HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY W.P.No. 26498 of 2007 Date: 09-11-2010 Between: Smt. Jagathi Lakshmi Ratnam ……… Petitioner and Election Tribunal (Senior Civil Judge), Kovvur, West Godavari District. ……….. respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G.V. SEETHAPATHY W.P.No. 26498 of 2007 ORDER: (Per BPR, J) The unsuccessful petitioner in the election petition filed before the Election Tribunal filed this writ petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, inter alia, seeking writ of Certiorari for quashing the order, dated 30-11- 2007 in O.P.No.86 of 2006 on the file of the Senior Civil Judge, Kovvur and consequently, to declare the petitioner as duly elected President of Nidadavolu Mandal Praja Praishad, West Godavari District, in the elections held on 11-07-2006 and issue further directions as may warrant. 2. Heard Sri M.V.S. Suresh Kumar, learned counsel for the petitioner and Sri N. Subba Reddy, learned senior counsel appearing on behalf of Sri N. Siva Reddy, for the contesting respondent No.2 and the learned Government Pleader for Panchayat Raj and Rural Development on behalf of Respondents 3 to 6. 3. Briefly, the facts, as necessary for the purpose of disposal of the writ petition, are that elections were conducted on 11-07-2006 for the MPTCs of Nidadavolu Mandal Praja Parishad in the year 2006. The petitioner has contested as a party candidate on behalf of Telugu Desam Party along with other members. Whereas respondent No.1 has contested as party candidate on behalf of congress party. Results were declared 14-07-2006 and respondent No.1 was declared to be elected as President amongst the members. The petitioner was the unsuccessful candidate and she filed the election petition initially on 20-07-2006 purported as O.P.No.86 of 2006 on the file of the Senior Civil Judge at Kovvur, West Godavari District by paying the Court fee of Rs.10/-. Subsequently, when the office returned the petition with certain objections, the petitioner represented the petition back to the Court on 22-08-2006 and paid the Court fee of Rs.40/-. The case of the petitioner in the petition was that Respondent No.1 has committed corrupt practices, fraud, misrepresentation and undue influence on the authorities. Further the main ground of attack was that respondent No.1 has given birth to three children, namely 1) Venkata Satyasai Pavan Kumar, 2) Bharath Chandra 3) Papa @ Satya Sai, who were born on 29-03-1996, 19-08-1998 and 10-05-2000 respectively. The respondent No.1 is disqualified, having regard to the bar created under Section 19(3) of the A.P. Panchayat Raj Act (for short ‘Act’), since she has got more than two children and therefore, she is not entitled for contest. Hence, the entire elections are vitiated and liable to be set aside. Further, since the petitioner has got nine votes and there being no other candidate, she is entitled to be declared as elected. 4. Contesting the petition, there is total denial on the part of respondent No.1 in the counter affidavit about the principal allegations and the petitioner was put to strict proof of allegations that the respondent No.1 was having three children as on the relevant date. 5. In the counter affidavits filed on behalf of respondent Nos.2 to 5, who are the authorities, it was mentioned that no such objection was taken at the time of scrutiny about the validity of the nomination and the petition was filed only to harass respondent No.1 due to political rivalry. It was further mentioned that respondent No.1 had got eleven votes and hence she was rightly declared as elected. 6. With the above and other contentions as set forth in the respective pleadings, the Court framed the following points for consideration: 1. Whether the first respondent has three children? 2. Whether the Election Tribunal has no jurisdiction to entertain the petition on the ground of disqualification? 3. Whether the election petition is barred by limitation and whether it is not properly presented as contemplated under Rule 2 & 3 of the Act? 4. Whether the petitioner is entitled for declaration and for consequential relief as prayed for? 7. Later on, the parties went into trial and enquiry, wherein on behalf of the petitioner, she herself was examined as PW-1 supported by PWs.2 and 3, who are residents of the village, PW-4, Mandal Revenue Officer and PW-5, a person running a nursing home at Nidadavole in the name and style of Raju Nursing Home, and Exs.A-1 to A-12 were marked, out of which Exs.A-4 to A-8 are the true copies of the social security identification numbers, Ex.A-9 is the birth certificate, Ex.A-10 is the true copy of the multipurpose household data issued by the M.R.O. Office, Ex.A-11 is the extract of relevant portion of birth register and A-12 is the true copy of the birth intimation to the local municipality issued by the aforesaid nursing home run by PW-5. Exs.A-4 to A-12 were filed by the petitioner for the purpose of showing that respondent No.1 has three children, apart from Exs.A-1 to A-3. On behalf of respondent No.1, she herself was examined as RW-1 and that apart, she examined RWs.2 to 5, who are the residents of the village, for the purpose of denying the principal allegations. 