mandal. By putting indelible ink mark on the finger of the voter, rigging and double voting could be prevented and this lapse is a serious lapse. Therefore repolling may be ordered. On receipt of that message, the third respondent issued orders on 29-6-1995 for fresh poll for all the offices of Kotanka Gram Panchayat to be held on 3-7-1995 between 7 A.M. and 1 P.M. While so, the second respondent again sent another message dated 28-6-1995 requesting the State Election Commissioner to cancel the earlier order of repoll for all the offices in Kotanka Grampanchayat . This message was received by the State Election Commissioner on 1-7-1995. The third respondent issued notification dt 1-7-1995 cancelling the repoll scheduled to be held on 3-7-1995 as it was apprehended that election machinery would move to Kotanka Grampanchayat to conduct the repoll and directed the District Collector, Anantapur to get the matter thoroughly enquired. The Mandal Revenue Officer, Garladinne Mandal in his report submitted to the District Collector, Anantapur stated that the village is a faction ridden village in which one group is headed by Sri Subramanyam (the fourth respondent herein) and the other by Sri K. Anjaneyulu and on enquiry he came to the conclusion that there were some clashes between the two groups on the date of poll and the harijans of that village did not exercise their franchise out of fear. In addition to that there was another factor which was brought on record and that is though the said Election Officer was supplied with indelible ink, he did not use the same to put a mark on the finger of the voters. These lapses resulted in vitiating the election. On the basis of that report, the third respondent, to maintain purity and fairness of the election, and on consideration of the representation ordered repoll to be held on 9-7-1995 and accordingly repolling was conducted on 9-7-1995. There is neither any illegality nor any irregularity in ordering repoll. It was also added that the Stage II Election Officer who was responsible or not using the indelible ink was suspended by the second respondent.
Sri Subramanyam Reddy, the learned Senior Counsel appearing for the petitioner submits that the impugned order directing repoll of the said Grampanchayat is purported to have been made under Article 243K of the Constitution of India and that exercise of power under that provision of the Constitution cannot be in contravention of Section 231 of the Act, 1994. He further submits that though not using indelible ink is contrary to the rules, it is not a ground for ordering repoll; it might at best be adjudicated before an appropriate forum as being in violation of the rules but it furnishes no ground to order repoll.
The learned Standing Counsel, appearing for the third respondent, submits that under Article 243K of the Constitution of India, the Election Commission is free to act to ensure free and fair elections and that ordering repoll is therefore valid. It is further submitted that the order of the Election commission cannot be questioned before the High Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India and that the aggrieved party can only agitate the matter before the Election Tribunal.
Sri Venugopal Rao, the learned Counsel appearing for the fourth respondent, submits that not using indelible ink is a fundamental omission in the conduct of election and having regard to the explanation to Section 224 of the Act, 1994 it amounts to booth capturing, as such the order passed by the Election Commissioner is well within his powers.
The questions that arise for consideration in this writ petition are:
(i) Whether the order of the third respondent dt 4-7-1995 directing repoll of Kotanka Grampanchayat, Garladinne Mandal, Anantapur District'', is valid in law;
(ii) Whether this court, in exercise of power under Article 226 of the Constitution of India, can interfere during the election process.
The First Point:- We shall first deal with the scope of the power conferred by Article 243K of the Constitution and Section 231 of the Act, 1994. Article 243K of the Constitution of India, in so far as it is relevant for this case, reads thus:-
"243-K. Election to the Panchayats: (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election commissioner to be appointed by the Convenor.
2...............
3...............
Subject to the provisions of this Constitution the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
It will also be useful to refer to the provisions of Article 324 of the Constitution of India here. Clause 1 of that Article is in the following terms:
"324. Superintendence, direction and control of elections to be vested in an Election Commission: (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice President held under this Constitution shall be vested in a Commissioner (referred to in this Constitution as the Election Committee."
The extent and ambit of power of the Election Commission under Article 243K is the same as under Article 324 of the Constitution of India. There can be no doubt that the Election Commission has plenary power under Articles 324 and 243K of the Constitution of India. But, that power is not absolute. It is subject to the provisions of the Act and the Rules made under the Act. Therefore it follows that the impugned order directing repoll will be sustainable under Article 243K of the Constitution only if it is not in violation of the provisions of the Act and the Rules made thereunder. For this proposition we derive support from the following pronouncements of the Apex Court.
