THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.12637 of 2010 Dated:09.06.2010 Between: Ganga Raja Vittal, And others. ...Petitioners And The Government of Andhra Pradesh, Rep.by its Secretary, Panchayat Raj Department, Secretariat, Hyderabad, And others. ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.12637 of 2010 ORDER: The petitioners are residents of Yelkal Village of Dowltabad Mandal in Medak District. They filed the instant writ petition challenging the election notification dated 29.05.2010 for electing the Sarpanch of the Village. The case of the petitioners is as follows. The elections to the Office of Sarpanch were held in 2006. Jala Pedda Ellam was elected as Sarpanch. He expired on 17.11.2009 and the Upa Sarpanch was entrusted with the functions of Sarpanch, who is discharging the duties as such. As per Section 14(4) of the Andhra Pradesh Panchayat Raj Act, 1994 (the Act), the election to the casual vacancy has to be held within 120 days from the date of occurrence of such vacancy. The period of 120 days expired on 17.03.2010, but the impugned election notification is issued on 29.05.2010 which is illegal and arbitrary. It is also their contention that as and when election is conducted, the electoral roll has to be prepared for fresh election, and the respondents are proceeding with the election without revising the electoral rolls. Counsel for the petitioners reiterated the contentions which are taken in the affidavit accompanying the writ petition. These are refuted by the Assistant Government Pleader for Panchayat Raj. The first contention that any election notification issued behind the period of 120 days as contemplated under Section 14(4) of the Act is misconceived. The non holding of election within 120 days from the date of occurrence of casual vacancy does not result in any penal action. Therefore, it is not mandatory provision. Merely because the Upa Sarpanch is continued beyond the period of 120 days, it does not mean that election to the Office of Sarpanch cannot be conducted and the Upa Sarpanch shall be continued. In a given case, if the elected Sarpanch dies within a week or within a month or so after election, and election is not held to the casual vacancy within 120 days it would amount to continuing the Upa Sarpanch for the entire period of five years because under Section 26 of the Act when the Office of Sarpanch is vacant, Upa Sarpanch shall exercise the powers and perform the functions of Sarpanch until a new Sarpanch is declared elected and assumes the Office. Further under Section 14(5) of the Act the Legislature prohibits election of Sarpanch if the time gap between the ordinary election of Sarpanch and the election to fill up the casual vacancy is six months or less. Therefore, reading Section 14(4) and (5) and Section 26(1) of the Act together it is not possible to accept the submission of the petitioner. The second submission with regard to electoral rolls is also without any substance. As per Section 11 of the Act the electoral roll for Gram Panchayat shall consist of such part of the electoral roll for the Assembly Constituency published under the Representation of the People Act, 1950, as revised or amended under the said Act, up to the qualifying date, as relates to the Village or any portion thereof. Section 2(34) of the Act defines “qualifying date” in relation to preparation and publication of every electoral roll under the Andhra Pradesh Panchayat Raj Act as meaning the first day of January of the year in which it is so prepared and published. Applying this, if election is conducted for the casual vacancy based on the electoral roll prepared for the Assembly elections, the same does not vitiate the elections. Furthermore, it is well settled that election notification cannot be challenged in the writ petition and when once election process is set in motion by such notification all things must wait. Any person aggrieved – be it a voter or be it a contestant – can challenge the election by filing O.P as contemplated under Section 233 of the Act (See Guttakonda Kanaka Durga v. State Election Commissioner[1]). The Writ Petition is misconceived, and the same is accordingly dismissed. ____________ (V.V.S.RAO, J) 09.06.2010 vs [1] 2001(4) ALT 476 (FB)