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Gadde Venkateswara Rao Vs. K. Venkata Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. 3179 of 1970
Judge
Reported inAIR1972AP120
ActsAndhra Pradesh Gram Panchayat (Conduct of Election) Rules, 1964 - Rule 54; Code of Civil Procedure (CPC),1908 - Sections 151 - Order 39, Rule 1
AppellantGadde Venkateswara Rao
RespondentK. Venkata Rao and anr.
Appellant AdvocateB. Siva Reddy, Adv.
Respondent AdvocateG.V. Sitasrama Rao, Adv. for ;P. Babulu Reddy, Adv.
Excerpt:
.....gram panchayat (conduct of election) rules, 1964 and section 151 and order 39 rule 1 of code of civil procedure, 1908 - challenge of election of petitioner as 'sarpanch' pending - injunction to restrain petitioner from functioning as 'sarpanch' granted by election court - procedures of election court are governed by provisions of special enactment under which it was created and not by code of civil procedure(cpc) - grant of injunction by election court applying cpc lacks jurisdiction - held, order restraining petitioners functioning as 'sarpanch' liable to be set aside. - - it is now well settled that the code of civil procedure has no general application to the special tribunals or authorities created under special enactment's for the purpose of deciding the disputes arising..........empowered to grant a temporary injunction under order 39, rule 1 and section 151 of the code of civil procedure restraining the successful candidate for the election of a member or sarpanch of a gram panchayat, pending disposal of the disputes before it. 2. the material facts are not only not in dispute but lie in a short compass may be stated; the petitioner was elected as a member and subsequently as the sarpanch of the gram panchayat of varni in the district of nizambad at the general elections held on june 7, 1970, to function from july, 1 1970 for a period of five years. an election petition, o. p. no. 10 of 1970 was filed on the file of the election court district munsif, bodhan by the ist respondent challenging the validity of the election of the petitioner as sarpanch of the.....
Judgment:

1. This application under Art. 226 of the Constitution of India, gives rise to a short question of law. whether election court competent to decide the election disputes arising under the Andhra Pradesh Gram Panchayats Act, 1964 is or is not empowered to grant a temporary injunction under Order 39, Rule 1 and Section 151 of the Code of Civil Procedure restraining the successful candidate for the election of a member or sarpanch of a gram panchayat, pending disposal of the disputes before it.

2. The material facts are not only not in dispute but lie in a short compass may be stated; The petitioner was elected as a member and subsequently as the sarpanch of the gram panchayat of Varni in the district of Nizambad at the general elections held on June 7, 1970, to function from July, 1 1970 for a period of five years. An election petition, O. P. No. 10 of 1970 was filed on the file of the Election Court District Munsif, Bodhan by the Ist respondent challenging the validity of the election of the petitioner as sarpanch of the gram panchayat on various grounds. Pending the final adjudication of the O. P. an application 1. A. No. 377 of 1970 to restrain the petitioner herein from functioning as sarpanch, was filed by the Ist respondent herein. Rejecting the objections raised by the petitioner, the 2nd respondent granted the injunction as prayed for. Hence, this Writ petition.

3. Sri B. Siva Reddy for the petitioner contends that the impugned order passed by the election Court is illegal and without jurisdiction. Sri G. V. Sitarama Rao appearing for Sri Babul Reddy, for the Ist respondent, opposed the claim of the Petitioner contending Inter alia that the second respondent has ample power and jurisdiction to pass the impugned order.

4. The question, therefore, that falls for decision is whether the order passed by the election court granting injunction restraining the sarpanch of a gram panchayat from functioning as such pending final decision in the O. P. is valid as urged by the respondent, or illegal and without jurisdiction as contended by the petitioner.

5. The answer to the question turns on the applicability or otherwise of the provisions of section 151 of O, 39, R. 1 of the Code of Civil Procedure to the facts of the present case. The code of Civil Procedure is a general law prescribing the procedure to be adopted by the Courts in dealing with the matters that come up before them for adjudication according to law. It is now well settled that the Code of Civil Procedure has no general application to the special tribunals or authorities created under special enactment's for the purpose of deciding the disputes arising under those statutes, except to the extent indicated thereunder. The tribunals may be judicial, quasi-juridical or administrative in character and the proceedings before such tribunals are governed by the specific provisions of the special Acts or the Rulers made thereunder in that regard.

