( 1 ) THE petitioner is resident of naravada village of dattalur mandal in nellore district. He is also voter in the voters list of naravada gram panchayat. The third respondent was elected as sarpanch of the village. The petitioner herein gave a complaint to the second respondent alleging that the third respondent incurred disqualification for being elected or for being continued as sarpanch of the village. The petitioner alleged that the third respondent is having three children as on 29. 8. 2001, and therefore, incurs disqualification under Section 19 (3) of the A. P. panchayat raj act, 1994 (the act, for brevity ).

( 2 ) THE petitioner filed a writ petition being W. P. No. 22939 of 2001 before this court complaining inaction on the part of the second respondent. By an order dated 11. 2. 2002 this court disposed of the writ petition with a direction to the second respondent to take action on the complaint/representation submitted by the petitioner in accordance with law. The petitioner also filed contempt case No. 806 of 2002 against the second respondent. It is the case of the petitioner that the first respondent herein forwarded the representation of the petitioner to the panchayat officer, naravada to enquire into the matter and submit a report and that the panchayat officer submitted a report to the first respondent accordingly to the effect that the third respondent is having three children and that the third child was born on 22. 12. 1994 and not on 30. 8. 1997 as per the certificate issued by the municipality. Based on the said report, the first respondent vide memo, in roc. No. 3975/2003-a6 dated 15. 3. 2004 informed the petitioner that the third respondent does not attract disqualification under Section 19 (3) of the act. Assailing the said memo, the present writ petition is filed for a writ of mandamus declaring the impugned memo as illegal, arbitrary and without jurisdiction. The petitioner seeks a consequential direction to the first respondent to refer the matter to the district court as per provisions of Section 22 of the act.

( 3 ) THE writ petition was admitted on 19. 4. 2004. On 3. 9. 2004 this court passed interim orders in W. P. m. p. No. 9470 of 2004 suspending the impugned memorandum, as the respondents did not file counter- affidavits in spite of service of notices. The third respondent immediately moved this court by filing w. v. m. p. No. 2923 of 2004 praying this court to vacate the interim order. As a short question is involved and the arguments for the purpose of interlocutory applications as well as the main writ petition being the same, with the consent of the learned counsel for respective parties, the matter was heard finally.

( 4 ) THE third respondent in the counter- affidavit asserts that he does not incur any disqualification before or after the election as sarpanch of naravada gram panchayat on the ground that he is having more than two children. He further states that on the representation given by the petitioner, the first respondent directed the second respondent and divisional panchayat officer (dpo), kavali to enquire into the matter. The second respondent conducted enquiry and submitted a report on 7. 8. 2003 finding that he did not incur any disqualification and that the third child was born before the cut off date prescribed under the act. Taking into consideration report submitted by the second respondent and the report of the dpo, kavali dated 10. 12. 2003, the first respondent issued impugned order. All other allegations made by the petitioner are denied.

( 5 ) LEARNED counsel for the petitioner Sri O. Manoher Reddy while placing reliance on Section 22 of the act would submit that no power is conferred on the first respondent to decide the question whether or not a sarpanch is not qualified or has become disqualified under Section 19 (3) of the act. According to the learned counsel when a complaint is made alleging disqualification the executive authority has t