JUDGMENT
Ar. Lakshmanan, J.
1. Aggrieved by the order passed by the learned single Judge of this Court dated 2-4-2002 in writ petition No. 24834 of 2001 the writ petitioner preferred this appeal questioning the correctness and legality of the same.
2. According to the learned counsel for the appellant Sri E.V. Bhagiratha Rao the learned Judge should have held that EOP. No. 7 of 2001 filed by the 2nd respondent herein under Section 233 read with G.O.Ms. No. 111 Panchayat Raj RD&R (Election III) Department, dated 3-3-1995 against the writ petitioner is not maintainable in law. In the instant case the 2nd respondent filed EOP. No. 7 of 2001 to declare the election of the appellant as sarpanch of the Talarlapalli gram Panchayat as illegal for the reason that the appellant had incurred disqualification under Section 19 (3) of the A.P. Panchayat Raj Act, 1994 (hereinafter referred to as ‘the Act’) as she had three children by the date of commencement of the Act on 2-5-1994 and to declare the 2nd respondent elected as sarpanch. It is further submitted by Sri E.V. Bhagiratha Rao that when an elected member or sarpanch incurs disqualification under Sections 17 to 20 of the Act the remedy of the aggrieved party is to file a petition under Section 22 of the Act before the executive authority who in turn would follow the procedure envisaged under the said provision. Thus, it is submitted that the learned Judge should have noticed that the 2nd respondent without exhausting the mandatory procedure contemplated under Section 22 of the Act for the alleged disqualification under Section 19 (3) of the Act, filed EOP No. 7 of 2001 to set aside election of the appellant and to declare her as duly elected. It is the further contention of the learned counsel that the Act does not make any distinction between pre and post election disqualifications except enumerating the disqualifications under Sections 17 to 20 of the Act and the corrupt practices under Sections 19A, 19B and 211 of the Act and that Sections 22 and 233 read with G.O.Ms. No. 111 deal with disqualification on grounds of corrupt practices of different types and operate in different fields and one remedy is not a substitute for the other remedy. Inviting our attention to Article 243-F of the Constitution of India the learned counsel submitted that if there is any disqualification for being chosen as a member of the Panchayat the said question shall be referred for the decision of such authority and in such manner as the legislature of the State by law provide. Thus it is submitted that the disqualification of the appellant before the election under Section 19 (3) of the Act has to be referred under Section 22 of the Act for a decision following the procedure thereunder but cannot be the subject matter of an election petition under Section 233 read with G.O.Ms. No. 111.
3. The learned counsel for the 2nd respondent submitted that as per Section 233 of the Act no election held under the 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. Likewise, sub-clause (b) of Article 243-O of the Constitution of India stipulates a bar that no election shall be called in question except by way of an election petition presented to the prescribed authority. While that is so, the above bar applies only to an election held under the Act and the Rules i.e., an election which has been held within jurisdiction by the election officer or other prescribed authority.
4. The contention raised by the learned counsel for the 2nd respondent merits acceptance. In our view, the High Court cannot interfere with the conduct of the election which commences from the date of notification and ends with the declaration of results and it is only the election tribunal which has the jurisdiction to go into the election dispute. Even where there is violation of the provisions of the Act or the Rules the remedy of the candidate in election dispute lies only before the election tribunal created under the Act and the Rules. In this context we may usefully refer to rule 12 (d)(iv) of the A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995. The said rule is reproduced hereunder for the sake of convenience:
If in the opinion of the Election Tribunal,
(a) ….
(b) ….
(c) ….
(d) that the result of the election, in so far as it concerns a Returned Candidate has been materially affected,
….
(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.
5. As per rule 12 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 was disqualified on the date of his election, or has committed any corrupt practice as laid down under Section 211 of the Act or any nomination has been improperly rejected, or that the result of the election, in so far as it concerns a returned candidate has been materially affected.
