Y. Bhaskar Rao, J.:— The office of Sarpanch of Mangalagiripadu 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 Mangalagiripadu 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.

2. 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 Panchayatas, 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 of 1995 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 guidelines 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 procedings. 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.

4. Sri S. Ramachandar Rao, the learned counsel appearing for the petitioner, contended that pursuant to the elections held, counting took place and the details of votes were entered in Form No. 17, which was signed by the Election Officer on the same day and therefore, no recounting can be ordered, unless a petition was filed on the same day before the Election Officer immediately after counting of votes. He further contended that as per the directions of the Supreme Court, the result ought to have been declared without undertaking recounting as per Form No. 17; and that the ntification dated 26-7-1995 issued by the first respondent is beyond his legal competence as it runs counter to the A.P Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayat, Members of Mandal Parishads and Members of Zilla Parishads) Rules, 1994 and the A.P Panchayat Raj Act, 1994. It is further contended that the power to decide whether or not to recount the votes, at the request of the aggrieved party, is conferred on the Election Officer as per the Rules, that the first respondent usurped that power by issuing the notification dated 26-7-1995 by giving the direction to conduct recounting, that the Rules are self-speaking code regarding recounting, that the first respondent being the constitutional authority cannot issue notification contrary to the provisions of the Act and the Rules as his powers under Article 243(K) of the Constitution and Section 201 of the A.P Panchayat Raj Act are subject to the provisions of the Act and the Rules and that therefore the notification dated 26-7-1995 has to be declared unconstitutional and ultra vires the provisions of the A.P Panchayat Raj Act and the Rules.

5. Sri E. Manohar, learned counsel appearing for the first respondent, contended that the writ petition itself is not maintainable because Art. 243(O) bars jurisdiction of this Court in exercising powers under Article 226 of the Constitution. He further contended that the recounting done on 21-10-1995 is quite legal and valid as the same was done in pursuance of the notification dated 26-7-1995 issued by the first respondent by virtue of the power conferred on him vide Art. 243(K) of the Constitution and Section 201 of the A.P Panchayat Raj Act and that the petitioner has got effective alternative remedy by way of election petition as provided under the Rules.

6. Firstly, we will consider the question, whether the writ petition is maintainable or not. Article 243(o) of the Constitution which is relevant reads:

“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 Art. 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 as is provided for by or under any law made by the Legislature of a State.”

From the above Article, it is evident that in electoral matters interference by Courts is barred. Then, the question to be considered is, whether, ‘the Court’ occurring in the Article includes ‘the Constitutional Court's also. If the jurisdiction of the Constitutional Court is also barred, then the power of judicial review, which is the basic feature of the Constitution, is deemed to have been taken away. There is difference between ‘power of judicial review’ and ‘judicial power’. The ‘power of judicial review’ is specially conferred on the Constitutional Courts i.e, the High Courts and the Supreme Court under Art. 226 and 32 of the Constitution, respectively. The other Courts and the Tribunals created under different enactments are conferred with ‘judicial powers’. Such Courts and the Tribunals created under different enactments cannot exercised the ‘power of judicial review’.

7. In a catena of decisions, the Supreme Court had considered the scope and ambit of ‘judicial review’. Patanjali Sastri, C.J speaking for the Court in State of Madras v. V.G Rao, AIR 1952 SC 196 observed (at p. 199 of AIR):

“Before proceeding to consider this question, we think it right to point out what is sometimes overlooked, that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments. If, then, the Courts in this country face upto such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution.”

8. While considering the validity of the Constitution (25th Amendment) Act, 1971, the theory of basic structure was propounded by the Apex Court in Kesavananda Bharathi v. State of Kerala, AIR 1973 SC 1461. Majority of the Judges held that separation of powers of legislature, executive and judiciary is one of the basic features of the Constitution. Shelat and Grover, JJ., held:

“The function of interpretation of the Constitution being thus assigned to the judicial power of the State, the question whether a subject of law is within the ambit of one or more powers of the legislature, conferred by the Constitution would always be the question of interpretation by the Constitution.”

They observed that the power of judicial review is one of the important features of the Federal Constitution. They also quoted with approval the opinion of Patanjali Sastri, C.J, in V.G Rao's case (AIR 1952 SC 106) (supra) that judicial review is undertaken by the Courts not out of any desire to tilt as legislative authority in a crusader's spirit, but in discharge of a duty plainly laid down therein by the Constitution. P. Jaganmohan Reddy, J. observed as under:

“A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view constitute the basic structure.”

