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2006 DIGILAW 790 (AP)

SONTI SRINIVASA RAO v. BOINA LAKSHMI NARAYANA

2006-07-07

L.NARASIMHA REDDY

body2006
L. NARASIMHA REDDY, J. ( 1 ) THIS revision, under Article 227 of the Constitution of India, is filed assailing the very numbering of an Election Petition, presented in the Court of District Judge, Machilipatnam, against the petitioner herein. ( 2 ) IN the elections, held on 27. 9. 2005, for the Gudivada municipality, the petitioner and the 1st respondent herein contested from 27th Ward. The petitioner was declared elected. The 1st respondent is the defeated candidate, and the 2nd respondent is a voter from the said ward. They got issued a notice, as contemplated under Section 17 of the Andhra Pradesh municipalities Act, 1965, for short "the Act", to the Commissioner of Municipality, the 5th respondent herein, stating that the petitioner had three children, at the time of filing his nomination, and thereby he incurred disqualification, under Section 13-B of the act. Alleging that no action has been taken thereon, they filed an election petition, with a prayer to declare the election of the petitioner herein, as void. The same was registered and numbered as-O. P. No. 411 of 2005. ( 3 ) THE petitioner contends that Sections 13 to 17 of the Act, deal with the qualifications and disqualifications of members of the council, as well as the procedure to be followed, whenever any disqualification is noticed, and that by no stretch of imagination, section 17 can be treated as the basis for presenting an election petition. ( 4 ) THE learned counsel for the petitioner submits that when the subordinate legislature framed the Rules for decision on Election disputes (1967) (for short "the Rules"), in exercise of powers under section 326 of the Act, the presentation of election petitions and disposal thereof, there was no basis for the petitioner to file an election petition, under Section 17 of the Act, or for the Tribunal, to number it. ( 5 ) LEARNED counsel for the contesting respondents submits that the purpose underlying Section 17 of the Act, or the Rules, is only the adjudication of the disputes, relating to election, and no exception can be taken to the numbering of the Election Petition. Section 13 of the Act mandates that every person, whose name figures in the electoral roll of the Municipality, shall be entitled to be elected as a member, if he is not less than 21 years of age. Section 13 of the Act mandates that every person, whose name figures in the electoral roll of the Municipality, shall be entitled to be elected as a member, if he is not less than 21 years of age. As many as six sections are devoted to enumerate the circumstances that would bring about the disqualification to candidates, not only from being elected, but even to be discontinued from the elected office. Section 13-A mandates that if a person is disqualified from being elected to the Legislature of the state, the same would extend to the election to the Municipal council also. Section 13-B provides that a candidate, who has more children than two, shall be disqualified to be elected and would be liable to be discontinued from the office, as and when he incurs disqualification. The persons holding the office of profit in the Municipality, Central or State Governments are disqualified under Section 14. Section 15 contains a list of instances, such as, persons being of unsound mind, having been adjudicated as an insolvent, having an interest in contracts or works undertaken by the Municipality, etc. , resulting in disqualification. Section 16 deals exclusively with cessation of members from the office, if any of the circumstances enumerated thereunder exists. The persons who were convicted of election offences are disqualified from being elected, as per Section 19. Section 17 prescribes the procedure for adjudication of the questions, touching on disqualifications. Any voter or authority of the Municipality, is empowered to complain to the Commissioner of municipality in writing that, a person, who has been elected as a member, either did not possess the qualifications or had incurred the disqualification, as mentioned in Sections 13, 13-A, 13-B, 14, 16 or 19. Thereupon, it would be obligatory on the part of the commissioner, to place the matter before the Council. Depending on the nature of directions issued by the council or in the absence of such directions, with the approval of the Government, the commissioner is required to apply for decision by the District judge, on such allegations, as to disqualification. Thereupon, it would be obligatory on the part of the commissioner, to place the matter before the Council. Depending on the nature of directions issued by the council or in the absence of such directions, with the approval of the Government, the commissioner is required to apply for decision by the District judge, on such allegations, as to disqualification. The section reads as under:"district Judge to decide questions of disqualifications of members:- (1) Where an allegation is made by any voter or authority to the Commissioner in writing that any person who is elected as a member has not qualified or has become disqualified under section 13, Section 13-A, Section 13-B, Section 14, section 16 or Section 19 and the commissioner has given intimation of such allegation to the member and such member dispbtes the correctness of the allegation so made or where any member himself entertains any doubt whether or not he has become disqualified under any of those sections; a) Such member or any other member may, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be; and b) The Commissioner shall, either on the direction of the council or with the approval of the Government if no such direction is given within a period of two months from the date of placing of the matter by the Commissioner before the council, apply for a decision to the District Judge of the district in which the municipality is situated. (2) The said Judge, after making such inquiry, as he deems necessary, shall determine whether or not such person disqualified and his decision shall be final. (3) Pending such decision, the member shall be entitled to act, as if he was not disqualified. " ( 6 ) FROM a perusal of the section, it is evident that the only way through which proceedings can land before the Court of District judge, under Section 17 is through an application, made by the commissioner. The provision does not enable the complainant himself to approach the District Judge for adjudication. In case, there was any inaction or default, on the part of the Commissioner in taking necessary steps, contemplated under Section 13-A, the aggrieved party must have recourse to any remedy, to compel the commissioner to discharge his obligation. The provision does not enable the complainant himself to approach the District Judge for adjudication. In case, there was any inaction or default, on the part of the Commissioner in taking necessary steps, contemplated under Section 13-A, the aggrieved party must have recourse to any remedy, to compel the commissioner to discharge his obligation. The default on the part of the Commissioner does not confer right upon the complainant, to approach the District Judge. ( 7 ) IN exercise of powers under Section 326 of the Act, the government framed the Rules, prescribing the procedure for adjudication of the election disputes, in relation to members of the municipal Council. The Rules constitute almost a self-contained code. The manner in which the petition must be presented, the forum, which can adjudicate the disputes, the grounds on which the election of a returned candidate can be set aside, etc. , are provided for therein. The election petition is required to be filed within 15 days from the date of declaration of the result of the election. An Election Petition cannot be filed under Section 17 of the Act at all. ( 8 ) THE manner of initiation of proceedings, the parameters of adjudication and the outcome thereof in the proceedings initiated under Section 17 of the Act, on the one hand, and the Rules, on the other hand, are radically different from each other. There does not exist any scope fdr taking the one for the other. Therefore, the respondents 1 and 2 did not have the competence to approach the district Judge, with an application under Section 17 of the Act. Further, the Court of District Judge ought not to have entertained the election petition, for more reasons than one. Firstly, it is the Court of Subordinate Judge, which is conferred with the jurisdiction to decide the election petition under the rules. Secondly, even if there exists any possibility to try an application under Section 17, as an election petition, the fact remains that in the instant case, an application was presented on 23. 11. 2005, whereas, the results were declared on 26. 9. 2005. As observed earlier, the limitation prescribed under the Rules is 15 days, from the date of declaration of results. 11. 2005, whereas, the results were declared on 26. 9. 2005. As observed earlier, the limitation prescribed under the Rules is 15 days, from the date of declaration of results. It is settled principle of law that where law requires a thing to be done in a particular manner, it shall be in that manner, or not at all. ( 9 ) FOR the foregoing reasons, the C. R. P. is allowed, and it is held that the Court of District Judge, Machilipatnam, ought not to have received and numbered the Election petition. There shall be no order as to costs.