WP/16402/2004 of Sadhanapalli Bheemaraju, Vs The Secretary, on 31 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

FRIDAY, THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE B. SUDERSHAN REDDY

and THE HON'BLE MR JUSTICE T.CH.SURYA RAO

WRIT PETITION NO : 16402 of 2004

Between:

1 Sadhanapalli Bheemaraju, S/o Late Bennaiah, R/o Mallavaram Mamilla, Addatigala Mandalam, East Godavari District.

2 Battula Chinavenkata Satyanarayana, S/o Surya Rao, R/o Raipalli, Addatigala Mandalam, East Godavari District.3 P.V. Ramana Reddy, S/o Neelam Reddy, R/o Yarlagadda, Yellavaram Mandal, East Godavari District.

..... PETITIONERS.

AND

1 The Secretary, A.P. Legislative Assembly, Hyderabad.2 Government of Andhra Pradesh, Principal Secretary, Social Welfare (CU) Department, Secretariat, Hyderabad. 3 The Commissioner Tribal Welfare, State of A.P. TeluguSamkshema , Masab Tank, Hyderabad.

3 The Commissioner Tribal Welfare, State of A.P. Telugu 4 The District Collector, East Godavari District, Kakinada.5 The Mandal Revenue Officer, Maredmilli, Maredmilli Mandal, East Godavari District.

6 Chinnam Babu Ramesh, S/o Joga Rao, R/o Rampachodavaram, East Godavari District.

7 The Election commission of India, rep. by its Secretary Nirvochan Sadan, Ashok Road, New Delhi-110 001. Nirvochan Sadan, Ashok Road, New Delhi-110 001.

R7 is impleaded as per court order dt. 22-9-2004 in WPMP 22358 of 2004. WPMP 22358 of 2004.

.....RESPONDENTS.

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may be pleased toissue a writ, or order or direction more particularly in the nature of Writ of Mandamusdeclaring that Respondent No.6 is not qualified to sit as a Member of LegislativeAssembly in Andhra Pradesh as he does not possess the basic qualificationprescribed under Clause 3 (a) of 190 of Constitution of India read with Sec. 5 ofRepresentation of the Peoples Act 1951 and the 38 Yellavaram (ST) Assemblyconstituency has fallen vacant and alternatively issue of Quo-warranto directing R6to show under what authority he is occupying the seat in Andhra PradeshLegislative Assembly Member representing 38 Yellavaram ( Scheduled TribeConstituency)

Counsel for the Petitioners: MR.K.S.MURTHY

Counsel for the Respondents 1 to 5: GP FOR LAW & LEGISLATIVE AFFAIRS

Counsel for the Respondent No.6 : Mr. G.Ratna Sudhakar Counsel for the Respondent No.7 : Smt. C.Jayashree Sarathy.

The Court made the following :

ORDER:(Per TCSR, J)

The petitioners seek a writ of mandamus, declaring that Respondent No.6 is notqualified to sit as a Member of Legislative Assembly in Andhra Pradesh as he doesnot possess the basic qualification prescribed under clause 3(a) of Article 190 of theConstitution of India read with Section 5 of the Representation of the People Act, 1951 and consequently No.38 Yellavaram (ST) Assembly Constituency has fallenvacant. Alternatively, the petitioners also seek a writ of quo warranto directing thesixth respondent to show under what authority he is occupying the seat as Memberof the A.P. Legislative Assembly representing the 38[th] Yellavaram (ST)Constituency and for a further direction to the first respondent not to permit the sixthRespondent to function as Member of the A.P. Legislative Assembly.

The facts lie in a narrow compass: The first petitioner claiming himself to be a tribaland resident of Mallavaram Mamilla Village which is a part of Yellavaram Assemblysegment; the second petitioner claiming himself to be the voter of the said Assemblysegment and political activist of the Indian National Congress; and the thirdpetitioner professing to be a Scheduled Tribe candidate, together filed the presentwrit petition. The third petitioner contested in the election to the A.P.State LegislativeAssembly from Yellavaram Assembly Constituency and eventually lost the electionqua the sixth respondent. Petitioners claim that they are interested in seeing thatNo.38 Yellavaram Assembly Constituency is represented by Scheduled Tribe alone,filed the writ petition as aforesaid assailing the election of the sixth respondent.

