Srinivasulu vs Government of Andhra Pradesh and Others

The parties have agreed for the final disposal of the writ petition itself.

In this writ petition, the petitioner questions the rejection of his nomination for the post of Sarpanch of Thatikonda Gram Panchayat, Bhoothpur Mandal, Mahabubnagar District.

It is urged before me by Mr. Malla Reddy, learned senior Counsel that the petitioner is presently working as inchargeSarpanch of the aforesaid Gram Panchayat on the resignation of the Sarpanch and the third respondent has issued an election notification for the post of the Sarpanch of the said Gram Panchayat on 1-6-1998 fixing the election schedule as under:

(i) Filing of nominations -- From 2-6-98to 8-6-98.

(ii) Scrutiny of nominations - 9-6-1998

(iii) Withdrawal of nominations - 12-6-98

(iv) Election - 29-6-98

He submits that the nomination of the petitioner for the post of Sarpanch has been improperly rejected by the third respondent on the ground that he is disqualified within the meaning of Section 19(3) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short ''the Act''). He also submits that he has questioned the validity of Section 19(3) of the Act. According to the learned Counsel, the third respondent-Election Officer has not held proper enquiry or given an opportunity to the petitioner to rebut the objections submitted by the other candidates, and as such, it violates the principles of natural justice. He lastly submits that the petitioner has already submitted a representation before the Government on 18-6-1998 for relaxation of the conditions u/s 19(3) of the Act by invoking the third proviso thereto which is still pending.

Mr. Malla Reddy, learned Counsel for the petitioner, relied upon a Full Bench decision of this Court in S. Fakruddin and another v. the Government of A.P. and others, 1995 (2) ALD 589, on the question of maintainability of the writ petition, wherein it is stated:

"The preponderance of the judicial opinion and the view of the Supreme Court as expressed in various pronouncements leave no doubt that notwithstanding the bar that the bar is to the ordinary jurisdiction of the Courts and not to the extraordinary jurisdiction under the Article 226 of the Constitution and Article 136 thereof. It isnot necessary for this Court, therefore, to pronounce that Article 243(0) is unconstitutional; simply it does take away the power of this Court under Article 226 of the Constitution to examine the validity of any law relating to the elections including the delimitation of the constituencies or the allotment of scats to such constituencies made or purporting to be made under Article 243 of the Constitution. As respects challenge to the election or any intermediary stage in case there is an alternative effective and independent mechanism provided the Court shall abstain to interfere except on jurisdictional errors i.e., when infirmity is based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. It will be so for the reason of prudence as well as deference to the legislation by the Parliament in exercise of its constituent power."

He also relies upon a Division Bench judgment of this Court in Sk. Khasim Bee v. State Election Commissioner, Hyd., 1996 (2) ALD 106, wherein it is held ;

"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 to the provisions of the Civil Procedure Code. It cannot, therefore, be contended that the petitioner can as well file an election petition."

Relying on the above decisions, Mr. Malla Reddy submits that the rejection of nomination filed by the petitioner can be questioned in the writ proceedings.

The learned Counsel appearing for the respondents repel the said contentions of the petitioner and submit that in this writ petition, the petitioner has not questioned the validity of sub-section (3) of Section 19 of the Act. The third respondent-Election Officer has rightly rejected the nomination of the petitioner as he has incurred disqualification during the pendency of being a member of the Gram Panchayat. The petitioner was elected member of the above Grain Panchayat in the elections held in the year 1995-96. The petitioner has not denied the factum of his having three living children. The birth of the third child took place at M. Sreeramulu Nursing Home and a copy of the birth certificate was filed with flic objections before the Election Officer and the Election Officer has specifically stated in the rejection order, which is filed at page No. 1 of the material papers, that the petitioner himself has accepted the objections. The third respondent did hold an enquiry and has given his finding and the allegation that the petitioner was not given an opportunity at the time of the enquiry is not correct. It is further submitted that the very fact that the petitioner has submitted a representation before the Government for relaxation of the condition u/s 19(3) of the Act and to remove the disqualification to contest as Sarpanch is itself ample proof that the petitioner suffers from the disqualification. It is lastly submitted that the writ petition filed by the petitioner is not maintainable; that the petitioner has to question the rejection order in an election petition and that once the election process has begun, Courts should not stay the election process. Moreover, a right of appeal is provided under the relevant rules.