6. This brings me to examine the question whether the election Court a Civil Court to which the Code of Civil Procedure is applicable or a special tribunal created under the Andhra Pradesh Gram Panchayats Act. 1964 and the rules made thereunder, for the purpose of deciding the disputes relating to the election of members sarpanch and up sarpanch of the gram panchayats. In order to find out whether the election court is a special tribunal created under the Act, it is necessary to refer to the material provisions of the Act and the rulers made thereunder.

7. The Andhra Pradesh Gram Panchayats Act, 1964 (hereinafter called the Act) is intended to consolidate and amend the law relating to the administration of village affairs of gram panchayats in the State. Section 12 of the Act provides for the election of sarpanch and upa-sarpanch for every gram panchayat from amongst the members of the gram panchayat elected under S. 9 of the Act. The election of a member under Section 9 or of a sarpanch and upa-sarpanch under Section 12 (1) of the Act cannot be called in question except by an election petition presented in accordance with the Andhra Pradesh Gram 1964 framed by the State Government by virtue of its rule making power under Cl. (1) of sub-section (2) of S. 217 of the Act on March, 18, 1964 in G. O. Ms. No. 256 Panchayat Raj (Panchayats VII). The aforesaid rules having statutory force govern the procedure to be followed by the election court in deciding the dispute relating to the election of the members, sarpanch and upa-sarpanch of the gram panchayats.

8. It is relevant and necessary at this stage to briefly refer to the provisions of Rules 49 to 60 the said rules, which are material for the decision on the point at issue. Under Rule 49 (1), no election held under the Act, whether it be of a member, sarpanch or upa-sarpanch of a gram panchayat can be challenged except by an election petition presented in accordance with the rules to an election court by any candidate or elector against the successful candidate. The District Munsif having territorial jurisdiction over the place in which the office of the gram panchayat is situated, office of the gram panchayat is situated, or if there is more than one such District Munsif, the Principal District Munsif shall be the election court. The District Judge is empowered under the proviso to sub-rule (2) of R. 49 to transfer any application from one District Munsif's Court to another Court of District Munsif within his jurisdiction and the transferee Court, in such circumstances, shall be deemed to be the election court as per sub-rule (3) of that rule for the purpose of such application. A specific procedure has been prescribed under the Rules for the presentation and disposal of the election petitions. Rule 50 prescribes a period of fifteen day us from the date or declaration of the result of the election, for presenting the election petition to the election Court. Rules 51, 52 and 53 also relate to the mode of filing the election petitions. Rule 54 which is material for our purpose, reads thus:-

'54. (1) Every election petition shall be inquired into by the election Court as nearly as may be in accordance with the procedure laid down in the Code of Civil Procedure 1908, to the trial of suits:

Provided that it shall only be necessary for the election court to make a memorandum of the substance of the evidence of any witness examined by it.

(2) The election court shall have the powers which are vested in a court under the Code of Civil Procedure 1908, when trying a suit, in respect of the following matters:

(a) discovery and inspection;

(b) enforcing the attendance of witnesses and requiring the deposit of their expenses;

(c) compelling the production of documents:

(d) examining witnesses on oath;

(e) receipt of evidence taken on affidavit; and

(f) issuing commissions for examination of witnesses summoning and examining suo motu any person whose evidence appears to him to be material.'

Rule 54 states that the Code of Civil Procedure is applicable only in so far as the matters specified in Cls. (a) to (f) of sub-rule (2) thereof to the proceedings before the election Court. Rule 55 states that 'no witness or other person shall be required to state for whom he has voted at an election.' By Rule 56, 'no election petition shall be withdrawn without the leave of the electron court'. Rule 57 requires any order made by an election court regarding costs of enquiry to be placed before the court of civil jurisdiction which is competent to execute such order. By Rule 58 (1), an election petition, on the death of a sole petitioner or of the Survivor of several petitioners, shall abate. Rule 58 (2) provides for giving evidence by the returned candidates or candidates or any other party to the proceeding, to establish at the enquiry into an election petition preferred by any unsuccessful candidate claiming a seat for himself that the election would have been void if the had been declared as successful candidate and a petition had been presented questioning the validity of his election. Under Rule 59, an election of the returned candidate shall be void. if he or his authorised agent has been prove to have indulged in corrupt practices specified therein or the result of the election has been materially affected by an irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made thereunder. Rule 60 empowers the election court to declare whether the election of the returned candidate is void under Rule 59 and also pass an order either declaring any other party to the petition who is entitled under the rules, as being duly elected, or order a fresh election under sub-rule (3) thereof. The order of the election Court under sub-rules (1) and (2) of that rule shall be final and binding on the parties.

