KAMBHAMETTU VISHNUVARDHANA RAO Vs. SIRAPU APPA RAO AND OTHERS
LAWS(APH)-1955-8-41
HIGH COURT OF ANDHRA PRADESH
Decided on August 11,1955

Kambhamettu Vishnuvardhana Rao Appellant
VERSUS
Sirapu Appa Rao And Others Respondents


Referred Judgements :-

SETHURAMA MUDALIAR V. MANGALA GOUNDAR [REFERRED TO]
MAHABALESWARAPPA V. RAMA CHANDRA RAO [REFERRED TO]
MALICK CHEMICAL WORKS VS. UNION OF INDIA UOI OWNING THE NORTHERN RLY [REFERRED TO]
GOLA NARASIMHALU VS. KODI NARASIMHAM AND ORS. [REFERRED TO]


JUDGEMENT

UMAMAHESWARAM, J. - (1.)This is an application to issue a writ of certiorari to quash the order passed by the Election Commissioner (Principal Subordinate Judge) Vijayawada in O.P. No. 80 of 1952. The first respondent herein filed an application under rules 1, 2 and 10 framed under section 303 of the District Municipalities Act to declare that he was duly elected in the election to the Vijayawada Municipality for ward No. 26, or in the alternative to order fresh election for the said ward No. 26. Among the several objections raised by him in his petition, the principal objection related to the polling officer putting the serial numbers of the electors on the ballot papers and thereby violating the secrecy of the ballot and contravening rule 27-A of the rules of the conduct of elections of municipal councillors. The petitioner herein who was the successful candidate denied the several allegations contained in the election petition and contended that the election petition was also barred by limitation. The Election Commissioner did not frame any issue on the question of limitation. When the petition was taken upon for enquiry, it was admitted by both the parties that the enquire votes in respect of booth D were declared invalid, as the polling officer had noted the serial numbers of the electors on the ballot papers. The Election Commissioner thought that this admission was sufficient to set aside the election and ordered fresh election for ward No. 26 of Vijayawada Municipality and for that purpose he relied on the decision of the Madras High Court in C.R.P. No. 1072 of 1923 (46 M.L.J. 21 and 22, short notes.) The petitioner who is aggrieved by the order of the Election Commissioner has filed this application for the issue of a writ.
(2.)Two contentions are raised on behalf of the petitioner : (i) that the election Commissioner ought to have decided the question whether the election petition was not barred by law of limitation, and (ii) that he ought to have considered the question whether the result of the election was materially affected by the contravention of rule 27-A of the rules for the conduct of the elections of municipal councillors. I agree with both the contentions of the learned advocate for the petitioner.
(3.)In the election petition, it was stated by the 1st respondent herein that the result of the poll was declared on 9th October, 1952, and that the election petition was in time as it was filed within 7 days from the declaration of the result of the election in 26th ward. The petitioner herein stated in his counter-affidavit that he was declared elected on 8th October, 1952 and that the election petition was therefore barred by time. The judgment of the Election Commissioner does not disclose as to why an issue was not framed on the question of limitation and why it was not considered by him, even assuming he was right in the view that the election was liable to be set aside. The learned Advocate for the 1st respondent contended before me that the plea of the limitation must be deemed to have been given up and for that purpose referred me to paragraph 5 of the affidavit filed in support of the writ application. The relevant portion runs as follows :
"My advocate brought to the notice of the learned Subordinate Judge that the petition was filed beyond time. The learned Subordinate Judge after hearing arguments as to the effect of marking the ballot papers on election did ask my counsel to state his contention on the question of limitation. My counsel thought that there would be no need to press it if on the question of law the Judge held in my favour. The learned Subordinate Judge did ask my advocate to make his submissions on the question of limitation. He had no opportunity of showing that on the undisputed facts the petition was out of time. The result of the election was declared on 8th October, 1952 and the petition was filed on 16th October, 1952. Arguments were advanced by both sides on this point alone. But to the surprise of my counsel and myself the learned Judge by his order, dated 5th August, 1953, allowed the petition on this point holding that as a result of marking of the ballot papers the election should be set aside and directed holding of fresh elections."

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