THE HONOURABLE SRI JUSTICE V.ESWARAIAH W.P. No. 16205 of 2006 Date:29-01-2008 Between: Buke Lakshma Naik …Petitioner AND The State Election Commission, Secunderabad and six others .. Respondents ORDER: Heard the learned counsel for the petitioner as well as the Standing Counsel appearing for the 1st respondent-State Election Commission and the learned Government Pleader for Panchayat Raj appearing for respondents 2 to 6 and Sri Ravindra Bharati, learned counsel for the 7th respondent. 2. The petitioner questions the Proceedings No.730/SEC- B2/2006 dated 29.07.2006 of the 1st respondent-State Election Commission, in re-notifying the election programme for the Office of the Sarpanch and the Ward Member pertaining to Ward No.9 of Adireddypalle Gram Panchayat from the stage of publication of list of contesting candidates and also rescheduling the date of poll for conducting elections of Ward Members of other Wards to synchronize it with elections of Sarpanch and Ward Member of Ward No.9 of Adireddypalle Gram Panchayat in Mydukuru mandal, Kadapa District. 3. A perusal of the said notification of the State Election Commission would go to show that the election notification for conducting elections to Adireddypalle Gram Panchayat was issued on 15.07.2006 and the 7th respondent-Moode Kote Naik filed nominations for both Sarpanch and Ward Member of Ward No.9 of the said Gram Panchayat. But, the Returning Officer erroneously rejected the nomination of the 7th respondent on the ground that he cannot contest for both the offices of Sarpanch as well as Ward Member and after expiry of time for withdrawal of the candidature, the elections were held for the post of Sarpanch and the petitioner was unanimously elected to the office of the Sarpanch of the said Gram Panchayat. The Returning Officer also issued a certificate in Form No.XXIX under Rule 63 of the A.P. Panchayat Raj (Conduct of Elections) Rules, 2006 (for short “the Rules, 2006”) duly declaring the petitioner elected Sarpanch of the said Gram Panchayat on 23.07.2006. 4. It is the case of the petitioner that once he has been declared elected Sarpanch of the Gram Panchayat, the Election Commission becomes functus officio and it is for the Election Tribunal duly constituted to decide all the questions relating to disqualification, corrupt practices, improper rejection, improper acceptance, improper reception, non-compliance of provisions of the Act etc. Further, it is for the Election Tribunal to declare the election of the Returned Candidate to be void under Rule 12 (c) of the A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short “the Rules, 1995”). 5. In the instant case, for the alleged improper rejection of the nomination of the 7th respondent for the office of the Sarpanch as well as the Ward Member, the only course left open to the 7th respondent is to file an election petition before the Election Tribunal for declaration of the election of the petitioner as void on the ground that the nomination of the 7th respondent was improperly or illegally rejected. 6. Learned counsel appearing for the 1st respondent-State Election Commission submits that under Article 243-k of the Constitution of India, the Election Commission has got power with regard to superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats. Article 243-K of the Constitution of India reads as under: “Elections to the Panchayats:- 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 State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.” 7. It is stated that under the said provision, the Election Commission has power of superintendence and can give direction with regard to conduct of elections to the Panchayats. In the instant case, the nomination of the 7th respondent was illegally rejected on the ground that one person cannot contest for two posts i.e., Sarpanch as well as Ward Member and therefore, the election of the petitioner as Sarpanch as well as the election of Ward Member for Ward No.9 is illegal and unsustainable and therefore, the Election Commission has got power to re-notify the election ignoring the declaration of the election made in favour of the petitioner. 8. A perusal of the Article 243-k of the Constitution of India goes to show that the Election Commission has got power with regard to superintendence, direction, and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats. The said Article 243-K of the Constitution of India does not indicate anything about the effect after declaration of results. Once the elections have been declared, the said declaration of the election to any panchayat shall be questioned by way of election petition before the Election Tribunal. There is a bar under Article 243(O) of the Constitution of India for interference by courts in electoral matters. Article 243(O) of the Constitution of India reads as under: “Bar to interference by courts in electoral matters:- Notwithstanding anything in this Constitution--- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court; (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.” 9. The A.P. Panchayat Raj Act, 1994 (for short “the Act”) has been enacted to provide for the constitution of Gram Panchayats, Mandal Parishads, Zilla Parishads and for matters connected therewith or incidental thereto. 10. Section 233 of the Act reads as under: “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.” 11. Under Section 268 of the Act, the Government is empowered to make rules as to all matters relating to electoral rolls or the conduct of elections, not expressly provided for in this Act, including deposits to be made by candidates standing for election and the conditions under which such deposits may be forfeited, and the conduct of inquiries and the decision of disputes relating to electoral rolls or elections. 12. In exercise of powers conferred by Section 233 and sub-section (1) of Section 268, the Governor of Andhra Pradesh made rules called “The Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995. 