2002 Supreme(AP) 1053

Andhra Pradesh High Court
Judges : A.GOPAL REDDY
P.Leela Rani - Appellant
Versus
Agency Divisional Officer (Sub Collector), Bhadrachalam - Respondent
Decided On : 09-05-02

Headnote:

Civil Law - Civil Suit – Code of Civil Procedure,1908 - Section 149, Sec 151 - Order 7 Rule 11, Order 39 Rule 1 – Election Matter - Vote - Elections Act, 1952 – Constitution of India – Article 329(b) - A. P. Gram panchayats Act, 1964 - Election Rules 1955 - Rule 4 of Rule 49 - Election Rules 1964 - Rule 54, Rule 49 , sub-rule (2) of Rule 54 - Eligibility - Petitioner as well as second respondent contested for post of Zillah Parishad Territorial constituency (ZPTC) member, venkatapuram Segment of Khammam district and petitioner got elected as zptc member - Second respondent herein filed O. P. before first respondent questioning election of petitioner invoking A. P. Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Rules, 1995 - First respondent election tribunal disposed of O. P setting aside petitioner s election as zptc member from Venkatapuram segment of Khammam District and further declared that second respondent has been duly elected as ZPTC member by a margin of 5 votes - Questioning same, petitioner herein filed W. P stating that first respondent passed ex parte orders without issuing any notice or conducting any enquiry directed third respondent-Election officer to deposit all ballot papers and connected records and registers before it and even though petitioner filed objections with regard to ex parte order , first respondent without appreciating objections and without recording any findings passed an order directing M. R. O. Bhadrachalam for recounting, which was done itself and basing upon recounting, second respondent has been duly declared as elected ZPTC member - Operative portion of order reads as under in circumstances, order passed by Tribunal in O. P is set-aside. O. P shall stand restored to its file - It shall be open to parties to lead evidence in support of their respective contentions - Evidence to be let in by parties shall be recorded - Tribunal shall follow procedure prescribed for recording evidence and necessary findings shall be recorded - Observations, if any, made in this order shall not have any bearing on merits of case - Interlocutory applications, as well as OP shall be disposed of in accordance with law - First respondent cannot proceed with trial of election petition - Petitioner herein filed a memo stating that election petition filed by second respondent-election petitioner before first respondent-Election tribunal questioning election - Petitioner was presented without paying court fee and Tribunal also not directed petitioner to pay deficit court fee within period of which, second respondent filed a counter stating that memo filed by petitioner is not maintainable, but however, first respondent has got power to collect court fee at any stage of suit – Held, Court has been view of foregoing discussion, in a matter of this kind primary responsibility to file an election petition in full compliance with provisions of law is on petitioner who challenges election - If election Tribunal finds non-compliance of mandatory requirement i.e payment of court fee, it has to uphold preliminary objection and has no option except to dismiss petition - It is no part of duty of Election Tribunal to direct payment of court fee after expiry of period of limitation for filing election petition when objection is raised by other side, and cannot exercise dispensing powers to waive non-compliance - Election petition is based on rights, which are purely creature of a statute - Petition has to be rejected on threshold for noncompliance with mandatory provisions of law under Order VII Rule 11 CPC - Court hold that first respondent had not possessed powers of Civil Court under Section 149 cpc for condoning delay in payment of deficit court fee - Once presentation of election petition by second respondent without payment of court fee or with deficit court fee is not a proper presentation, first respondent cannot proceed with trial of election petition - Accordingly, order passed by first respondent suffers from manifest illegality and incurable legal infirmities and therefore cannot be sustained and same is accordingly quashed - Writ Petition allowed.