Khanna J., observed:

“Our Constitution postulates Rule of law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness. The vesting of power of exclusion of judicial review in a legislature, including State Legislature, contemplated by Article 31-C, in my opinion, strikes at the basic structure of the Constitution.”

By reading these individual Judgments in Keshavanand Bharathi's case (AIR 1973 SC 1461), the consensus of opinion that has emerged is that judicial review is one of the basic features of the Constitution and that the Parliament has no power to amend the basic structure of feature of the Constitution.

9. The constitutional validity of the Constitution (39th Amendment) Act, 1975 fell for consideration of the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Majority of the Judges declared Clause (4) of Art. 329-A as introduced by the Constitution 39th Amendment Act of 1975 as unconstitutional. Khanna, J., dealing with the contention of the learned Solicitor General, that according to the Judgment in Keshavananda Bharathi's case supra no fundamental right is part of the basic structure of the Constitution, by quoting the obervations in Keshavananda Bharthi's case (AIR 1973 SC 1461) (supra), held that the power of amendment under Art. 368 does not include power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. As regards the ‘basic feature’ of the Constitution, Mathew, J., observed:

“This Constitution has a basic structure comprising the three organs of the Republic: the Executive, the Legislature, and the Judiciary ……….. Neither of these three separate organs of the Republic can take over the function assigned to the other. This is the basic structure or scheme of the system of Government of the Republic laid down in this Constitution whose identity cannot, according to the majority view in Keshavananda's case, be changed even by resorting to Art. 368.”

Chandrachud. J., held:

“Basic structure’, by the majority Judgment is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subject to it because it is a Constituent power.”

10. The Constitution (42nd Amendment) Act, 1976, which added Clauses (4) and (5) to Article 368 placing Constitutional amendments beyond the purview of judicial review, was challenged in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789. The Constitution Bench declared new clauses (4) and (5) Articles 368 as unconstitutional holding:

“A limited amending power is one of the basic features of the Constitution and therefore the limitations on the power cannot be destroyed. In other words, Parliament cannot, under Art. 368 expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.”

11. From, the above decisions, it is manifest that the judicial review is one of the basic structures of the Constitution, the Constitutional Courts alone are competent to interpret the constitutional provisions and scrutinise the constitutionality of the legislation and rules and the power of judicial review cannot be abridged or abrogated by bringing an amendment to the Constitution.

12. When the Constitutionality of sub-clause (d) of Clause (2) of Art. 323-A of the Constitution fell for consideration, a Full Bench of this Court in S. Harinath v. State of H.P, (1993) 2 Andh LT 471 considering the decisions referred to above, held:

“From a close examination of the views expressed by the majority in Keshavananda (2) (supra) we get a clear picture that the power of Parliament under Art. 368 to amend the Constitution does not extend to abrogating the basic features of the Constitution. What are integral to the Constitution cannot be destroyed by Parliament in exercise of its constituent power under Art. 368. Even though the language employed in Art. 368 is wide, the nature of the constituent power confined in Parliament is subject to the aforesaid limitations. It is, therefore, followed that not being a sovereign body with unlimited powers, whatever powers are confided in it must be exercised within the specified limitations. What it can do in exercise of its constituent power, it cannot do in exercise of legislative power. The power of judicial review is a basic feature of the Constitution and an integral part of our Constitutional system. The independence of the Constitutional Courts — The Supreme Court and the High Courts — is assured by the Constitution and the power of judicial review is vested in them.”

13. In S. Fakruddin v. Govt. of A.P, (1995) 2 Andh LT 439 (Spl. FB), vires of the Rules relating to conduct of Elections of Members of and Members of Zilla Parishads fell for consideration of a Special Full Bench considering of Five Judges of this Court. Dealing with the contention that Art. 243(O) introduced by Constitution (73rd Amendment) Act, 1992 bars interference by Courts in electoral matters, it was held:

“A constitution amendment which tends to take away the Constitutional Courts' power that is the power of the High Court under Art. 226 of the Constitution, shall be invalid. There can be no matter in the hands of the legislature in its function as the law maker which will be kept out of the scrutiny of the Courts however limited that scrutiny be. Even the conservative view that if there is an alternative effective and efficient mechanism for judicial review which is as independent as the High Court, its power under Art. 226 of the Constitution will not be available leaves scope for the court to see whether the mechanism is such that the Court should refrain and not exercise its jurisdiction, court is inclined to extend this principle and hold as respects the matters which are sought to be excluded from the judicial review under Art. 243-O of the Constitution which has been brought in by the 73rd Amendment.”