8. On appreciation of the evidence on record, the Election Tribunal, while holding that there being no specific denial as to having three children by the respondent No.1 and accepting the version of the petitioner (PW-1) as supported by the other witnesses including PWs.4 and 5, which shows that respondent No.1 has got three children as on the relevant date, held that respondent No.1 has got three children even by the date of filing of the nomination. However, the objection raised by respondent No.1 in regard to the jurisdiction of the Court to entertain the election petition as Election Tribunal, as per the provisions of the Act by referring to the Rules as well, was rejected. 9. Coming to the other point as to whether the election petition is barred by limitation and not properly presented, the Court has held that there is no proper presentation since the petition was filed initially on 20-07-2006 by paying the Court fee of Rs.10/-. Whereas, subsequently, proper Court fee of Rs.40/- was paid on 22- 08-2006 without obtaining permission of the Court and therefore, the petition is liable to be rejected for non-compliance of the mandatory provisions of law about the limitation and the Court fees. Ultimately, holding that the petitioner is not entitled for declaration as sought for, the Election Tribunal dismissed the main petition. Hence, the writ petition. 10. Though both sides have virtually taken us through the entire gamut of the pleadings raised and the evidence produced on either side, however, having regard to the fact that there is no challenge by way of any separate proceedings of Writ or otherwise by the respondent No.1 in regard to the findings especially as to the fact that she was having three children as on the date of notification itself and that the Court has jurisdiction, it is not open for the respondent No.1 to canvass against either of these two findings in the absence of proper proceedings. Therefore, we are refrained from going into these aspects. 11. Coming to the main question, which revolve around for due attention, is whether, on the facts and circumstances, there is proper presentation of the petition by the petitioner in the manner as prescribed under the law, at the outset, it is to be stated that there is no dispute about the fact that the elections were held on 11-07-2006 and the results were declared on 14-07-2006. Whereas the present petition as O.P. was filed on 20-07- 2006. Admittedly, the petition has not been filed within the prescribed period of thirty days either from 11-07-2006 or even from 14-07-2006. Since the very petition was represented on 22-08-2006, either way the petition is beyond the prescribed period of thirty days. Perhaps, admittedly the petitioner has paid the Court fee of Rs.10/- while presenting the petition on 20-07-2006 and the same was returned with certain objections. It is only when the petition was represented on 22-08-2006, the petitioner has paid the Court fee of Rs.40/-. There is absolutely no explanation on the part of the petitioner as to why and how she could pay the Court fee of Rs.10/- initially on the date of filing of the petition on 20-07-2006 and also as to why and how she could not pay proper Court fee of Rs.40/- at the inception. Neither there is any explanation nor any reason coming forth on behalf of the petitioner as to why proper Court fee of Rs.40/- was not paid till 22-08-2006. In the circumstances, it has to be taken that the petition, which is required to be presented, should be in terms of the prescribed court fee and also the bar of limitation. Either way, there is no presentation of the petition by the petitioner within thirty days from 11-07-2006 or from 14-07-2006. Further there is also no proper presentation with the due court fee as prescribed under the law, namely Rs.40/-, even as on the date of the initial filing itself. Therefore, either way, it can safely be said that there is no proper presentation of the petition by the petitioner herein in assailing the election of the respondent No.1. Irrespective of the fact that the main ground, on which the petitioner sought to attack the acceptance of nomination and also getting elected of the respondent No.1 holding that she has three children even as on the date of nomination, which could have materially affect the result of the election itself, however, having regard to the fact that there is no knocking of the door within the time prescribed and in the manner as provided under the law for payment of due court fee as on the date of petition, it can safely be said that the petitioner could not possibly seek any indulgence or ask for any relief in a Court of law or Tribunal. 