* THE HON’BLE Ms. JUSTICE G. ROHINI + REVIEW WPMP.NO.23942 OF 2007 IN WRIT PETITION NO.16774 OF 2007 %Dated 05-11-2007 # Smt. Erlapati Veera Lakshmi … Petitioner VERSUS $ Guda Haritha Rani … Respondent ! Counsel for Petitioner: Sri P. Govind Reddy ^Counsel for Respondent : Sri B.S.V. Prakash Kumar <GIST: > HEAD NOTE: ? Cases referred [1] AIR 1979 SC 1047 = (1979) 4 SCC 389 2 (1995) 1 SCC 170 3 (2006) 4 SCC 78 4 2002 (4) ALT 496 (DB) THE HON’BLE Ms. JUSTICE G. ROHINI REVIEW WPMP.NO.23942 OF 2007 IN WRIT PETITION NO.16774 OF 2007 ORDER : The writ petitioner in W.P.No.16774 of 2007 filed this petition to review the order dated 8-8-2007 under which the writ petition was dismissed at the stage of admission. Writ Petition No.16774 of 2007 was filed questioning the order dated 1-8-2007 in O.P.No.860 of 2006 on the file of the Court of the Principal District Judge, West Godavari District, Eluru, whereunder not only the election of the writ petitioner as Sarpanch of Tallapudi Gram Panchayat was declared illegal and set aside on the ground that she suffered disqualification under Section 19 (3) of the A.P. Panchayat Raj Act, 1994 (for short, ‘the Act’) but also the respondent herein was declared elected. This Court by order dated 8-8-2007 dismissed the writ petition thereby confirming the order made by the learned District Judge in O.P.No.860 of 2006. In this Review petition while submitting that under Section 22 of the A.P. Panchayat Raj Act, 1994 the District Court can only decide the question of disqualifications under Sections 17, 18, 19 or 20 of the Act but has no jurisdiction to set aside the election held under the Act on any ground whatsoever, it is contended that since the said question relating to jurisdiction, which goes to the root of the matter, has not been considered by this Court while dismissing W.P.No.16774 of 2007, the order in the writ petition suffers from an error apparent on the face of the record and therefore requires Review. A counter-affidavit has been filed by the respondent contending that since the grounds raised in the Review petition were not raised in the main writ petition and there was no occasion for this Court to decide the same, it is not open to the petitioner to urge the said grounds for the first time in the Review petition. As held by the Supreme Court in ARIBAM TULESHWAR SHARMA v. ARIBAM PISHAK SHARMA[1], there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising the power of review which inhers in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. However, the Supreme Court, while observing that there are definitive limits to the exercise of power of review, held as under : “The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.” The same principle has been reiterated in MEERA BHANJA v. NIRMALA KUMARI CHOUDHURY[2] From the above, it is clear that the power of review that can be exercised by this Court even in exercise of its plenary jurisdiction under Article 226 of the Constitution of India is similar to the jurisdiction available under Order 47 Rule 1 of C.P.C. It needs no reiteration that under Order 47 Rule 1 of C.P.C. review of judgment is permissible only (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. It is also a well settled principle of law that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. (vide SATYANARAYAN LAXMINARAYAN HEGDE v. MALLIKARJUN BHAVANAPPA TIRUMALE :: AIR 1960 SC 137) While reviewing the decided cases relating to the power of Review, it has been held in a recent decision in HARIDAS DAS v. USHA RANI BANIK[3], as under : “under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.” In the light of the legal position noted above, I shall proceed to consider whether the order in W.P.No.16774 of 2007 requires review on the grounds urged by the petitioner. I have heard the learned Counsel for both the parties in detail. The material on record shows that the Review petitioner / writ petitioner was elected as Sarpanch of Tallapudi Gram Panchayat in the elections held on 2-8-2006. The respondent herein/respondent in the writ petition who was the unsuccessful candidate filed O.P.No.860 of 2006 in the Court of the Principal District Judge, West Godavari District, Eluru, on 22-8-2006 with the following prayer : “The petitioner, therefore, prays that the Hon’ble Court may be pleased to pass Decree/Order in favour of the petitioner and against the respondents – (a) Decree/Order declaring that the Declaration of the Election of the 7th respondent – Smt. Erlapati Veera Lakshmi to the Post of Sarpanch/President of the 8th respondent – Tallapudi Gram Panchayat on 2-8-2006 by the respondents 1 to 6 on 2- 8-2006 is illegal, arbitrary and contrary to law; and (b) for a consequential direction that the petitioner – Smt. Guda Haritha Rani is declared elected to the post of Sarpanch/President of the 8th respondent – Tallapudi Gram Panchayat; (c) for costs of the petition; (d) grant such other relief or reliefs as the Hon’ble Court deems fit and just under the above circumstances of the case.” It was alleged in the O.P.No.860 of 2006 that the writ petitioner, who was arrayed as respondent No.7 therein, had five children among whom two children were born after 1995 and therefore she suffered a disqualification under Section 19 (3) of the Act. While contending that the election of the writ petitioner was liable to be declared as a nullity on account of the said disqualification, it was further claimed that being the candidate who secured the next highest number of votes, she was entitled to be declared elected to the office of Sarpanch. The writ petitioner in her counter to O.P.No.860 of 2006 while denying the alleged disqualification, stated that she gave birth to her fourth and fifth children on 17-8-1991 and 22-12-1993 and therefore by virtue of the proviso to Section 19(3) of the Act