As regards the power of judicial review of High Courts and the Supreme Court, it was observed:

“The consesus of the opinion is that judicial review is a basic feature except in respect of matters which are specifically excluded by the Constitution as originally enacted and that Courts act as the real interpreters of the real will of the people …… they perform an essential judicial function…….

The basic features of the Constitution stand projected, for Art. 32, the power of the Supreme Court, cannot be taken away and its power under Art. 136 can be a proper safeguard of judicial review of any adjudication by the alternative authority or forum, provided however it is an effective alternative institutional mechanism or arrangement of judicial review. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained, and every organ of the State is kept within the limits of the law.”

14. From these decisions, it is evident that the Constitutional Courts alone are competent to interpret the Constitution and to adjudge about the constitutionality of the legislation and rules and the power of judicial review, which is one of the basic features of the Constitution, cannot be abridged or abrogated by bringing an amendment to the Constitution. Shri E. Manohar contended that above two Judgments of this Court are suspended by the Supreme Court and therefore they cannot be taken into consideration. Even if the contention of the learned Counsel is accepted, in view of the dicta laid down by the Supreme Court in the above cited decisions, we hold that judicial review is the basic structure of the Constitution and the same cannot be abrogated. The contention of Sri E. Manohar that Art. 243(O) bars the extraordinary jurisdiction of High Court under Art. 226 of the Constitution is not tenable. It is settled principle that where there is an effective alternative remedy under the statute, the High Court will not exercise its jurisdiction as a self-imposed restriction. In electoral matters, the High Court observes self-imposed limitations and declines to interfere with the election process when once the election notification is issued because they can effectively be agitated before the Election Tribunal. But, where the constitutional validity of an Act or a Rule or provision of an Act affecting the election is challenged, or where error in exercising such jurisdiction or mala fides or non-compliance of rules of natural justice established, the High Court has got ample power to render justice by exercising the power of judicial review conferred on it under Art. 226 of the Constitution.

15. In support of his contention that Art. 243(O) of the Constitution specifically bars inteference of Courts in electroal matters, Sri Manohar relied on a decision of the Supreme Court in Mohinder Singh v. Chief Election Commr., AIR 1978 SC 851.

16. The facts in the above cited decision are that the appellant and the third respondent were principal contestants to the Ferozpore parliamentary constituency to which elections were held on 16-3-1977. Declaration of result was postponed due to mob violence and destruction of postal ballot papers and the observer gave a written report as to the untoward incidents which marred the elections. After taking stock of the situation, the Election Commission cancelled the elections and ordered repolling. Then the appellant moved the High Court under Art. 226 of the Constitution to declare the order of the Election Commission as void and without jurisdiction. The High Court even though holding that it had no jurisdiction to entertain the writ petition, gave yerdict on merits of the case by exercising jurisdiction which exclusively belonged to the Election Tribunal. Then the appellant approached the Supreme Court by way of Special Leave. The Supreme Court considering whether the order for fresh poll can be said to be during course of election and is amertabte to challenge in view of the bar imposed under Art. 329(b), observed: (AIR 1978 SC 851 Paras 31, 32 and 91):

“The catch — all jurisdiction under Art. 226 cannot consider the correctness, legality or ortherwise of the direction for cancellation integrated with repoll ……. A writ petition challenging the cancellation coupled with repoll amounts to calling in question a step in ‘election’ and is therefore barred by Article 329(b) …….

The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as predicated in Art. 329(b) of the Constitution and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.”

17. In the circumstances and facts of that case, the Supreme Court held that when the High Court is the Tribunal for considering election petitions and such an effective alternative remedy is available, the writ petition is not maintainable. Further, the Supreme Court followed the ratio laid down in N.P Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64 wherein Fazal Ali, J., delivering the judgment of the Court held (at p. 68 of AIR):

“……. whether the law of elections in this country contemplates that there should be to attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution and another after they have been completed by means of an election petition. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consisted in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner at any other stage and before any other Court. If the grounds on which an election can be called in questions could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art. 329(b) and in setting up a special tribunal.”

