This writ petition is filed seeking a writ of Prohibition restraining first respondent, namely, Court of Principal District Judge, West Godavari District at Eluru, from proceeding with O.P.No.799 of 2006.

Election to the office of Sarpanch, Kanuru Gram Panchayat of Peravali Mandal in West Godavari District, was held on 02.8.2006. Petitioner and respondents 2 and 3 herein contested the election. Petitioner was declared elected having polled 2081 votes. On 18.8.2006, second respondent filed E.O.P.No.799 of 2006 on the file of first respondent under Sections 233, 19(3) and 22(1) of Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) read with Rule 2(i)(a) and 4(ii) of Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 (the Rules, for brevity). Second respondent prayed to declare the election of petitioner herein as void and to declare her (second respondent) as elected having polled next highest number of votes. As an alternative, a direction to conduct fresh elections to office of Sarpanch was also sought.

After receiving the notice, petitioner herein filed I.A.No.3674 of 2006 to reject the election petition as being without jurisdiction. The same was dismissed on 04.1.2007. First respondent having noticed that the affidavit in lieu of chief examination of P.W.1 has already been filed adjourned the matter for cross-examination. At that stage, petitioner filed the present writ petition on 05.1.2007. It is mainly contended that the election petition filed by second respondent herein cannot come within the scope of Section 22 of the Act and, therefore, the conclusion arrived at by the first respondent while passing orders on 04.1.2007 that it falls under Section 22 of the Act is erroneous. It is also the contention of the petitioner that as per the Rules, election of a sarpanch or ward member of Gram Panchayat can only be assailed before the duly constituted Election Tribunal-cum-Junior Civil Judge.

This Court while ordering notice before admission passed orders staying all further proceedings in O.P.No.799 of 2009 for a period of two weeks. When the matter was listed for admission, interim stay was extended by this Court on three occasions and ultimately the matter was heard finally on 24.4.2007, as the respondents 2 and 5 filed counter affidavits. Fifth respondent, viz., District Panchayat Officer, has taken a stand in the counter that the election O.P., before first respondent is not maintainable and that second respondent has to necessarily pursue the remedy as provided under Section 22 of the Act.

The second respondent in her counter affidavit states that petitioner has four children on the date of election notification, that she contested the election suppressing this fact and that she incurs disqualification under Section 19(3) of the Act. Therefore, second respondent filed petition before the executive authority/Secretary of Gram Panchayat – sixth respondent herein; under Section 22(1) of the Act. No action was taken, and therefore, she filed the petition under Section 22(1) before first respondent read with Section 233 and 19(3) of the Act. There is no bar for such petition. When the petitioner filed I.A.No.3674 of 2006, the same was dismissed by first respondent considering all aspects of the matter and that under Section 22 of the Act, it is only the District Judge who has to decide the questions of disqualification.

While making oral submissions, learned counsel for petitioner, learned Assistant Government Pleader for Panchayat Raj and learned counsel for second respondent stick to their position in the pleadings.

In the background facts and submissions made, question that falls for consideration is whether first respondent inherently lacks jurisdiction to entertain the O.P., as laid by second respondent.

A writ of prohibition is not a right nor it is granted ex debito justitiae. Inferior Tribunal or public authority must be s