13. Rule 12 of the Rules, 1995 reads as under: “12. If in the opinion of the Election Tribunal, (a) that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or (b) that any corrupt practice as laid down under Sec.211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with the consent of the Returned Candidate or his election agent, or (c) that any nomination has been improperly rejected, or (d) that the result of the election, in so far as it concerns a Returned Candidate has been materially affected, (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other than his election agent, with the connivance of the Returned Candidate, or (iii) by any improper reception, refusal, or rejection of any vote, or the reception of any vote which is void, (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. (B) If the Election Tribunal holds the Returned Candidate guilty under clause (b) and clause (d)(ii) of this rule, the Election Tribunal shall in addition to declare the election of the Returned Candidate as void, shall also declare that the Returned Candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order.” 14. It is the case of the 7th respondent that his nomination was improperly rejected on the erroneous understanding that one candidate is not entitled to contest election for the office of Sarpanch as well as Ward Member and as the nomination of the 7th respondent was improperly rejected, the only course left open to the 7th respondent is to file an election petition for improper rejection of his nomination and to declare that the election of the petitioner as Sarpanch, as void. 15. Learned counsel appearing for the 7th respondent relied on a Division Bench decision of this Court in STATE ELECTION COMMISSION, SECUNDERABAD v. MALLADI RAJENDRA PRASAD AND OTHERS[1] and contended that in view of the bar under Article 243-O of the Constitution of India, the writ petitions are not maintainable and aggrieved persons, about the action of the State Election Commission, has to file appropriate petition under Section 233 of the Act. 16. It is the contention of the learned counsel for the 7th respondent that basing on the judgment of a Division Bench of this Court, his nomination was rejected. That being so, the only course left open to the 7th respondent is to file election petition before the Election Tribunal to set aside the election on the ground of improper rejection of the nomination or improper acceptance of the nomination, but not the writ petition. 17. But, in the instant case, the person whose nomination has been improperly rejected is not questioning the said action. But, here the person whose election has been validly declared and a certificate has been issued stating that he has been duly elected as Sarpanch, is questioning the action. Once the declaration has been made, the only course left open to the aggrieved person is to file an election petition. Therefore, I am of the opinion that the State Election Commission has no power or authority to ignore the declaration of the election made in favour of the petitioner and re- notify the election for the post of Sarpanch. 18. The learned counsel appearing for the petitioner relied on the Division Bench judgment of this Court in GANGARAM v. STATE ELECTION COMMISSION AND OTHERS[2] at paragraph 24, which reads as under: “After the declaration was made by the Presiding Officer, the election of a candidate can only be challenged by an election petition under Section 233 of the Act. The Election Commissioner has no power to interfere with the declaration of a result, whatever be the reason. The power to give directions to the Commissioner and the other officers, vested in him by Section 201, was only for the purpose of ensuring efficient conduct of the elections. Once a declaration was made, the election has come to an end and, thereafter, the power of superintendence and control of the Election Commissioner is not available. Any action initiated by the Election Commissioner to interfere with the result of an election would be in breach of Section 153 and the statutory rules adverted to supra. The legal position in this regard is well settled. In A.C.Jose v. Sivan Pillai (AIR 1984 SC 921 at 927), it was held by the Supreme Court, in the context of the exercise of powers by the Election Commission under Article 324 of the Constitution: “Where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the mater of superintendence, direction and control as provided by Article 324.” The order of the State Election Commissioner dated 27.12.1995 also suffers from another fatal infirmity, in that it was passed without notice to Sri Gangaram, the affected candidate, whose election was set aside by that order.” 19. In the instant case, the Division Bench of this Court in State Election Commission’s case (1 supra) authoritatively held that after declaration was made by the Presiding Officer, election of the candidate can only be challenged by an election petition under Section 233 of the Act and the Election Commissioner has no power to interfere with the declaration of the result, whatever be the reason. The similar contentions with regard to power of the election commission to give direction and superintendence about the conduct of elections were also considered and held that it was only for the purpose of ensuring efficient conduct of the elections and once a declaration was made, the election come to an end and, thereafter, the power of superintendence and control of the Election Commissioner is not available. Therefore, I am of the opinion that the impugned notification issued by the 1st respondent, dated 29.07.2006 in so far as the re-notification of the election to the office of the Sarpanch is illegal and unsustainable and is liable to be set aside. 20. Accordingly, the writ petition is allowed setting aside the impugned notification dated 29.07.2006 issued by the 1st respondent, insofar as the re-notification of the election to the office of the Sarpanch, is concerned. Insofar as the re-notification of Ward Member for Ward No.9 of the said Gram Panchayat is concerned, if somebody is already elected for Ward No.9, the question of re-notification for Ward No.9 does not arise and if no election has been conducted for Ward No.9, it is always open to the Election Commission to conduct elections for Ward No.9. There shall be no order as to costs. ______________ V.ESWARAIAH, J. Date:29.01.2008 Note: 1.Furnish C.C. within three days. 2. LR Copy to be marked. B/o Ccm [1] 2006 (5) ALD 97 (DB) [2] 1996(4) ALD 1211 (D.B.)