In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, one of the questions which fell for consideration before the Supreme Court was, whether the Election commission had power to order total repoll of the entire constitutency. The Election Commissioner''s contention was that power was derived from Article 324 of the Constitution of India. Dealing with that contention justice V.R. Krishna Iyer, speaking for the Supreme Court laid down:
"the commission is entitled to exercise certain powers under Article 324 itself on its sown right, in an area not covered by Representation of the Peoples Act and the rules."
It is observed that there was no limitation in Article 324(1) from which it can be held that where the law made under Article 327 or the relevant rules made thereunder does not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election and the Election Commission was competent in an appropriate case to order re-poll of an entire constituency where necessary and that would be an exercise of power within the ambit of its functions under Article 324.
In A.C. Jose Vs. Sivan Pillai and Others, The Supreme Court while considering the scope of power of Election Commission under Article 324 summarised the position thus:
"25. To sum up, therefore, the legal and constitutional position is as follows:
(a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in request of the conduct of elections,
(b) where there is an Act and express Rules mad e thereunder, it is not open to the commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and rules in the matter of superintendence, direction and control as provided by Article 325.
(c) Where the Act or the rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given."
Now it becomes necessary for us to look to the provisions of the Act of 1994'' and the Rules made thereunder with regard to the scope of power of the Election Commission to order repoll. Section 231 of the Act, 1994 is the relevant provision. It reads as follows:
"231. Adjournment of poll or countermanding of election on the ground of booth capturing :-
(1) If at any election--
(a) booth capturing has taken place at a polling station or in such number of polling stations as is likely to affect the result of such election or that the result of the poll at that polling station cannot be ascertained; or
(b) booth capturing takes place in any place for counting of votes in such a manner that the result of the counting at that place cannot be ascertained, the returning officer shall forthwith report the matter to the State Election Commissioner.
(2) The State Election Commissioner shall on the receipt of a report from the returning officer under Sub-section (1) and after taking all material circumstances into account, either,--
(a) declare that the poll at that polling station be void, appoint a day, and fix the hours, for taking fresh poll at that polling station and notify the date so appointed and hours so fixed in such manner as he may deed fit, or.
(b) if satisfied that in view of the large number of polling stations involved in booth capturing the result of the election is likely to be affected or that booth capturing had affected the counting of votes in such manner as to effect the result of the election, countermand the election in that constituency.
Explanation:- In this section "booth capturing" shall have the same meaning as in Section 224".
A plain reading of the above section makes it dear that where in any election booth capturing takes place at a polling station or in such number of polling station as is likely to affect the result of such election or that the result of the poll at that polling station cannot be ascertained; or when booth capturing takes place in any place for counting of votes so as to affect the result of the counting at that place in such a manner that the result of the counting at that place could not be ascertained, then the Returning Officer is bound to report the matter to the State Election Commissioner immediately. On receipt of such a report from the Returning Officer, the State Election Commissioner, after taking all material circumstances into account has to decide whether he should declare that the poll at that polling station be void and if he decides so to do, he has to appoint a day and fix the hours for taking fresh poll at that polling station and notify the date and the hours so appointed for such repoll. He has also the power, if he is satisfied having regard to large number of polling stations involved in booth capturing that the result of the election was likely to be effected or booth capturing had affected counting of votes, in such a manner as to affect the result of the election, to countermand the election in that constituency. Thus, it is clear that where booth capturing takes place at a polling station or polling stations more than one but not in large number of polling stations, then the option for the State Election commissioner is to order repoll in those polling stations. But if the booth capturing takes place in large number of polling stations and affects the results of the election or affects the counting of votes, then the option is to countermand the election. The expression "booth capturing" is given the same meaning as in Section 224.
Now we shall advert to the facts of this case, as given in the impugned order dt. 4-7-1995, which recites thus:
"Proceedings of the State Election Commissioner, Andhra Pradesh: Hyderabad.
Present: Sri S. Kasipandian, IAS., (Retd)
Station: Hyderabad.
No. 510/Section B/795-96 Dt. 04-7-95. Sub: ELECTIONS - Election to Panchayat Raj Bodies, 1995-Repoll in certain polling stations Orders- Issued.