12. In ANWARI BASAVARAJ PATIL v. SIDDARAMAIAH [1], it has been held as follows: “There is no provision in the Representation of the People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under that Act. Even by virtue of Section 29(2) of the Limitation Act the provisions thereof would not become applicable to the recrimination notice under Section 97. The R.P. Act is a self- contained code. The proviso to Section 97(1) requiring a recrimination notice to be given to High Court within 14 days ‘from the date of commencement of the trial’ [which in view of the Explanation to Section 86(4) means within 14 days of the ‘date fixed for the respondents to appear before the High Court to answer the claim or claims’] has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. When the Supreme Court in H.N. Yadav case has already held that Section 5 of the Limitation Act does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice.” 13. In P. LEELA RANI v. AGENCY DIVISIONAL OFFICER [2], a learned single Judge of this Court held that: “Election Petition – Filed without payment of Court fee or with deficit court fee – Not a proper presentation – Election Tribunal being a persona designate not having jurisdiction to direct payment of deficit court fee after expiry of period of limitation prescribed exercising power under Section 149, CPC – Petition liable to be rejected under Order 7 Rule 11 CPC for non-payment of court fee – Entertainment of election petition not properly stamped by Election Tribunal – Erroneous – Petition rejected. Held: In a matter of this kind primary responsibility to file an election petition in full compliance with the provisions of law is on the petitioner who challenges the election. If the Election Tribunal finds non-compliance of the mandatory requirement i.e., payment of court fee, it has to uphold the preliminary objection and has no option except to dismiss the petition. It is no part of the duty of the Election Tribunal to direct the payment of court fee after expiry of period of limitation for filing the election petition when objection is raised by the other side, and cannot exercise dispensing powers to waive non- compliance. The election petition is based on the rights, which are purely creature of a statute. The petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law under Order VII Rule 11 CPC. It is held that the first respondent had not possessed the powers of Civil Court under Section 149 CPC for condoning the delay in payment of deficit court fee. Once the presentation of election petition by the second respondent without payment of court fee or with deficit court fee is not a proper presentation, the first respondent cannot proceed with the trial of the election petition. Accordingly, the order passed by the first respondent suffers from manifest illegality and incurable legal infirmities and therefore cannot be sustained and the same is accordingly quashed.” 14. Even though several other contentions were sought to be urged on a wider perspective, however, having regard to the findings arrived at, it is not necessary to go into the same as it would not have any determining effect or result on the above aspects and without getting either of which, the petitioner cannot proceed further and we are constrained to hold that it is not necessary to delve into the same. 15. Having regard to the aforesaid findings as we have arrived at in terms of the findings arrived at by the Court/Tribunal holding that the petition has not filed within the time and also in the manner as prescribed under the law including the payment of due court fee, the petitioner is not entitled to seek the very relief and the petition was held to be not maintainable and further consequently, rightly dismissed. In the circumstances, we do not find any merits in the writ petition. 16. The writ petition is, accordingly, dismissed. No order as to costs. _________________ B. PRAKASH RAO, J __________________ G.V. SEETHAPATHY, J Date: 09-11-2010 YCR [1] (1993) 1 SCC 636 [2] 2003 (1) ALT 448