JUDGMENT
1. At the interlocutory stage, both the parties consented final adjudication of the matter.
2. The writ petition is filed questioning the Election Notification bearing Roc. No.E1/1359/99, dated 17-5-1999 issued by the first respondent notifying schedule of conduct of election to the post of Sarpanch of Thoomkunta Gram Panchayat of Shamirpet Mandal, R.R. District as illegal and contrary to the Rules viz., A.P. Panchayat Raj (Conduct of Election) Rules, 1994.
3. The petitioner is aggrieved by the Note in the said Notification which is as follows :
“As per the direction of the Hon’ble High Court in WP No.24549 of 1996, dated 24-4-1998 Sri Sadanand Yadav (Petitioner in the said WP) and Sri Y. Suresh (respondent No.2 in the said WP) stand nominated to the Office of Sarpanch. The Election Officer may also receive fresh nominations from other contestants, if any.”
4. It is submitted by the learned Counsel for the petitioner that one Sadanand Yadav was the elected Sarpanch of Thoomkunta Gram Panchayat of Shamirpet Mandal, R.R. District in the election held on 30-6-1995. The fifth respondent herein, filed OP No.2 of 1995 challenging the said election before the Election Tribunal which declared the said election as null and void and directed fresh election-vide orders dated 8-11-1996. Questioning the same Sadanand Yadav filed Writ Petition No.24549 of 1996 which was dismissed by a Division Bench of this Court vide judgment
dated 24-4-1998, the operative portion of which is as follows :
“Accordingly, the Official respondents are directed to hold election afresh to the Office of the Sarpanch of Thoomkunta (V), Shamirpet Mandal, R.R. District by the end of June, 1998 positively by making use of the nominations filed by the writ petitioner and the second respondent in WP No.24549 of 1996.”
Questioning the same, the matter has been carried to the Hon’ble Supreme Court by way of SLP, which was also dismissed at the admission stage. Accordingly, the judgment of the High Court has become final and pursuant to the same, the first respondent in this writ petition has issued Election Notification dated 17-5-1999. The writ petitioner has also filed nomination along with respondents 5 to 7 for the post of Sarpanch. The petitioner filed objection petition on 1-6-1999 before respondent No. 4, Election Officer, along with documentary evidence under the cover of acknowledgment, while marking copies to the respondents 1 and 2 and Divisional Panchayat Officer. In this background the contention of the writ petitioner is that the fourth respondent having received the objection petition, is under legal obligation to dispose of the same before commencement of election itself but has not passed any order till today. Aggrieved by the said inaction on the part of the fourth respondent, the writ petitioner preferred appeal before the third respondent on 2-6-1999. The contention of the petitioner is that the respondent No.4 shall decide the objection petition filed by him by conducting a summary enquiry as contemplated under Rule 9(2) of the A.P. Panchayat Raj (Conduct of Election) Rules, 1994 – hereinafter called ‘the Rules’.
5. Further, the contention of the petitioner is that the respondents 5 and 6 are suffering from clear disqualification, by having more than two children, as contemplated under Section 19(3) of A.P. Panchayat Raj Act, 1994-hereinafter called ‘the Act’.
6. The present disputed Notification dated 17-5-1999 notifying the election schedule is as under :
“Filing of Nominations
:
28-5-1999 to 31-5-1999
Scrutiny of Nominations
:
1-6-1999
Appeal before Divisional Officer against the rejection of nominations
:
2-6-1999
Disposal of appeal by Divisional Officer
:
3-6-1999
Withdrawal of Nominations
:
4-6-1999
Publications of final list of contesting candidates
:
4-6-1999
Date of Poll
:
11-6-1999
Date of counting
:
11-6-1999
Date of Declaration of results
:
Soon after the completion of counting votes.”
7. The objection petition was filed by the writ petitioner before the fourth respondent on 1-6-1999. Now the contention of the writ petitioner is that such petition ought to have been decided after conducting an enquiry as contemplated under Rule 9(2) and (3) of the Rules which are as follows:
“9 (2) The Election Officer shall then
examine the nomination papers and shall decide on all objections which may be made at the time to any nomination and may either on such objection or on his own motion after such summary enquiry as he thinks necessary, reject any nomination on any of the following grounds; namely,
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9 (3) The Election Officer shall endorse on each nomination paper, his decision, accepting or rejecting the same, and, if the nomination paper is rejected, he shall record in writing brief statement of his reasons for such rejection. The scrutiny shall as far as practicable, be completed on the date appointed in this behalf under Rule 4 and no adjournment of the proceedings shall ordinarily be permissible except to provide an opportunity to a candidate to rebut any contentions raised against his candidature.”
8. Therefore, Sri C. Malla Reddy, learned senior Advocate appearing for the writ petitioner contends that since the procedure contemplated under the above said provisions is not compiled with, the election schedule cannot be permitted to proceed.