Though Mr. Malla Reddy, learned senior Counsel for the petitioner, has submitted that he is questioning the validity of Section 19(3) of the Act, but on a perusal of the writ petition as well as the prayer in the writ affidavit, it is clear that the petitioner has not questioned the validity of Section 19(3) of the Act. The petitioner has merely sought adeclaration that the rejection of his nomination for the post of Sarpanch of Thatikonda Gram Panchayat by the impugned proceedings dated 9-6-1998 by the third respondent is illegal, arbitrary, unconstitutional etc. In the absence of challenging the validity of Section 19(3) of the Act, this Court need not examine the same in this writ petition. It is further brought to my notice that the Division Bench judgment of this Court in Sk. Khasim Bee v. State Election Commissioner, Hyd., (supra) has been reversed by the Apex Court and it held that since statutory remedy of filing the election petition has been provided it would be appropriate that the Tribunal goes into the legality or otherwise of the declaration of some votes as invalid and of recounting as alleged in this case. Under these circumstances, the Apex Court declined to interfere with the result of the declaration, and 30 days time was granted to the respondent in that case to file election petition before the Election Tribunal. In view of the said decision of the Apex Court, the judgment of the High Court stands reversed and the writ petition dismissed.

Further, it is noticed that the petitioner has not denied having suffered disqualification within the teeth of Section 19(3) of the Act. The very fact of his submission of representation to the Government on 18-6-1998 for granting exemption from the disqualification itself speaks to it. Though the petitioner has filed the said representation before the Government after rejection of his nomination papers for the post of Sarpanch, in paragraph 8 of the writ affidavit, he lias accepted the fact of a third child bom to him, and in the impugned order itself, the third respondent has clearly stated that the candidate himself has accepted that the objection is correct by which it is established that the petitioner is having three living children at the relevant time of the election to the post ofSarpanch. Having accepted that he has already incurred the disqualification u/s 19(3) of the Act, it cannot be said that the petitioner was not given an opportunityto meet the objections raised by the other candidates at the time of scrutiny of the nominations.

With regard to the pendency of the representation of the petitioner with the Government for granting exemption from the disqualification u/s 19(3) of the Act, it must be stated that the petitioner cannot have the benefit of the decision of the representation as the same has been filed after the rejection of his nomination by the third respondent on 9-6-1998.

A three Bench judgment of the Supreme Court in Boddula Krishnaiah and another Vs. State Election Commissioner, A.P. and others, , held as under:

"Once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. The present dispute is covered by an election dispute and remedy is thus available at law for redressal. Under these circumstances the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. However, this order will not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, to seek remedy by way of an election petition as provided in the Act and the rules."

In view of the above judgment, in the instant case, I hold that when the nomination of the petitioner for the post ofSarpanch has been rejected, the petitioner can approach the Election Tribunal under Rule 12(c) of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 and as per G.O. Ms. No.279, Panchayat Raj, Rural Development and Relief (Elec.III) Department, dated 19-5-1995 under Rule 4 sub-rule (5)(i)(bb), the petitioner has right of appeal against the rejection of his nomination.

As in this case the election process has been set in motion, it would not be justified to interfere with the election process.

Accordingly, the writ petition lacks merits and the same is dismissed. However, the petitioner has right to file an appeal and also approach the Election Tribunal, if so advised.

The interim orders passed by this Court in WP MP No.20827 of 1998, dated 25-6-1998 shall stand vacated. No costs.