CH LAKSHMINARAYANA Vs. PRL SUBORDINATE JUDGE

JUDGEMENT

(1.) This writ petition is directed against the order of the Principal Subordinate Judge, Srikakulam holding that the Election Petition filed by the petitioner was not maintainable.

(2.) The Municipal Council of the Srikakulam Municipality had to co-opt two Councillors under Section 5 (v) of the A.P. Municipalities Act among the persons having special knowledge or experience in municipal administration. The 5th respondent published a notification on 1-4-1995 calling for applications. The petitioner as well as 11 others filed applications for being co-opted as Municipal Councillors. The first (sic. second) respondent scrutinised the applications and found that only five of them were qualified and placed the particulars of those five candidates including the petitioner before the Council. The notice and the agenda for the meeting scheduled to take place on 22-4-1995 was accompanied by an office note dated 10-4-1995 giving full details of all the applicants. At the meeting, by a voice vote, respondent Nos. 6 and 7 were co-opted. The petitioner filed a petition before the learned Subordinate Judge questioning the co-option as if it was an election. The respondents contended that the co-option is not an election and therefore, the election petition is not maintainable. The learned Principal Subordinate Judge accepted that contention and rejected the petition.

(3.) The petitioner has filed this writ petition to contend that even a co-option has to follow the pattern of election where there are more candidates than the number of posts, and therefore, the co-option should be considered as an election which can be contested by way of election petition. In the alternative, it was submitted that if the election petition is not maintainable, a writ petition was directly maintainable, questioning the procedure by which co-option was made on the ground that it was done in an arbitrary manner denying proper consideration of the application of the petitioner. It was also submitted that the 6th respondent was disqualified because he did not have required experience and respondent No.7 was disqualified because of arrears of property tax. Respondents 6 and 7 had filed counter-affidavits asserting that they are duly qualified. Respondent No.5 filed counter-affidavit to affirm that the proceedings were conducted duly conforming to the rules. The third party affidavit has also been filed by one of the Councillors stating that the Chairman announced that only two applications out of five eligible applicants were to be considered and the elected Councillors stated in one voice that they are selecting respondents 6 and 7, which was thereupon accepted unanimously and recorded in the minutes book.