6. Therefore, the election tribunal is the only forum which can decide the disputes raised under the provisions of the Panchayat Raj Act and no other Court has any jurisdiction to decide the election dispute except the High Court and the Supreme Court which are conferred with the power of judicial review. We may refer to the judgment of a Division Bench of the Rajasthan High Court comprising (Dr. AR. Lakshmanan, CJ & A.K. Parihar, J) in Civil Special Appeal (Writ) No. 1029 of 2000, dated 19-12-2000. The said case arose under the provisions of the Rajasthan Panchayat Raj Act, 1993. In that case the appellant filed a writ petition before the High Court challenging the election of the 3rd respondent therein to the post of sarpanch on the ground of fundamental deficiencies in election procedure and the illegality committed by the returning officer. The writ petition was dismissed by the learned single Judge on the ground that it is not maintainable in terms of Section 243-O(b) of the Rajasthan Panchayat Raj Act inasmuch as the election of the sarpanch can only be challenged by filing election petition and the same is also provided under Article 243-O(b) of the Constitution of India. Being aggrieved a special appeal was filed before the Division Bench. The Division Bench, after considering the rival submissions made the following order:
We are unable to countenance the submissions made by the learned counsel for the appellant. The Hon’ble Supreme Court in the case of N.P.PONNUSWAMY v THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM, has held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. The same view was taken by a Division Bench of this court in the case of O.P.GUPTA v UNION OF INDIA and the Division Bench held that a writ petition seeking directions against the Returning Officer in the matter of election of Associated Bank Officers Association is not maintainable since the Returning Officer is not a statutory authority but an ordinary person. This Court further held that a writ petition questioning the election of an Association of the Bank Officer is a matter of internal management of the Association wherein no fundamental or legal right of the petitioner is involved and consequently he cannot invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. This Court disposed of the above matter by following a recent ruling of the Supreme Court which has interpreted the term ‘election’ to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result and that no election to either House of Parliament or either House of the Legislature of a State shall be called in question except by an Election Petition presented by such authority and in such manner as may be provided for by or under any law by the appropriate Legislature. The Supreme Court has further observed that if an election is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner the invoking of judicial remedy by writ petition has to be postponed till after completing of proceedings in an election.
7. In the instant case, it is contended that the mandatory provisions of the Panchayat Raj Election Rules 1994 were not followed and, therefore, the election under challenge became void ab initio. As such, the appellant had every right to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In our opinion, this cannot be a ground for maintaining a writ petition in this Court. If there is any ground relating to non-compliance of the provisions of the Panchayat Raj Elections Rules on which the validity of an election process could be questioned, the appellant, who is also a candidate in the election, can question the same by filing an Election Petition. It is now represented that the election is over and the counting is also over so also the declaration of the names of successful candidates has also been made. Under such circumstances, the appellant cannot maintain the writ petition in this court and, he may raise an election dispute before the Election Tribunal as provided in the Panchayat Raj Elections Act and the Rules made thereunder. The result was declared on 31-1-2000. The writ petition was filed on 16-3-2000 and was disposed of by this court on 1-8-2000. The Special Appeal was filed on 2-9-2000. Therefore, the time taken by the appellant in filing the writ petition and the special appeal has to be excluded while computing the period of limitation in filing the Election Petition. The appellant shall file an application for condonation of delay in filing the election petition by explaining the reasons and if the Election Petition along with such an application for condonation of delay is filed, the Election Tribunal shall consider the same and permit the appellant to prosecute the same.
8. The Division Bench of the Rajasthan High Court in arriving at the said conclusion has followed the judgments of the Hon’ble Supreme Court reported in N.P.PONNUSWAMI v THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALEM, AIR (39) 1952 SC 64 RLJ 2000 (3) 225
and O.P.GUPTA v UNION OF INDIA, , . Similar view has been taken by the Hon’ble Supreme Court in the judgments reported in ELECTION COMMISSION OF INDIA v ASHOK KUMAR1 and S.S.S. J.S. (M.M.) S.D.U., SANSTHA v STATE OF MAHARASHTRA2 while considering identical provisions. We are in respectful agreement with the view expressed by the Rajasthan Bench and dismiss this writ appeal in view of the opinion expressed by the Hon’ble Supreme Court in the cases referred to in this judgment.
9. The election petition is pending. It appears the appellant has not filed her counter-affidavit in the election petition. It is open to the appellant herein to file her counter-affidavit in the election petition and contest the matter in accordance with law.