she did not suffer any disqualification. Both the parties adduced oral and documentary evidence, on appreciation of which the learned Principal District Judge recorded a finding that the writ petitioner who was having more than two children by the date of commencement of the Act and gave birth to two more children after expiry of one year from the date of commencement of the Act had incurred a disqualification under Section 19 (3) of the Act. Accordingly, O.P.No.860 of 2006 was allowed setting aside the election of the writ petitioner and declaring the respondent herein as elected. Aggrieved by the same, the petitioner filed W.P.No.16774 of 2007 which was dismissed by this Court holding that in Certiorari jurisdiction re-appreciation of the evidence was not permissible. It is not in dispute that O.P.No.860 of 2006 was filed under Section 22 of the A.P. Panchayat Raj Act, 1994 which runs as under : Sec. 22. Authority to decide questions of disqualifications of members :- (1) Where an allegation is made that any person who is elected as a member of a Gram Panchayat is not qualified or has become disqualified under Section 17, Section 18, Section 19 or Section 20 by any voter or authority to the executive authority in writing and the executive authority has given intimation of such allegation to the member through the District Panchayat Officer and such member disputes 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, such member or any other member may, and the executive authority, at the direction of the Gram Panchayat or the Commissioner shall, within a period of two months from the date on which such intimation is given or doubt is entertained, as the case may be, applied to the District Court having jurisdiction over the area in which the office of the Gram Panchayat is situated for decision. (2) Pending such decision, the member shall be entitled to act as if he is qualified or were not disqualified. (3) Where a person ceases to be the Sarpanch or Upa- Sarpanch of a Gram Panchayat as a consequence of his ceasing to be a member of the Gram Panchayat under clause (b) of Section 20 and is restored later to his membership of Gram Panchayat under sub-section (2) of Section 21, he shall, with effect from the date of such restoration, be deemed to have been restored also to the office of Sarpanch or Upa-Sarpanch, as the case may be.” A plain reading of Section 22 (1) of the Act makes it clear that the said provision deals with only adjudication of disqualifications under Sections 17, 18, 19 or 20 of the Act by the authority specified thereunder i.e., the District Court. Nothing in Section 22 either expressly or by necessary implication provides for setting aside the election of a person declared as disqualified. It is relevant to note that as per Article 243-O (b) of the Constitution of India, no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as provided for under any law made by the Legislature of a State. Section 233 of the A.P. Panchayat Raj Act, 1994, provides for such forum and the procedure under which the elections held under the Act can be called in question. In exercise of power conferred under Section 233 read with rule making power under Section 268 of the Act the Governor of Andhra Pradesh made the Rules under G.O.Ms.No.111, PR, RD & R (Elec.-III) Department, dated 3-3-1995 which were called the A.P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (for short, ‘the Rules’). Section 233 of the A.P. Panchayat Raj Act, 1994 and the relevant Rules under G.O.Ms.No.111, dated 3-3-1995 may be extracted hereunder : Sec. 233. Election Petitions:-- No elections 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. Rule 1 (3). In these rules, unless the context otherwise requires:- (iii). “District Munsiff” means the District Munsiff appointed under the Andhra Pradesh Civil Courts Act, 1972; Rule 2 (1). Save as otherwise provided no election held under the Act, whether of a member, Sarpanch or Upa-Sarpanch of Gram Panchayat, President and Vice-President of Mandal Parishad and Member of Mandal Parishad Territorial Constituency and Chairperson of Zilla Parishad and Member of Zilla Parishad Territorial Constituency thereof, shall be called in question except by an election petition presented in accordance with these Rules to the Election Tribunal as defined in sub-rule (2) by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) or if there are two or more returned candidates against all or any such candidates. (2) The Election Tribunal shall be, (i) except in cases following under clause (ii); (a) The District Munnsiff, if there is more than one District Munsiff, the Principal District Munsiff, having territorial jurisdiction over the place in which the office of Gram Panchayat is located, in respect of the election of members, Sarpanches and Upa-Sarpanches of Gram Panchayats. Rule 3 (i). The election petition shall be presented within thirty days from the date of the declaration of the result of the election. Explanation:- If the Court of the Subordinate Judge or the District Munsiff, as the case may be, or the Office of the Officer of the Government who is the Election Tribunal is closed on the last day of the thirty days aforesaid, the petition may be presented to the Election Tribunal on the next day afterwards on which such Court or Tribunal is open. (ii) The petition shall contain a statement in concise form, the material facts on which the petitioner relies and the particulars of any corrupt practices which he alleges and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner prescribed for verification of pleadings in the Code of Civil Procedure, 1908. Rule 4 (i). If the irregularities alleged in the petition are likely to affect the validity of the election of more than one returned candidate, the petitioner shall join as respondents