IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 10310 of 2008 Between: Smt. J. Siva Kumari W/o. Raju R/o. 57-3-33, Yesuvari Streeti, Jagannaickpur, Kakinada, E.G.district. ..... PETITIONER AND 1 Matta Sujatha W/o. Ramakrishna 57-3-5/1, Yesuvari Street, Jagannaickpur, Kakinada, E.G.District. 2 Joga Dhanamma W/o. Appalaswamy 57-3-5/1, Yesuvari Street, Jagannaickpur, Kakinada, E.G.District. 3 Bommada Nagalakshmi @ Bujji W/o. HariKrishna Lankalavaripeta, Jagannaickpur, Kakinada, E.G.District. 4 Returning Officer-Cum-District Collector, East Godavari District at Kakinada. 5 Kakinada Municipal Corporation, Rep. by its Commissioner Kakinada, East Godavari District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue writ Certiorari calling for the records relating to Election O.P.No. 679 of 2005, decree and order dt.15-4-2008 on the ﬁle of III Additional District Judge's Court. Kakinada and quash the same by declaring it as illegal, null and void and for a consequential order ro suspend the operation of the impugned decree and order in Election O.P.No.679 of 2005, dt. 15-4-2008 on the ﬁle of III Additional District Judge's Court, kakinada. Counsel for the Petitioner: MR.CH.DHANAMJAYA Counsel for the Respondent Nos.2&3: MR. K.SRINIVASA REDDY Counsel for the Respondent No.4: GP FOR MUNCIPAL ADMN. & URBAN DEV. Counsel for the Respondent No.5: MR. S.NAGESWARA REDDY The Court made the following : ORDER: This writ petition has been ﬁled by Smt.J.Siva Kumari with a prayer to issue a writ of Certiorari calling for records relating to Election O.P.No.679 of 2005 on the ﬁle of III Additional District Judge, Kakinada and set aside the decree and order dated 15.04.2008. 2. Smt.Matta Sujatha, the ﬁrst respondent herein, ﬁled E.O.P.No.679 of 2005 on the ﬁle of III Additional District Judge, Kakinada, questioning the election of Smt.J.Siva Kumari, the petitioner herein, as a Corporator/Member of Kakinada Municipal Corporation. Smt. Matta Sujatha and Smt.J.Siva Kumari along with two others contested for the post of Corporator/Member of 21st Division of Kakinada Municipal Corporation. Smt.J.Siva Kumari was declared as elected having secured 1116 votes as against 998 votes secured by Smt.Matta Sujatha. E.O.P.No.679 of 2005, under Sections 71 and 73 of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the Act’) as applicable to Kakinada Municipal Corporation, came to be ﬁled by Smt.Matta Sujatha alleging that Smt.J.Siva Kumari is disqualiﬁed to contest since she has three surviving children as on the date of her nomination for election of Corporator/Member of the 21st Division of Kakinada Municipal Corporation. Smt.J.Siva Kumari contested the E.O.P. contending that one of her children went in adoption and therefore, she had only two surviving children as on the date of her nomination. On behalf of Smt.Matta Sujatha, she got herself examined as PW.1 and examined one Matta Ramakrishna @ Rambabu as PW.2 and marked the Birth Certiﬁcate of female issue of Smt.J.Siva Kumari as Ex.A1 and certiﬁed copy of order and decree in E.O.P.No.121/99 on the ﬁle of III Additional District Court, Kakinada, as Ex.A2. On behalf of Smt.J.Siva Kumari, she got herself examined as RW.1 and examined Joga Raju and Bodapati Satyanarayana as RWs.2 and 3 and marked ﬁve documents as Exs.B1 to B5. 3. The learned Additional District Judge, on considering the evidence brought on record and on hearing the counsel for the parties, came to the conclusion that Smt.J.Siva Kumari had more than two children as on the date of her nomination and thereby she incurred disqualiﬁcation under Section 21-B of the Act and consequently allowed the E.O.P., by order dated 15.04.2008. The said order is under challenge in this writ petition. 4. Rule Nisi came to be issued on 02.05.2008. An interim order also came to be passed on the said date vide WPMP No.13526 of 2008. 5. Smt.Matta Sujatha, 1st respondent in the writ petition, entered appearance and ﬁled WVMP No.1578 of 2008 with a prayer to vacate the interim order dated 02.05.2008 passed in WPMP No.13526 of 2008. 6. When the vacate stay petition came up for consideration, with the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 7. Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. 8. Learned counsel appearing for the petitioner submits that one of the children of the petitioner had been given in adoption and therefore, she has only two children as on the date of her nomination and thus, she had not incurred any disqualiﬁcation to contest for the Corporator/Member. 9. Per contra, learned counsel appearing for the 1st respondent submits that the petitioner had three surviving children as on the date of her nomination and thereby she incurred disqualification. 10. Section 21-B of the Act reads as hereunder: S.21-B. Person having more than two children to be disqualified:- A person having more than two children shall be disqualified for election or for continuing as Member: Provided that the birth within one year from the date of commencement of the Andhra Pradesh Municipal Laws (Second Amendment) Act, 1994 (hereinafter in this section referred to as the date of such commencement) of an additional child shall not be taken into consideration for the purposes of this section: Provided further that a person having more than two children (excluding the child if any born within one year from the date of such commencement) shall not be disqualiﬁed under this section for so long as the number of children he had on the date of such commencement does not increase: Provided also that the Government may direct that the disqualiﬁcation in this section shall not apply in respect of a person for reasons to be recorded in writing]. 11. The date of birth of the 3rd issue of the petitioner is 22.06.1995. It can be said that the petitioner gave birth to the 3rd issue after expiry of the one year period of the commencement of the Act. The date of commencement of the amended Act 17 of 1994 is 01.06.1994 and the date of birth of the 3rd issue of the petitioner is 22.06.1995. The question whether the petitioner has given one of her children in adoption is immaterial so far as counting the number of surviving children the petitioner has on the date of nomination. Since the petitioner is mother of three surviving children as on the date of her nomination, she incurred disqualiﬁcation under Section 21-B of the Act. The Election Tribunal has considered this aspect in great detail and recorded a ﬁnding that the petitioner incurred disqualiﬁcation under Section 21-B of the Act. I do not see any flaw in the order passed by the Election Tribunal. 12. Accordingly, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:05th September, 2008. cs ..... 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