9. Respondent No.5 filed his counter-affidavit. The contention of the learned Counsel for the fifth respondent is that no objections were raised by the writ petitioner against the fifth respondent in the year 1995 at the time of initial notification and that the nomination of the fifth respondent was treated as valid. Further, this Court in its judgment in Writ Petition No.24549 of 1996 dated 24-4-1998 directed that the nominations filed earlier shall be made use of. With regard to the objection of the writ petitioner that he is disqualified as per the provisions of the Act on account of having a third child, it is submitted that the third child was born during the exempted period under Section 19 of the Act and that was the reason why no objection was taken at that time. He further submits that the present objection raised by the writ petitioner with regard to the validity of his nomination was inspite of the orders of this Court and that the nominations filed in the year 1995 were upheld by this Court. Therefore, the only alternative for the writ petitioner is to challenge the results of the election if he is aggrieved, before the Election Tribunal by way of filing an Election Petition since Article 243(O) of the Constitution of India bars challenge of election to the Panchayat in any manner except by way of filing an Election Petition. Hence, the writ petition is not maintainable.
10. It is his further submission that the pole has taken place on 11-6-1999. Out of 2000 votes polled, he secured 1357 votes whereas the writ petitioner secured 589 votes and on account of the interim orders granted by this Court, the result of the election could not be announced and the remaining term of office is also very short.
11. Respondents 1 to 3 have also contended in their counter-affidavit that the question or objection raised by the writ petitioner both before the election authorities and this Court are pure questions of fact, and hence, the only remedy available to the writ petitioner is by way of an election petition before the Tribunal after completion of the election process and declaration of the result. It is submitted that, to that effect a clarification was also issued by the State Election Commission and communicated to the Election Officer through Proceedings Roc. No.E1/1359/99 dated 1-6-1999, and accordingly, the nomination of the fifth respondent was not rejected at that stage. It is further submitted that the question of fifth respondent having more than two children requires detailed open enquiry by giving opportunity to the person involved therein. Therefore, it is contended that the writ petition is not maintainable.
12. From the above submissions, the only point that arises for consideration is, whether the writ peiition is maintainable in view of the fats of the case narrated by both parties and in fact, all the learned Counsels expressed consensus in this regard.
13. The relevant provisions in this regard are Section 233 of the A.P. Panchayat Raj Act, 1994 and Articles 243(K) and 243(O)(b) of the Constitution of India, which are extracted hereunder for better appreciation.
“A.P. Panchayat Raj Act, 1994 :
Section 233 : Election Petitions :–
No election held under this Act shall be called in question except by an election petition presented to such authority and in accordance with such rules as may be made in this behalf.
The Constitution of India :
Article 243(K) : Elections 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 Slate Election Commissioner to be appointed by the Governor.
Article 243(O) : Bar to Interference by Courts in Electoral matters :
(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.”
14. A conjoint reading of the above said provisions reveals that the State Election Commission is the controlling authority of the elections to the Panchayats and no election to any such Panchayat shall be called in question except by way of filing an election petition before the authority prescribed and in such manner as is provided under the relevant law made by the Legislature of the State.
15. In this regard, it is necessary to refer to the judgment rendered by the Apex Court in Boddula Krishnaiah v. State Election Commissioner, Andhra Pradesh .
16. In that case, the electoral rolls of the Gram Panchayat were required to be finalised 30 days prior to the poll. It appears that in the draft roll prepared by the competent authority, some names which find place were deleted later. In a writ petition filed in that context an interim direction to allow all those persons to participate in the election was granted. Subsequently, a direction was issued by the High Court not to declare the result of the said election and by virtue of subsequent orders passed by the High Court it was found that only 20 persons were eligible to be included in the voters list and on that basis the said 20 persons were found eligible to vote and were allowed to participate in the election. While dealing with the said case, their Lordships having discussed the earlier decisions rendered by the Supreme Court held thus :
“Article 243(O) of the Constitution envisages bar on interference by Courts in election matters. Notwithstanding anything contained in the Constitution, under sub-clause (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.” Thus there is a Constitutional Bar on interference with the election process except by an election petition, presented to an Election Tribunal as may be made by or under law by the competent Legislature and in the manner provided thereunder. Power of the Court granting stay of the election process is no longer res integra.”
With the above observation, their Lordships directed the contesting parties to seek remedy
by way of an Election Petition as provided under the Act and the Rules.