It was further observed therein (at p. 71 of AIR):

“It should be mentioned here that the question as to what the powers of the High Court under Arts. 226 and 227 and this Court under Art. 136 of the Constitution may be is one that will have to be decided on a proper occasion.”

18. Thus, the obsevations indicate that the Court proceeded on the footing that ordinary jursdiction of the Courts alone was excluded under Art. 329 and not the extraordinary jurisdiction of the High Court under Arts. 226 and 227 and of the Supreme Court under Art. 136 of the Constitution. When the ratio laid down in N.P Ponnuswamy's case, (AIR 1952 SC 64) (supra) was followed in Mohinder Singh's case (AIR 1978 SC 851) (supra), it cannot be said that the dicta laid down therein is completely barring judicial review.

19. For the sake of arguments, taking that the Supreme Court and the High Courts cannot interfere in electoral matters of Parliamentary and State Legislatures as the same is barred under Art. 329 of the Constitution, it is to be noticed that Art. 329 of the Constitution is part and parcel of the original Constitution and formed basic structure of the Constitution, as propounded by the Supreme Court in Keshavandanda Bharathi's case, (AIR 1973 SC 1461) (supra). It is deemed that the Parliament has got knowlege of the decisions of the Apex. Court of the country, particulary of Keshavandanda Bharathis's case (AIR 1973 SC 1461) (supra) and Minerva Mills's case (AIR 1980 SC 1789) (supra) wherein the basic features of the Constitution were illustratively pointed out by the majority of the Judges which includes the judicial review as the basic feature of the Constitution and was held that the Parliament has no power to abridge or abrogate the basic features of the Constitution. Having knowledge of the decisions of the Apex Court if the Parliament incorporate provisions later barring jurisdiction of the courts, it has to be presumed that the bar of jurisdiction is against the ordinary courts and not the extraordinary jurisdiction of the constitutional Courts of judicial review. Article 329 is part and parcel of the Constitution and whereas Art. 243(O) was incorporated by 73rd Amendment to the Constitution which is after the decision of the Supreme Court that judicial review is one of the basic structures of the Constitution. Therefore, bar of interference by ‘Courts’ in electoral matters has to be understood as the bar as against the ordinary courts and not against the Constitutional Courts and it cannot be said that the Parliament intended to take away the power of judicial review of the Constitutional Courts by incorporating Article 243(o). If Article 243(o) of the Constitution has to be construed so as to bar the jurisdiction of the Constitutional Courts i.e, the High Court and the Supreme Court, the same will be against the basic structure or the basic feature of the Constitution and accordingly it is void. Where two constructions are possible, that one should be adopted which would ensure smooth and harmonious working of the Constitution and eschew that which will lead to absurdity or give rise to practical incorivenience or make well-established provisions of existing law nugatory. It is settled principle of law of interpretation that where two alternative constructions are possible, the court must choose the one which will be in accordance with the other parts of the statute and ensure its smooth and harmonious working, and eschew the other which leads to absurdity, confusion or friction, contraction and conflict between its various provisions or undermines or tends to defeat or destroy the basic scheme and purpose of the enactment. It has been held in Chief Justice of Andhra Pradesh v. L.V.A Dixitulu, AIR 1979 SC 193, that these canons of construction apply to the Constitution with greater force. Accordingly we hold that where the constitutional validity of any statute, Rule or notification is challenged, the High Court can scrutinise the same by exercising its power of judicial review under Arts. 226 and 227 of the Constitution. In Mohinder Singh's case (AIR 1978 SC 851) (supra), the Constitutional validity of any statute, Rule or Notification was not the subject-matter of challenge. Therefore, the facts of that decision are entirely different from the facts of the present case.

20. Sri S. Ramachandar Rao, the learned counsel for the petitioner contended that non-declaration of result after signature on Form No. 17 on 27-6-1995 and the undertaking of recounting in pursuance of the notification issued by the 1st respondent are in utter violation of the statutory Rules framed under the Act governing elections and that therefore the notification may be struck down as unconstitutional and ultra vires the Rules and the Election Officer may be directed to declare the results as per the entries made in Form No. 17 on 27-6-1995.

21. Sri E. Manohar, the learned counsel for the 1st respondent, contended that the 1st respondent is empowered to issue notification with regard to recounting, that nothing is illegal in ordering recounting by the 1st respondent and that the recounting was properly undertaken.