By means of a notification dated 24.03.2004, notice of election in Form-I was issued.Pursuant thereto, nominations were filed and the Returning Officer received them upto 31.03.2004. The third petitioner filed his nomination on behalf of the IndianNational Congress, whereas the sixth respondent filed his nomination as acandidate of Telugu Desam party. Objections seem to have been filed against thenomination of sixth respondent on the premise that he does not belong to ScheduledTribe and he belongs to Adi Andhra Mala Caste, which is a Scheduled Caste.Rejecting all objections, nomination of the sixth respondent was accepted by theReturning Officer. Election to the said Assembly Constituency was conducted on26.04.2004, and counting of the votes took place on 11.05.2004. The sixthrespondent was declared to have been duly elected at the culmination of countingprocess. Consequently the statutory notification dated 12.05.2004 of the ElectionCommission of India was published in the A.P. Gazette, containing the names of theMembers who have been duly elected to the State Legislative Assembly.

That Valmiki community in Agency Tracks is a Scheduled Tribe notified as per theprovisions of the Constitution. However, some persons from Mala Caste, which is aScheduled Caste, claiming themselves to be the descendants of Valmiki, have been

seeking Scheduled Tribe status. When several persons from Scheduled Castesought to get a clearance from the Government to get the status of Valmiki andclaimed the status of Scheduled Tribe, Courts came down heavily and set aside theorders in that regard. The father of the sixth respondent got elected to the A.P.StateLegislative Assembly as a Scheduled Tribe candidate. However, his election waschallenged in the Election Petition No.12 of 1985. That Election Petition wasallowed declaring that the father of the sixth respondent was Adi Andhra which is aScheduled Caste and he did not belong to Scheduled Tribe community andconsequently his election was set aside. The petitioners upon making enquirieswhich took a long time for securing the copy of judgment in Election Petition No.12of 1985 on the file of High Court of A.P., ultimately realized that the certificate issuedby the Revenue Authorities in favour of the sixth respondent was only a temporaryone and valid for six months and that certificate would be issued usually for thepurpose of admission into Educational Institutions. Such certificate ought not to havebeen accepted by the Returning Officer at all. Sixth respondent is thus not eligible tohold the Office of Member of Legislative Assembly i.e. from 38 Yellavaram AssemblyConstituency (Scheduled Tribe). Petitioners made representations for thecancellation of the certificate but could not succeed. They were not even given acopy of the said certificate when solicited by the Mandal Revenue Officer. Therefore,they have no effective alternative remedy except to file the present writ petition.Rule Nisi was ordered and records were called for. Pursuant to the notices, the sixthrespondent appeared through his counsel. The petitioners got the seventhrespondent impleaded. Seventh respondent filed a separate counter resisting thepetition.

The case of the sixth respondent is that his mother is admittedly a Scheduled Tribewoman. He was recognized as a Scheduled Tribe person by the Scheduled Tribecommunity. After a thorough enquiry by the authorities, he was given ScheduledTribe community certificate. He was also given all the benefits available to aScheduled Tribe person during his educational career. The third petitioner did notraise any objection as regards the status of the sixth respondent at the time ofscrutiny of the nominations as he was fully aware that the sixth respondent was aScheduled Tribe person and that he could not produce any evidence to establishthat he was not a Scheduled Tribe person. Having not done so, he has chosen to filethe present writ petition on the sole ground that the father of the sixth respondent had been declared to be a Scheduled Caste person in Election Petition No.12 of 1985and the status of the sixth respondent cannot be declared as a Non-Scheduled Tribeperson on that basis. When admittedly he was given certificate by the authoritiesafter due enquiry and was recognised by the community of Scheduled Tribe, it washis further case that the writ petition itself is not maintainable. Since severaldisputable questions of fact and issues relating to the community cannot be decidedin a writ petition, the petitioner should have chosen to avail the statutory remedies.The sixth respondent denied all the allegations made inter alia in the writ petition.