17. On the other hand, the learned
senior Advocate appearing on behalf of the writ petition relies on a judgment of the Supreme Court in K. Venkatachalam v. A. Swamickan, 1999 (3) Scale 12. In the said case the election of a member of the Legislative Assembly was questioned on the ground that he was not qualified to sit as a member of the Legislative Assembly since it was found that the said member impersonated him for another person of the same name in the electoral rolls of the Assembly constiluency. The said fact was noticed after a long lapse of time. Since the said case has arisen under Articles 190(3) and 192(1) dealing with the disqualification of a member of the Legislative Assembly, their Lordships having discussed various judgments rendered by the Supreme Court earlier held thus :
“In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector from that constituency could represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution rtad with Section 5 of the Act which mandates that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislature Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified. Yet he sits and voles as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the’ appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law.”
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If in such circumstances, he is allowed to continue to sit and vote in the Assembly, his action would be fraud to the Constitution.”
It was further observed thus :
“In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkala Rao, , it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred lo by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violated of Constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will nol come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow
a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution?”
18. In the instant case it can be seen that while the election process has started and during such, process, certain objections have been raised about the disqualification against respondent No.5. At this juncture it is not out of place to state about the controversy regarding such disqualification attributed to respondent No.5. it was alleged that respondent No.5 having a third child is disqualified as per the provisions of the Act. The Birth Certificate issued by some authority was placed before the Election Officer white raising such objection. On the other hand, respondent No.5 relies on another Birth Certificate said to have been given by a competent authority by which it was argued that the plea of disqualification does not apply to him. This is a pure question of fact. This Court under Article 226 of the Constitution cannot go into the veracity of such statements of fact. In fact an enquiry has to be conducted by competent authority under the Act as and when objections are received in that regard.
19. A combined reading of the two decisions of the Supreme Court referred to above shows laying of two principles in particular. Firstly, normally when election process has been set in motion, the High Court in normal course is not justified in interfering with the election process by giving directions to the Election Officer to stall the process, as Article 243(O) of the Constitution envisages bar of interference by Courts in election matters, particularly under sub-clause (b) of Article 243(O), except by an Election Petition. Secondly, the High Court can exercise its jurisdiction under Article 226 of the Constitution as and when interference is warranted depending upon the circumstances. Therefore, it cannot be held that the High Court is barred from exercising its jurisdiction under Article 226 of the Constitution. Such a decision can be arrived at only having due regard to the facts and circumstances of each case.
20. Therefore, it has to be examined whether in the present set of facts and circumstances, Article 226 of the Constitution is the only remedy or the remedy under Section 233 of the Act viz., filing an Election Petition before the prescribed authority, is sufficient and effective.
21. In the case on hand, as was already pointed out. by virtue of the direction of the High Court, the election has been rescheduled. The fifth respondent had filed nomination of the first occasion and also a nominee in the present election process and an unserved objection was raised against him for the first time. The objection raised was with regard to disqualification at this length of time and the same is with regard to having a third child and the date and year of birth of the child of the fifth respondent is again a controversy which has to be decided by an authority prescribed under the Act. It is not as though no authority is prescribed under the Act and the writ petitioner had rightly objected before such authority and it appears that the said authority had already rejected the objection of the petitioner in the light of the clarification issued by the State Election Commission through a Fax Message No.1543/SEC-B/95 dated 1-6-1999, and a copy of the said circular has been communicated to the Election Officer, Gram Panchayat, Thoomkunta for necessary action vide Roc. No.E1/1359/99 dated 1-6-1999 and the Election Officer it appears has accordingly not rejected the nomination of the fifth respondent herein. Therefore, in view of this fact, it cannot be said that the procedure prescribed under the Rules has not been followed. In fact, as per G.O. Ms. No.111 dated 3-3-1995, the Election Tribunal can go into the question whether the returned candidate was qualified or was disqualified as on the date of his election.
22. In the case of K. Venkatachalam v. A. Swamickan, (supra), it was noticed that there was a deliberate impersonal ion by a member of Legislative Assembly for the purpose of getting elected and after long lapse of time the same has been noticed. In those set of facts, their Lordships held that Article 226 of the Constitution was available to the High Court and it was observed (hat when recourse cannot be had to the provisions of the Act, for appropriate relief, the High Court was justified in exercising its jurisdiction under Article 226 of the Constitution of India. For every valuation, including that of not following the prescribed procedure, in my view, cannot be questioned by invoking the extraordinary jurisdiction under Article 26 of the Constitution of India, except in cases where it is found that alternative remedy available under the Act is not effective nor can cure the defect.
23. In my view, in the circumstances referred to above already and particularly when questions of fact with regard to the veracity of the documents filed before the Election Authority is involved, which requires an enquiry under the Act, the only remedy available to the writ petitioner is to approach the Tribunal by filing an Election Petition. Therefore, I hold that this Court do not find sufficient reason which warrants interference in the election process.
24. Therefore, the writ petition has no merit and it is accordingly dismissed. Suffice it to say that the writ petitioner has liberty to approach appropriate forum under the Act, if he so desires. No costs.