9. On a perusal of the scheme and intendment of the Act when read with the material provisions thereof. it admits of n doubt that the Act is not general law but a special law enacted by the State Legislature for administration of village affairs by gram panchayats in the State. A combined reading of the RR. 49 to 60 manifests that the election court is a special tribunal created under Rule 49 for the purposes of deciding the election disputes arising under the Act in respect of the election of a member, sarpanch or upa-sarpanch of a gram panchayat. Rules 49 to 60 circumscribe the powers of and regulate the procedure before the election court in respect of filing and disposal of the election petitions. The District Munsif having jurisdiction over the place in which the office of the gram panchayat is situated, is the concerned election court for the purpose of deciding the disputes relating to the election of a member, sarpanch or upa-sarpanch of that gram panchayat. The District Munsif, is functioning only as a persona designate but not as a Court having the jurisdiction and powers of a Civil Court. The provisions of Rule 54 referred to above, establish beyond doubt that the election court is not empowered to issue injunctions just like a civil court under Order 39, Rule 1 and Section 151 of the Code of Civil Procedure. As the election court is not a civil court for all purposes, it must be held that it has no inherent powers analogous to those exercisable by a Civil Court under Sec. 151 of the Code of a Civil Procedure; nor can be the provisions of Order 39, Rule 1 of the Civil P. c. be invoked by the election Court. In B. Swaminatha Janaki Venkata Ramana Reddy v. Ammiraju (Writ Petn. No. 1596 of 1966. D/- 1-4-1970 (Andh Pra). myself speaking for the court observed.

'The proceedings before the Election Commissioner for the disposal of the election disputes are not governed by the Code of Civil Procedure, but they are governed by the rules specifically made under the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959, x x x x x The Code of Civil Procedure is not applicable to the disposal of the election petitions except to the extent permissible under Rule 57 governing the procedure to inquire into the election disputes. The provisions of the Code of Civil Procedures relating to the examination of witnesses, discovery and inspection and other specified in Clauses (a) to (f) in sub-rule (6) to Rule 57 are made applicable by virtue of the specific provision in the rule, but not due to the general application of the provisions of the Code of Civil Procedures. Therefore, the provisions of O. I. R. 10 of the Code of Civil Procedure cannot be invoked in the instant case. The Election Commissioner. in our view, is not competent to transpose the 9th respondent as a petitioner and continue the petition on the facts and circumstances of the case.'

In M. B. G. Sastry v. State of Andhra Pradesh (Writ Petn. NO. 50712 of 1968. D/- 10-6-1970) = (1970-2 Andh WR SN 1) it was held by me that the Andhra Pradesh Disciplinary Proceedings Tribunal, though presided over by a District Judge, a judicial officer, is not a civil court and it has no inherent powers analogous to these of a Civil Court under Section 151 of the Code of Civil Procedure and the procedure that governs the enquiries by the tribunal must be specifically provided either by the special enactment under which it has been created or the rules made thereunder. The Code of Civil Procedure has no general application for the enquiries to be conducted by the Tribunal for Disciplinary Proceedings unless the special statute or the rules made thereunder specifically provide for the same. In R. Sarojini v. B. Lakshmana Rao, (1967) Andh WR 972 it was held that the provisions of the Code of Civil Procedure, in so far as they relate to restoration of petitions filed under the Industrial Disputes Act, are not applicable as there is nothing in the provisions of the Industrial Disputes Act or the rules made thereunder to enable of Order 9 of the Code of Civil Procedure.

10. For all the reasons stated. I have no hesitation to hold that the election court is not competent to function as a civil court to exercise the powers under the Code of Civil Procedure in general and the provisions of Section 151 and Order 29, Rule 1 of the Code of Civil Procedure in particular. The question is, therefore answered in favour of the petitioner.

11. In the result, the writ petition is allowed with costs one set payable by the 1st respondent. Advocate's fee is fixed at Rs. 100/-.

12. Petition allowed.


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