ORDER:
The District Election Authority and District Collector, Anantapur, through his Fax Message No. Ele/95 dt. 8-6-95, informed the State Election Commission that the Election Officer of Kotanka Grampanchayat of Garladinne Mandal, did not use indelible ink while issuing the votes to the voters and requested the State Election Commission to order repoll for all the offices in Kotanka Gram Panchayat. The State Election Commissioner after careful examination of the submissions of the District Election Authority ordered repoll through Pro. No. 510/Section-B/95-19, dt. 29-6-1995. The poll day was fixed on 3-7-1995. Meanwhile, the District Election Authority sent another Fax Message No. Ele/95. dt. 28-6-95, to cancel the repoll ordered earlier. The State Election Commission in order to get full details from the District Collector with regard to lapses that were committed in conduct of the polls cancelled the poll that was fixed on 3-7-95 on administrative grounds. The State Election Commission after thorough examination of the entire records and also after getting the information from the District Election Authority through phone, in order to keep purity and fairness in the conduct of the elections, directs repoll in exercise of the powers conferred under Article 243K of the Constitution of India, for all the offices in Kotanka Grampanchayat of Garladinne Mandal on 9-7-1995 between 8-00 A.M and 1-00 P.M.
Sd. S. Kasipandian, State Election Commissioner
To The District Collector, Anantapur"
From a perusal of the impugned order, extracted above, it is dear that the impugned order directing repoll was passed under Article 243K on the-sole ground that the Stage-2 Election Officer did not use the indelible ink while issuing the votes to the voters.
Now we shall refer to Section 224 of the Act, 1994 to consider the question, whether not using of indelible ink would amount to booth capturing within the meaning of that expression. Section 224 of the Act, 1994 reads as follows:
"224. Offence of booth capturing:- Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.
Explanation:- For the purposes of this Section "Booth capturing" includes, among other things, all or any of the follo wing activities, namely�
(a) seizure of a polling station by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;
(b) taking possession of a polling station by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from voting;
(c) threatening any elector and preventing him from going to the polling station to cast his vote;
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects orderly counting of ballot papers;
(e) taking possession of a place for counting of votes;
(f) doing by any person in the service of Government of all or any of the aforesaid activities or aiding or conniving at any such activity in the furtherance of the prospects of the election of a candidate".
On a careful reading of Clauses (a) to (e) of the Explanation, extracted above, it can be seen that mere seizure of a polling station by any person or persons, making polling authorities surrender the ballot papers or voting machines or doing of any other act which affects the orderly conduct of the elections is within the meaning of ''booth capturing''. The acts and omissions mentioned in Clauses (a) to (e) of the said Explanation are normally indulged in by any non-official agency, but Clause (f) is wide enough to bring within the meaning of expression of ''booth capturing'' all or any of the said acts or omissions or aiding or conniving at any such activity if done in the furtherance of the prospects of the election of a candidate by a person in the service of the Government. Thus it is evident that if the acts and omissions mentioned in Clauses (a) to (e) of Explanation to Section 224 of the Act, 1994 are done by any non-official agency, it would be within the meaning of expression ''booth capturing'', but if those acts and omissions are attributed or attributable to a person in the Government Service, a further requirement that the Government Servant has done so in furtherance of the prospects of the election of a candidate should also be satisfied.
Sub-rule 3 of Rule 21 of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 1994 enjoins the polling officer or polling clerk, as the case may be, to apply the indelible ink mark on the ridge between the skin and the root of the nail of left hand fore finger. We are of the view that not applying indelible ink by the officer which is mandatory under the said rule if done in furtherance of the prospects of the election of a candidate, would be well within the meaning of an act which affects the orderly conduct of election in Clause (f) and thus amounts to ''booth capturing''.
In the instant case, it is nobody''s case that not applying of indelible ink, though mandatory, was done by the concerned officer in furtherance of the prospects of the election of any candidate. Thus, it follows that on the facts of this case not applying indelible ink does not amount to ''booth capturing'', and as such the order cannot be supported u/s 231 of the Act, 1994.
It is well settled that the power under Article 243K by the Election Commissioner though plenary, has to be in conformity with the Provision of the Act and the Rules made thereunder. We have noticed above that the impugned order directing repoll is in violation of Section 231 of the Act. So it cannot be sustained under Article 243K of the Constitution of India.
In the above view of the matter, we do not consider it necessary to examine the contention of Sri Subramanyam Reddy that even if not applying indelible ink amounts to booth capturing, the proper order that could have been passed by the Election Commissioner was to countermand the election but not to order repoll.
The Second Point:-
Now the next question that arises is, having held thus, whether it would be open to us to interfere with the impugned order under Article 226 of the Constitution of India while the election process is on. It is no longer in controversy that election process starts from the date of notification and ends with the publication of results of the election. Undoubtedly, the order was passed during the course of elections. If any illegal order is passed by any authority, the proper remedy, as contended by the learned Standing Counsel for the State Election Commissioner, is to approach the Election Tribunal but not to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. At this stage we have to examine the bar on the exercise of power contained in Article 243O and Section 233 of the Act, 1994. Article 243O is as follows:-
"24-O: Bar to interference by courts in electoral matters: Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any court;
(b) no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner aft is provided for by or under any law made by the Legislature of a State."