22. The Legislature of Andhra Pradesh enacted the Andhra Pradesh Panchayat Raj Act, 1994, hereinafter referred to as ‘the Act’, providing for constitution of the Members or Chair-persons of Gram Panchayats, preparation and publication of electoral rolls, election of Members and Sarpanch of Gram Panchayats, reservation of seats, qualifications for the candidates, disqualifications, powers conferred on Sarpanchs, etc. The Rules relating to the Andhra Pradesh Panchayat Raj (Conduct of Elections of Members and Sarpanch of Gram Panchayats. Members of Mandal Parishads and Members of Zilla Parishads) of 1994 were framed by virtue of the power conferred under Sec. 268 of the Act. Rule 32 of the Rules provides for scrutiny of opening of ballot boxes and counting of votes. Rule 34 provides for rejection of ballot papers by the Election Officer. Sub-rule (1) of Rule 35 provides that after the announcement made under sub-rule (7) of Rule 34, a candidate or his election agent may apply in writing to the Election Officer for recounting of the votes either wholly or in part stating the grounds on which he demands the recount and on such application being made, the Election Officer shall decide the matter and may allow or reject it. As per sub-rule (4) of Rule 35, if the Election Officer decides to allow a recount of the votes, he shall arrange for the recounting in accordance with Rules 32 and 34, amend the result sheet in Form 17 to the extent necessary after such recount and announce the amendments so made by him. Sub-rule (5) of Rule 35 says that votes polled by each candidate has been announced under sub-rule (4) the Election Officer shall complete and sign the Result Sheet in Form 17 and no application for further recount shall be entertained thereafter. As per Rule 37, if any disturbances occur at the time of counting of votes, the Election Officer shall forthwith report the matter to the Election Authority. After entering the votes of the candidates and invalid votes in Form 17, the Election Officer shall declare the results in Form 18 and supply result sheet copies in Form 17 to the contesting candidates on payment of fee.

23. According to the above Rules, after counting is over the duty of the Election Officer is to enter the results of counting in Form 17 stating the votes polled by each candidate. If any candidate is aggrieved by such counting, he has to immediately file a written petition to the Election Officer. As per Rule 35(5), after the total number of votes polled by each candidate has been announced, the Election Officer shall complete and sign Form 17 and no application for a further or second recount shall be entertained. The request for recounting must be made immediately after signing of Form No. 17 by the Election Officer and before further proceedings are taken up. If no such application for recounting is made, the Election Officer may declare the result in Form No. 18. In the present case, the record does not show that any such petition has been filed before the Election Officer requesting for recounting. The fourth respondent alleged that she filed a petition before the first respondent on 29-6-1995 i.e, after two days of signing of Form No. 17 and the first respondent on receipt of so many applications issued notification dated 26-7-199,5 directing the Election Officers to undertake recounting wherever the margin of victory is less than 1% of the total polled votes. In pursuance of the said direction, recounting was undertaken on 21-10-1995 and the petitioner got 510 votes, the fourth respondent got 513 votes, 42 were invalid votes and 7 votes were found missing. In he first counting, the petitioner got 512 votes and the fourth respondent got 509 votes.

24. Sri S. Ramachandar Rao, the learned counsel for the petitioner, contended that the fourth respondent did not file any petition before the Election Officer requesting for recounting of votes, that as no petition for recounting was made the results ought to have been declared and that the remedy available to aggrieved party is only by way of election petition.

25. As per the Rules, the power is conferred on the Election Officer either to order or refuse recounting of votes. This power is not conferred on any other authority, except in cases where disturbances occur and the Election Officer intimates the matter to the Election authority. Then it will be open to the Election authority to interfere and take action according to Rule 37. Once Form No. 17 is signed and no application for recounting is made to the Election Officer, the only course open is to declare the result. In all these matters, results were not declared in view of stay granted by this Court and also subsequent Supreme Court orders in the other batch of cases. Otherwise, results would have been declared as per the entries made in Form No. 17 on 27-6-1995.

26. It is a fact that Article 243(K) and Section 201 of the Panchayat Raj Act empower the Election Commissioner to supervise and control all election to the Panchayat Raj Institutions and to issue directions in that regard. The powers conferred on the Election Commissioner are subject to the provisions of the Act and the Rules framed by the State Legislature.