Conclusion

It is the case of the seventh respondent that since indirectly the petitioners arequestioning the election of the sixth respondent, they cannot maintain the writpetition and the same is barred under Article 329(b) of the Constitution of lndia. Theappropriate remedy for the petitioners is to file an Election Petition as per theprovisions of Sections 82 to 86 of the Representation of the People Act, 1951. It isfor the Election Tribunal to enquire and decide whether on the date of election, theelected candidate was not qualified to be chosen to fill the seat and that he is not theauthority to enquire and decide about the status of the sixth respondent.

The petitioners seek to place reliance upon certain documents annexed tothe writ petition. On the side of the sixth respondent, he too filed certain documentsas material papers. For convenience sake it is expedient to assign exhibit numbersto those documents so that they can conveniently be referred to and discussed.They are marked as Exs.A.1 to A.11 and B.1 to B.11.

Sri K.S.Murthy, learned counsel appearing for the petitioners represents that thejudgment of this Court in E.P.No.12 of 1985 clearly shows that the father of the sixthrespondent is a Scheduled Caste person and what more evidence is required thanthat. It is further represented that since it is a fraud played upon the Constitution, thewrit petition can be maintained. Finally, he represents that in view of the judgment inE.P.12 of 1985, it is no more disputed fact and can squarely be considered.

Per contra, Sri E. Manohar, learned senior counsel represents that the judgment inE.P.No.12 of 1985 is not a judgment in rem and the sixth respondent not being aparty to the same, the findings given therein will not bind him; that the contentiousissues as regards caste of the sixth respondent and as a matter of that any otherissues pertaining to the election of the elected candidate shall have to be determined only in a properly constituted Election Petition and the present writpetition cannot be maintained; and that the documents filed along with the counteraffidavit clearly show that the caste of the sixth respondent as Scheduled Tribe andtherefore sixth respondent is a Scheduled Tribe.

Before adverting to the respective contentions, it is expedient to state the undisputedfacts at the out set. By means of a Notification dated 24.03.2004, elections to theA.P.State Legislative Assembly were notified. The third petitioner contested in thesaid election as a candidate of Indian National Congress from No.38 YellavaramConstituency. The said Constituency was reserved for Scheduled Tribe. The sixthrespondent contested in the said election as against the third petitioner as TeluguDesam party candidate. There has been no dispute that the third petitioner belongsto Konda Reddy caste, which has been notified under the Presidential Order asScheduled Tribe. Poling was conducted on

26.04.2004 and counting of the votes was made on 11.05.2004. Sixth respondentwas declared to have been elected duly in the said election. The election of the sixthrespondent is now being assailed not on any allegations except on the premise thathe does not belong to Scheduled Tribe but belongs to Adi Andhra Mala Caste.Therefore, the case of the petitioners is that sixth respondent is ineligible to occupythe Office. In that view of the matter, the caste of sixth respondent becomes moresignificant. The trump card upon which the petitioners seek to place reliance tobuttress their contention is Ex.A.1-xerox copy of the judgment in E.P.No.12 of 1985,dated 23.03.1987. The first respondent therein is one Chinnam Jogarao, S/o Balosuand that he is the father of the sixth respondent is not controverted. Obviously, thesixth respondent is not a party thereto. Since it is a judgment rendered in an ElectionPetition, indubitably it is not a judgment in rem. Inasmuch as the father of the sixthrespondent is a party thereto; Ex.A.1 becomes relevant and has the evidentiaryvalue like any other document. As can be seen from Ex.A.1, the father of the sixthrespondent asserted that he belonged to Valmiki tribe of Rampachodavaram agencyarea. Overwhelming evidence was adduced in that case with reference to the Deathand Birth Register extract, school certificate, etc. to buttress the plea that thereturned candidate belonged to Adi Andhra caste. A learned single Judge of thisCourt eventually came to a conclusion that the father of the sixth respondent didbelong to Adi Andhra caste. However, in the instant case, the plea of the sixthrespondent appears to be that since his mother is a tribal woman, he becomes a