to his petition all such returned candidates. (ii) The petitioner may, if he so desires, in addition to calling in question the election of the returned candidates or of all or any of the returned candidates, as the case may be, claim a declaration that he himself or any other candidate has been duly elected in which case he shall join as respondents to his petition all other candidates who were nominated for the election but who had not withdrawn before the polling. Rule 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) … … …. … … (c) … … ….. …. … (d) … …. … … … (A) The Election Tribunal shall declare the election of the Returned Candidate to be void. (B) … .. .. … .. On a combined reading of Section 233 of the Act together with the Rules extracted above, it is clear that no election held under the Act shall be called in question except by way of election petition presented to the Election Tribunal i.e., the District Munsiff having territorial jurisdiction over the place in which the office of Gram Panchayat is located. The specific procedure to be followed while presenting such petition has also been clearly laid down in Rules 3 and 4 of the Rules. Having considered the above rule position, a Division Bench of this Court in MRS. RAGIBOYINA BHULAKSHMI vs. GOVERNMENT OF ANDHRA PRADESH, PANCHAYAT RAJ DEPARTMENT AND ANOTHER[4] held that the election tribunal constituted under the Rules is the only forum which can decide the disputes raised under the provisions of the A.P. Panchayat Raj Act and no other Court has any jurisdiction to decide the election dispute. From the prayer in O.P.No.860 of 2006, extracted above, as well as the averments therein, it is clear that the relief prayed was not merely a declaration that the writ petitioner was disqualified but to declare her election to the office of Sarpanch as void and consequently to set aside the election. Thus, on the face of it, O.P.No.860 of 2006 was filed questioning the election of the writ petitioner to the office of Sarpanch. Since admittedly OP.No.860 of 2006 was filed under Section 22 of the Act before the forum provided thereunder i.e., the District Court, the question is whether the District Court in exercise of the jurisdiction under Section 22 of the Act can set aside the election. It is true that the writ petitioner did not raise an objection as to the jurisdiction of the District Court and the matter was allowed to proceed on merits. Consequently, the learned Principal District Judge while recording a finding that the writ petitioner suffered a disqualification under Section 19 (3) of the Act set aside her election to the office of Sarpanch. A further relief declaring the respondent herein as elected was also granted. It is also true that the said ground was not urged even before this Court in W.P.No.16774 of 2007 while questioning the order in O.P.No.860 of 2006. However, the law is well settled that the plea with regard to initial want of jurisdiction in respect of an order passed by a Tribunal or a Subordinate Court which goes to the root of the matter being a pure question of law can be permitted to be raised at any stage of the proceedings since the mere failure on the part of the parties to the proceedings to raise an objection as to want of jurisdiction cannot confer jurisdiction on a Tribunal or a Court which lacks jurisdiction. It is apparent from the order under Review that except in para-2, where in the narration of facts it was mentioned that O.P.No.860 of 2006 was filed under Section 22 of the Act before the Principal District Judge, the rest of the order was proceeded on an erroneous assumption that the writ petition was directed against an order passed by the Election Tribunal. The question of jurisdiction was neither urged in the writ petition nor argued by the learned counsel for the writ petitioner resulting in dismissal of the writ petition merely considering the correctness of the findings of fact recorded by the Court below. Thus, the crucial question whether the order passed by the District Court was without jurisdiction, was not gone into by this Court. Failure to consider the said question which goes to the root of the matter undoubtedly constitutes an error apparent on the face of the record warranting exercise of the power of review by this Court. The learned Counsel for the petitioner further contended that the order in OP.No.860 of 2006 was bad also for non-compliance of the mandatory procedure prescribed under Section 22 of the Act. However, I am not inclined to express any opinion on the said contention since the same requires consideration in the writ petition after giving an opportunity to the respondent to file her counter- affidavit. It is made clear that this Court shall not be understood to have expressed any opinion even on the contention that the order in O.P.No.860 of 2006 is bad for inherent lack of jurisdiction, but this Review Petition is allowed only on the ground that dismissal of the writ petition without considering the crucial question with regard to the jurisdiction of the District Court under Section 22 vis-à-vis the jurisdiction of the Election Tribunal (District Munsif) under Section 233 of the Act amounts to an error apparent on the face of the record. Accordingly, it is left open to both the parties to make their submissions on all the grounds as available under law when the writ petition is taken up for fresh consideration. For the aforesaid reasons, the order dated 8-8-2007 in W.P.No.16774 of 2007 is recalled and the Writ Petition is restored to file for consideration afresh. Accordingly, the Review Petition is allowed. No costs. _____________ G. ROHINI,J. Dt. 05-11-2007 gbs Note: - CC in 3 days LR copy to be marked. [1] AIR 1979 SC 1047 = (1979) 4 SCC 389 [2] (1995) 1 SCC 170 [3] (2006) 4 SCC 78 [4] 2002 (4) ALT 496 (DB)