27. Article 243(K) is analogous to Article 324 of the Constitution, which deals with elections of Members of Parliament and Members of State Legislatures. Sub-clause (4) of Article 243(K) is analogous to Article 328 of the Constitution. Article 243(o) corresponds to the Article 329 of the Constitution. The powers of the Election Commissioner under Art. 324 of the Constitution were considered by the Supreme Court in A.C Jose v. Sivan Pillai, AIR 1984 SC 921. That was a case wherein voting in Assembly elections to Parur Constituency was held manually and by electronic machines. Voting machines were used for casting of votes pursuant to the notification issued by the Election Commissioner under Art. 324 of the Constitution even after the Government of India refused to accord sanction for using electronic machines in voting. When the notification of the Election Commissioner was challenged, the High Court upheld the validity of voting by machine and election of the respondent to the Assembly seat. Considering the powers of the Election Commissioner under Art. 324 of the Constitution and in the facts and circumstances of that case it was held (paras 20, 21 and 22):

“The pointed and pungent observations, extracted above [i.e, from N.P Ponnuswami's case, AIR 1952 SC 64] really amount to a Bible of the election law as culled out from an interpretation of the provisions of Arts. 324 to 329 of the Constitution, and were referred to with approval even in Mohinder Singh Gill's case (AIR 1978 SC 851) (supra)………. Indeed, if we were to accept the contention of the respondents it would convert the Commission into an absolute despot in the field of election so as to give directions regarding the mode and manner of elections by-passing the provisions of the Act and the Rules purporting to exercise powers under cover of Art. 324. If the Commission is armed with such unlimited and arbitrary powers and if it ever happens that the person manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system………

… Hence we must construe Arts. 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Arts. 324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Article 324 relating to superintendence, direction and control was actually vesting of merely all the executive powers and not the legislative powers.”

The Supreme Court, thus, held the order of the Commission directing casting of votes by mechanical process is without jurisdiction. The proposition laid down in the above cited decision squarely applies to the powers of State Election Commissioner under Article 243(K) of the Constitution.

28. In the present case, Rules 34, 35 and 37 specifically provide that the Election Officer alone is the authority to order recounting and conducting recounting of votes. Without there being any reference under Rule 37, if the Election authority or the Election Commissioner exercise its powers, it amounts to usurping the powers conferred on the Election Officer which will be contrary to the Rules and the provisions of the Act. It is settled principle of law that where the field is occupied by a legislation, executive directions cannot be issued. In the present case, the Rules are complete code of recounting as provisions relating to recounting and procedure for recounting are made explicit. Therefore, the directions issued by the first respondent, vide impugned notification, are beyond his constitutional and statutory power and are accordingly ultra vires the provisions of the Act and the Rules.

29. The learned counsel for the first respondent, Sri E. Manohar, contended that since the Rules have not provided as to when and under what circumstances the recounting has to be made, the first respondent has residuary power and could issue the impugned notification.

30. It is to be noticed that the Rules are clear, to the effect, that immediately after Form 17 is signed, the aggrieved party has to file written petition mentioning the grounds for recounting and the power is conferred on the Election Officer to consider said petition by applying his mind and then pass a reasoned order. Thus, the power and discretion is given to the Election Officer to decide whether to accept or reject the request of recounting. In case, grounds raised by the aggrieved party make out a case for recounting, the Election Officer has to take a decision for recounting. Otherwise, he can reject the request. Therefore, it cannot be said that no guidelines for ordering recounting are provided in the rules. We, accordingly, see no force in the contention of the learned counsel for the first respondent.

31. It is contended by the learned counsel for the first respondent that the constitutional validity of the notification issued by the first respondent cannot be decided in this writ petition because it is not challenged by the petitioner.

32. In the affidavit filed in support of the writ petition, the petitioner specifically alleged that the recounting conducted was illegal and sought for further recounting. In the counter-affidavit filed by the first respondent, it is specifically pleaded in paragraph 7 that recounting was made on 21-10-1995 as per the directions of the Election Commissioner. This is the defence that recounting was made in pursuance of the notification issued by the Election Commissioner. When an act is defended on the basis of the notification, the question that arises is whether such notification is a valid one or not. The High Court while considering the rival contentions of the parties has always got the power to decide whether the said notification is valid or not, particularly when its constitutional validity is challenged. In this case, as stated supra, the notification is beyond the constitutional and statutory power of the Election Commissioner and therefore the constitutional validity of the said notification can be gone into when the same is taken as the base of defence to support the recounting made by the authority.