tribal and that he has been recognised by the community as a whole as a tribal and,therefore, he claims that he belongs to Scheduled Tribe. This plea taken by the sixthrespondent is obviously not identical to the plea taken by his father inter alia in thecounter filed in E.P.No.12 of 1985. Even assuming that the father of the sixthrespondent is a Scheduled Caste person, still the plea of the sixth respondent thathe is a tribal on account of the fact that he was born to a Scheduled Tribe womanand, therefore, becomes a Tribal by virtue of the recognition received by him fromthe Scheduled Tribe community as a whole, is got to be appreciated and decidedseparately. The conclusions reached by this Court inter alia in the said judgmenthave obviously been reached with reference to the respective pleas taken by theparties and evidence adduced in support thereof. That by itself, therefore, cannotconclusively determine the contentious issue as to whether the sixth respondentbelongs to Scheduled Tribe or Scheduled Caste. No other document has been filedon the side of the petitioner with reference to which it can decisively be said that thesixth respondent belongs to Scheduled Caste and is, therefore, a non-tribal. Thesixth respondent seeks to place reliance upon Ex.B.5-the caste certificate issued bythe Mandal Revenue Officer in Ref.(C)129/04, dated 22.08.2004, Ex.B.6-thecertificate issued by the Head Master, T.W.A.U.P.School, Kundada, dated12.10.2004, Ex.B.7-another caste certificate issued in Annexure-III in Ref.(C)2/04,dated 27.01.2004, Ex.B.8-another certificate issued by the Mandal Revenue Officerin Ref.(C)30/ST/8/89, dated 20.01.1989, and Ex.B.9-yet another caste certificate inAnnexure-III in STR Dis.C/30/130/89, dated 14.08.1989 by the Mandal RevenueOfficer. Of all these documents, Ex.B.5 dated 22.08.2004 and Ex.B.6 dated12.10.2004 are obviously documents in the nature of post litem motem and,therefore, they lose every significance. However, the documents-Exs.B.8 and B.9clearly pertain to the year 1989. It is obvious from Ex.B.8 that the mother of the sixthrespondent by name Smt. Koragani Anasuya belonged to Valmiki community andshe is no more and that the said certificate had been issued basing on the caste ofhis mother. Ex.B.9 dated 14.08.1989 shows that the sixth respondent belongs toValmiki Tribe. An endorsement in vernacular Language has been made at thebottom of this document by the Village Assistant and the Mandal Revenue Inspectorto the effect that as per the orders of the Sub-Collector in R.Dis.E.1951/89, dated10.08.1989 the person by name Chinnam Babu Ramesh, S/o Chinnam Joga Raohas been declared as Valmiki caste person. The proceeding of the Sub-Collector inR.Dis.E.1951/89, dated 10.08.1989 referred to in this Annexure-III has been filed separately which has not been assailed in this case shows that the Sub-Collector,Rampachodavaram directed the Mandal Revenue Officer to issue the necessarycertificate declaring that the sixth respondent belongs to Valmiki caste. In thisconnection, the sixth respondent also seeks to place reliance upon Exs.B.1 to B.3.They are in the nature of instructions issued by the Government of India and theState Government respectively for deciding the status of children belonging to thecouple one of whom belongs to Scheduled Caste/Scheduled Tribe. As per theinstructions that unlike in the case of Scheduled Caste, the members of ScheduledTribes remained in homogenous groups and their social custom has a greaterbinding force in the day-to-day life. In the case of marriage between a tribal with anon-tribal, the main factor for consideration is whether the couple are accepted bythe tribal Society to which the tribal spouse belongs and if he or she, as the casemay be, is accepted by the Society, then their children shall be deemed to beTribals. Placing reliance upon these documents, the learned senior counsel seeksto contend that the mother of the sixth respondent is obviously a Scheduled Tribewoman and the sixth respondent in that view of the matter shall have to beconsidered as a tribal.

