RAGIBOYINA BHULAKSHMI Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(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.