Section 233 of the Act, 1994 which is intended to fall in line with the Article provides thus:
"233. Election Petitions:- No election held under this Act shall be called in question except by on election petition presented to such authority and in accordance with such rules as may be made in this behalf."
In exercise of power conferred under Article 243K. the Government of Andhra Pradesh made A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short ''the Rules, 1995''). Part II Rule (2) of the Rules, 1995 also provides that save as otherwise provided no election held under the Act whether of a member, Sarpanch, or Upa-Sarpanch of Gram Panchayat, or President and Vice-President of Mandal Parishad and Member of Mandal Parishad Territorial Constituencies, and Chairman and Vice-Chairman of Zilla Parishad and Member of Zilla Parishad and Member of Zilla Parishad Territorial Constituency thereof, shall be called in question except by an election petition presented in accordance with the Rules to the Election Tribunal by any candidate or elector against the candidate who has been declared to have been duly elected. The argument of the learned counsel for the respondent is that the petitioner instead of questioning the order passed by the Election Commissioner directing repoll should wait till repoll is over and if the ultimate result goes against him, he can invoke the jurisdiction of the Tribunal instead of challenging the order directing repoll. This contention can be accepted provided the scheme of the rules postulates adjudication of the dispute like the one in this case. Our attention is invited to Rule 12 (d) of the Rules, 1995 and reliance is placed on Rule 12 (d) (iv) of the Rules, 1995. The said rule reads thus:
"12. If in the opinion to the Election Tribunal.
(a) x x x x
(b) x x x x
(c) x x x x
(d) that the result of the election, in so far as it concerns a Returned Candidate has been materially affected,
(i) xxxx
(ii) xxxx
(iii) xxxx
(iv) by any non compliance with the provisions of the Act, or any Rules or Orders made under the Act.
(A) The Election Tribunal shall declare the election of the Returned Candidate to be void.
(B) If the Election Tribunal holds the Returned Candidate guilty under Clause (b) and Clause (d) (ii) of this ''Rule, the Election Tribunal shall in addition to declare as void, shall also declare that the returned candidates shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order."
A perusal of the above said Rule shows that where the result of the election concerning the Returned candidate, has been materially affected by any non-compliance with the provisions of the Act, or any Rules or orders made thereunder, then the Tribunal shall declare the election of the Returned Candidate to be void.
It is true that the question whether the order of repoll, is violative of Section 231 of the Act, 1994, would be liable to be adjudicated upon by the Tribunal, if it purported to have been passed u/s 231 of the Act, 1994. But the Election Commission relied on a superior law namely Article 243K of the Constitution of India to pass the order in question. Rule 12 (d) of the Rules, 1995 only provides adjudication of violation of the Act and the Rules only but not of constitutional provision. Here it would be apt to read Section 100(d)(iv) of the Representation of People Act, 1951. It reads as follows:
"100. Grounds for declaring election to be void--1. Subject to the Provisions of Sub-section (2) if the High Court is of opinion-
(a) xxxxx
(b) x x x x x
(c) x x x x x
(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected-
(i) x x x x x
(ii) x x x x x
(iii) x x x x
(iv) by any non-compliance with ''the provisions of the Constitution'' or of this Act or of any Rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
It is evident that the Tribunal under the Representation of People Act, 1951 has the power to go into the question of non-compliance of �the provisions of the Constitution� and as these words ''the provisions of the Constitution'' in Clause (iv) of Section 100(1)(d) of the Representation People Act, are absent in Rule 12 (d) (iv) of the Rules, 1955, the aggrieved party, the petitioner herein cannot claim relief from the Tribunal on the ground that the Order of repoll is violative of the Provisions of the Constitution, and as such it is a fit case for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
From the foregoing discussion, it follows that the impugned order could not have been passed under Article 243K of the Constitution of India as it is violative of Section 231 of the Andhra Pradesh Panchayat Raj Act, 1994 and is, therefore, unsustainable in law, The impugned order directing repoll is therefore quashed. The authorities are at liberty to proceed further in the matter in accordance with law. The Writ Petition is accordingly allowed, but in the circumstances of the case, we make no order as to costs.