In fact a Division Bench of this Court in W.V.S. SATYANARAYANA v. DIRECTOROF TRIBAL WELFARE, A.P., HYDERABAD quoted with approval G.O.Ms.No.371,Employment & Social Welfare (E.2) Department, dated 13.04.1976 which is soughtto be relied upon by the sixth respondent and marked in this case as Ex.B.2. Placingreliance upon the said G.O., this Court held that the status or caste of a personwould have to be determined upon the recognition received from the members of thecommunity of either of the parents and the acceptance of the caste people.

The law appears to be fairly settled by now that the recognition of thecommunity plays a vital role in deciding the caste or tribe of a particular person,which is in dispute. Suffice to quote the recent pronouncement of the Apex Court inPUNIT RAI v. DINESH CHAUDHARY. Athree judge bench having considered itsearlier judgments held in para 31 thus:

“If he is considered to be a member of the Scheduled Caste, he has to beaccepted by the community.”

According to the facts in that case for paucity of evidence that the respondent- Dinesh Chaudhary had ever been treated to be a member of the Scheduled Casteand that the respondent had been adopting and practicing the customary traits andtenets of the community to which he claimed to have belonged to, more particularlywhen the evidence on record suggested that he had not been treated so, the ApexCourt repelled the contention of the respondent that he belonged to ScheduledCaste community. It is no doubt true that making a false claim that one belonged toScheduled Caste or Scheduled Tribe thereby depriving the genuine claims of thepersons belonging to Scheduled Caste or Scheduled Tribe, as the case may be, isnothing but playing fraud on the Constitution. In para 39 it was held thus:

“A person in fact not belonging to the Scheduled Caste, if claims himself to bea member thereof by procuring a bogus caste certificate, would be committingfraud on the Constitution. No court of law can encourage commission of suchfraud.”

But, then such a conclusion that fraud has been played upon the Constitution shouldinvariably be preceded by a valid finding that the caste certificate produced by aperson is nothing but a bogus caste certificate. That again depends upon the natureof evidence adduced on either side. Needless to observe that the conclusion that thecaste certificate produced by the sixth respondent is either genuine or bogus, is acontentious question of fact which shall have to be decided by a competent Court.We are sure that such a process shall not be undertaken in this writ petition.

Furthermore, it is not a case where the point involved is ostensibly a point oflaw but is required to be substantiated by facts where the parties raising that pointare entitled to plead and prove such facts by evidence. On the contrary, it is a purequestion of fact when traversed by the opposite side becomes a contentiousquestion of fact and such seriously disputed question of fact cannot be decidedwhile exercising extraordinary jurisdiction under Article 226 of the Constitution.

In view of the rival contentions, the contentious issue in this case mainlydepends upon the evidence as to whether the sixth respondent has beenrecognized by Valmiki Tribe people as belonging to the said Tribe having acceptedthe marriage between a woman belonging to the Tribe with another spousebelonging to Scheduled Caste and that the person claiming to be a member

belonging to Scheduled Tribe has been following the basic traits and tenets of thatcommunity which requires the appreciation of both oral and documentary evidenceto be adduced. It is a pure question of fact and in the absence of evidence adducedon either side cannot be effectively adjudicated as held by the Apex Court in PunitRai’s case (referred to supra). Such an exercise cannot be undertaken in this writpetition. In our view, it can validly be done only in a properly constituted electionpetition where both parties will have an opportunity to adduce evidence in support oftheir respective claims. Therefore, it is not safe nay hazardous to decide the caste ofsixth respondent placing reliance upon Ex.A.1-xerox copy of the judgment inE.P.No.12 of 1985 alone.