33. It is further contended by the learned counsel for the first respondent that the petitioner can as well file an election petition before the Election Tribunal raising the grounds that are now raised in the writ petition.

34. According to sub-rule (2) of Rule 2 of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995, the Election Tribunal shall be the District Munsiff having territorial jurisdiction over the place in which the office of Gram Panchayat is located in respect of the election of Members, Sarpanchas and Upa-Sarpanchas of Gram Panchayat. As per Rule 12 of the said Rules, the Election Tribunal shall declare the election of the Returned Candidate to be void if in its opinion the Returned candidate was not qualified or disqualified on the date of his election or has committed any corrupt practice as laid down under Sec. 211 of the Act, or that any nomination has been improperly rejected or that the result of the election of returned candidate has been materially affected. The Election Tribunal is not competent to decide the constitutional validity of the notification issued by the Election Commission, which is a constitutional authority. If it has to be held that the Constitutional Courts do not have the power of judicial review, the aggrieved party will be left without any remedy and the same is against the rule of law, which is basic form of democratic Government. No other Court, except the High Courts and the Supreme Court, are conferred with the power of judicial review. Even the Civil Court cannot decide the constitutional validity of any statute or rules and it has to refer the same to the High Court according the provisions of Civil Procedure Code. We are, therefore, not able to agree with the learned counsel for the first respondent.

35. The learned counsel for the first respondent, lastly, contended that the petitioner has not objected to the recounting conducted on 21-10-1995, that the prayer of the writ petition is to give directions to undertake recounting again and that therefore the writ petition is not maintainable as there cannot be recounting for the second time.

36. The petitioner is a woman and notice was given to attend for recounting and she was forced to attend recounting. Otherwise, recounting would have been done in her absence. Merely because the petitioner attended recounting process, her right to challenge the constitutional validity of the notification has not been taken away. The decision reported in S. Venkatareddy v. V. Ramulu, AIR 1984 Andh Pra 298, upon which the learned counsel for the first respondent sought to place reliance, is not applicable to the facts of the present case as in that case the counsel for respondent No. 1 endorsed on the application filed in election petition that he has no objection for recounting of votes. Further, the first respondent is not competent to order recpunting as he has no power to interfere through the notification, more so, when the matter is not referred to him as provided in Rule 37. The impugned notification has not been gazetted and nobody has got knowledge about the notification. Before issuance of the impugned notification, no notice was given to the petitioner. It is the notification that virtually upset the result recorded by the Election Officer in Form No. 17. Once the result sheet in Form 17 is signed by the Election Officer and no petition to recbunt is submitted, the election process of counting is completed and the question of recounting of votes does not arise, except as provided in Rules 37 and 45. In the present case, the matter was not referred to as provided in Rule 37 or 45. Therefore, the only course left open was to declare the results. If any candidate is aggrieved, his remedy is to approach the Election Tribunal.

37. Coming to the facts of the present case, when recounting of votes was held on 21-10-1995 pursuant to the impugned notification, out of 1072 votes polled 7 votes were found missing. There is no explanation as to how 7 votes were found to be missing at recounting. When recounting was undertaken in pursuance of notification issued, which is beyond the Rules and Constitutional provisions, that exercise itself is arbitrary. Present incidence itself is a glaring example. There is any amount of necessity to curb such exercise of arbitrary action.

38. In view of the above discussion, we declare that the Notification No. 531.SEC-B/95-3 dated 26-7-1995 issued by the 1st respondent is unconstitutional and ultra vires the rules and that the consequential recounting made on 28-10-1995 in respect of election to the office of Sarpanch of Mangalagiripaud Gram Panchayat is also declared as illegal and void. Accordingly, we direct the Election Officer to publish the results basing on the entries made in Form No. 17 on 27-6-1995. It is open to the aggrieved party to approach the Election Tribunal challenging such declaration by election petition.

39. In the result, the writ petition is allowed as indicated above. There will be no order as to costs.

40. Mr. F. Manohar, learned counsel appearing for the 1st respondent requests to grant special leave to the Supreme Court.

41. We have relied on the Supreme Court judgments and allowed the writ petition. Therefore, we see no ground to grant leave, as no substantial question of law of general importance involves in this case, which requires for a decision of the Supreme Court.

42. The request is, therefore, rejected.

Petition allowed.