All these issues which are very much germane for consideration for arriving ata conclusion about the caste of a particular person have obviously not been arisenin the Election Petition No.12 of 1985.

Apropos the maintainability of the present writ petition, strong reliance has beensought to be placed by the learned counsel for the petitioners upon the judgment ofthe Apex Court in K.VENKATACHALAM v. A.SWAMICKAN AND ANOTHER.Thatwas a case where the appellant and the respondents contested in the generalelections to the Legislative Assembly of Tamil Nadu held in the month of December,1994. A year after the declaration of the election, writ petition was filed assailing theelection of the appellant on the premise that he was not qualified to be a member ofTamil Nadu Legislative Assembly representing Lalgudi Assembly Constituencysince he was not an elector in the electoral roll of Lalgudi Assembly Constituency. Itwas alleged that the appellant impersonated another having the same name in theelectoral roll of Lalgudi Assembly Constituency and thus had sworn a false affidavitthat he was an elector of that Constituency and therefore his act was fraudulent anda criminal act. Writ Petition was dismissed by a learned Single Judge of the HighCourt of Madras and in appeal the Apex Court, having regard to the fact that therehad been no dispute nay the finding of the High Court that the appellant being anelector in the electoral roll for Lalgudi Assembly Constituency having not beenassailed he in a blatant and fraudulent manner represented to be an elector of thatConstituency while using similarity in the name of another person, was of the viewthat such an act on the part of the appellant would tantamount to a fraud on theConstitution. In that context, it was held by the Apex Court that Article 226 of theConstitution of India was couched in the widest possible terms and unless there had been a clear bar to the jurisdiction of the High Court its powers under Article 226could be exercised when there has been any act against any provision of law orviolative of the constitutional provisions and when recourse could not be had to theprovisions of the Act for the appropriate relief. A Constitution Bench of the ApexCourt in N.P.PONNUSWAMI v. RETURNING OFFICER held in para 9 thus:

“The law of elections in India does not contemplate that there should be twoattacks on matters connected with election proceedings, one while they aregoing on by invoking the extraordinary jurisdiction of the High Court underArticle 226 of the Constitution (the ordinary jurisdiction of the courts havingbeen expressly excluded), and another after they have been completed bymeans of an election petition.”

The view expressed by the Apex Court in Ponnuswami’s case has been quoted withapproval by a subsequent judgment in MOHINDER SINGH GILL v. CHIEFELECTION COMMISSIONER. However, the Court held that having regard to thenon obstante clause in Article 329 of the Constitution of India, Article 226 standspushed out where the dispute had taken the form of calling in question, except inspecial situations pointed out, but left unexplored in Ponnuswami’s case. Whileconsidering the unexplored situations in Ponnuswami’s case in the latter judgmentthe Apex Court sought to demarcate the area which is available for interference bythe High Court in para 34 thus:

“But what is banned is not anything whatsoever done or directed by theCommissioner but everything he does or directs in furtherance of the election,not contrarywise. For example, after the President notifies the nation on theholding of elections under Section 15 and the Commissioner publishes thecalendar for the polls under Section 30, if the latter orders Returning Officersto accept only one nomination or only those which come from one party asdistinguished from other parties or independents, is that order immune fromimmediate attack. We think not. Because the Commissioner is preventing anelection, not promoting it and the Court’s review of that order will facilitate theflow, not stop the stream. Election, wide or narrow be its connotation, meanschoice from a possible plurality, monolithic politics not being our genius orreality, and if that concept is crippled by the Commissioner’s act, he holds noelection at all.”

Thus, the Apex Court sought to carve out an area left untouched in Ponnuswami’scase where the jurisdiction of the High Court under Article 226 of the Constitution ofIndia can be clutched at.

Sri E.Manohar, learned senior counsel seeks to place reliance upon a recentjudgment of the Apex Court in MANDA JAGANATH v. K.S.RATHNAM ANDOTHERS.The Apex Court while considering its earlier judgments in Ponnuswami’scase and M.S.Gill’s case has sought to add a few more dimensions to the areas inrespect whereof the jurisdiction of the High Courts under Article 226 of theConstitution of India could be availed. In para 18, the Apex Court held thus:

“Of course, what is stated by this Court hereinabove is not exhaustive of aReturning Officer’s possible erroneous actions which are amenable tocorrection in the writ jurisdiction of the courts. But the fact remains that sucherrors should have the effect of interfering in the free flow of the scheduledelection or hinder the progress of the election which is the paramountconsideration. If by an erroneous order conduct of the election is not hinderedthen the courts under Article 226 of the Constitution should not interfere withthe orders of the Returning Officers, remedy for which lies in an electionpetition only.”

Analysis

That was a case where the nomination filed by the first respondent was beset withcertain omissions and scoring off. The Form-B submitted by the first respondent wasblank in columns 2 to 7 and scratch line indicating scoring of the requirement of thecolumns was noticed. In view of the same, following the guidelines of the ElectionCommission of India, the Returning Officer rejected Form-B filed by the firstrespondent while accepting his nomination as an independent candidate andtherefore he did not allot him the symbol reserved for the candidates of TelanganaRashtra Samithi of which party the first respondent claimed to be a candidate. Underthose circumstances, the Apex Court was of the clear view that by not allotting asymbol claimed by the first respondent, the Returning Officer had not stalled orstopped the progress of the election and the first respondent was treated as anindependent candidate and permitted to contest with the symbol assigned to him asan independent candidate and consequently there had been no question of stallingof the election. Therefore, his grievance as to such non-allotment of the symbol willhave to be agitated in an election petition. Thus, from the conspectus of thejudgments of the Apex Court referred to supra, it is obvious that if the process ofelection by omissions and commissions of the parties is prevented and not promotedin order to facilitate its flow, Article 226 of the Constitution of India can be invoked,inasmuch as such erroneous actions or omissions or errors should have the effect ofinterference with free flow of the scheduled election, which is the paramount consideration. If by such erroneous orders, the conduct of the election is nothindered, then the Courts under Article 226 of the Constitution of India should notinterfere with the orders of the Returning Officers, remedy for which lies in anelection petition only. Likewise, if it is a clear case of playing fraud on theConstitution the jurisdiction of the High Court can be invoked. Thus, the jurisdictionunder Article 226 of the Constitution of India has been carved out in respect ofspecified areas which cannot be illustrated in exhaustive manner but which have theeffect of interfering with free flow of the scheduled election or hindering the progressof the election.

Turning to the facts in the instant case, by no stretch of the imagination, it canlegitimately be contended before us that by accepting the nomination of the sixthrespondent, albeit erroneously the process of election has not been stopped. Suchan erroneous decision in the view of the petitioners shall have to be questioned onlyby means of a properly constituted election petition. In that view of the matter and forthe reasons hereinabove discussed, the writ petition must fail.

For the foregoing reasons, the Writ Petition fails and is dismissed. However, wedirect both parties to bear their respective costs.

______________________

B.SUDERSHAN REDDY,J

31stDecember, 2004.Chvn/VGSR

__________________T.CH.SURYA RAO,J

ASSISTANT REGISTRAR

// TRUE COPY//

SECTION OFFICER.

To

1 The Secretary, A.P. Legislative Assembly, Hyderabad.

2 The Principal Secretary, Government of Andhra Pradesh, Social Welfare (CU) Department, Secretariat, Hyderabad.

3 The Commissioner Tribal Welfare, State of A.P. Telugu Samskshema , Masab Tank, Hyderabad.

4 The District Collector, East Godavari District, Kakinada.

Conclusion

5 The Mandal Revenue Officer, Maredmilli, Maredmilli Mandal, East Godavari District.6 The Secretary, Election Commission of India, Nirvochan Sadan, Ashok Road, New Delhi-110 001.

7 Two C.Cs. to the G.P. for Law and Legislative Affairs, HighCourt Buildings, Hyderabad (OUT).

8 Two C.D. copies.