Razia Bee vs District Collector Panchayats

Smt.H.Venkata Lakshmamma filed this revision aggrieved by the order dated 15.11.2019 passed in I.A.No.118 of 2019 in EOP No.4 of 2019 on the file of the learned Election Tribunal-cum-III Additional District Judge, Mahabobnagar District at Gadwal, whereby the application filed by the petitioner seeking interim suspension of the Proceedings No.A1/20/MPP/Election/2019 dated 17.06.2019 is dismissed.

The petitioner herein filed EOP No.4 of 2019 challenging her disqualification. During the pendency of the EOP, she filed an application vide I.A.No.118 of 2019 to suspend the operation of the proceedings dated 17.06.2019.

In a counter filed by the second respondent he submitted that the first respondent authorized him as Convenor and Presiding Officer by endorsement dated 04.06.2019 and also issued Form No.I under Rule 3(1) to conduct election on 07.06.2019 and accordingly, he issued notice in Form No.II. As he received only one nomination of M.D.Ibrahim for the post of co-opted member, he was declared unanimously as co-opted member. Elections for the posts of President and Vice-President were not conducted on 07.06.2019 since there was no sufficient quorum and it was postponed to 08.06.2019. He stated that Smt.Jyothi, MPTC, Linganavai-fourth respondent herein was appointed as party whip and she was authorised to issue whip on behalf of Telangana Rashtra Samithi Party (TRS Party). Accordingly, it was served upon the petitioner and other three (3) MPTCs, but when they failed to comply with the same, they were disqualified.

In the counter filed by Smt.Jyothi-fourth respondent, MPTC Member, Linganavai Village, Alampur Mandal, she would submit that on 06.06.2019 Sri V.M.Abraham, M.L.A., Alampur, appointed her as party whip for the elections of President and Vice President and the same was communicated to the Presiding Officer. B-Forms were also issued nominating K.Rupa Devi for the post of President and herself for the post of Vice President. As per party directions, she issued Annexure-III party whip to all four MPTC members and obtained their signatures and originals were handed over to the second respondent, but the meeting which was scheduled to be held on 07.06.2019 was postponed due to lack of quorum. The petitioner and three (3) MPTC members were not attended the meeting intentionally to avoid elections though they have received party-whip and on 08.06.2019 the meeting was held. As Form-B was issued in favour of K.Rupa Devi and herself, they filed nominations for the posts of President and Vice President, but against the directions of TRS party, even after receiving party whip, Smt.Pinjari Begum and Smt.J.Anuradha filed their nominations for the posts of President and Vice President and they are supported by two other MPTC Members. The Presiding Officer-second respondent also announced in the meeting stating that if the party is disobeyed, such a member is liable for disqualification. In spite of the same, petitioner and three other MPTC members supported K.Rupa Devi and herself. Though TRS Party has not issued any B-Forms in favour of Smt.Pinjari Begum and Smt.J.Anuradha, they contested to the posts. After completion of the elections on 08.06.2019, she gave written complaint to the Presiding Officer regarding disobedience of party whip by the four MPTC Members. She further stated that she served Annexure-III party whip to all the four MPTC members to cast their vote in favour of Smt.K.Rupa Devi and in her favour and all the said copies were handed over to the second respondent before the meeting. The petitioner and three other MPTC members intentionally disobeyed the party-whip. The petitioner gave an explanation on 15.06.2019, in which she stated that service of whip is deceptive service and again they changed their version and stated that they were not served with the copies of party whip and forged their signatures in Annexure-III and also gave complaint against her on 22.06.2019 and she was disqualified on 17.06.2019, and thus, requested the Court to dismiss the petition.

Learned counsel for the petitioner would contend that the Tribunal failed to see that the Telangana Panchayat Raj (Conduct of Election of Member (Co-opted), President and Vice-President of Mandal Praja Parishad and Members (Co-opted), Chairperson and Vice-Chairperson of Zilla Praja Parishad) Rules, 2018 (for short, ‘the Rules of 2018’) are mandatory and the procedure laid down for disqualification of an elected member is required to be strictly adhered to. He would further assert that the Tribunal failed to consider that there was only one validly proposed candidate. Moreover, the whip issued by the fourth respondent is not applicable to the present case as the candidates mentioned in the whip were not duly proposed in accordance with Rule 10 of the Election Rules and as such there was no occasion or possibility for the petitioner to vote for the said candidate. Learned counsel would also assert that elections to be held on 07.06.2019 and the whip issued in respect of the said election cannot be applicable for the election of the President and Vice-President held on 08.06.2019 and that the whip was not duly served upon the petitioner and it was only issued as an afterthought. Moreover, the order of disqualification is cryptic, non-speaking and suffers from non-application of mind, and therefore, requested to set aside the order of the Tribunal.

Heard the learned counsel on either side.

Admittedly, Election O.P. is filed to set aside the disqualification orders passed against Smt.H.Venkata Laksdhmamma and three other MPTC members on 17.06.2019 basing on the complaint given by Smt.B.Jyothi who was appointed as whip of TRS Party for elections to the post of President and Vice President of Alampur Mandal Praja Parishad, Alampur, Jogulamba-Gadwal District, to elect and vote for Smt.K.Rupa Devi for the post of President and Smt.Jyothi as Vice President, Alampur Mandal. The petitioner and three other MPTC members violated the whip and voted in favour of Smt.Pinjari Begum as President and Smt.Anuradha as Vice President. A show cause notice was issued to the petitioner and she gave reply on 15.06.2019 and after verifying the same, it was held that the Presiding Officer did not found any righteousness in her reply and she violated Section 11 of G.O.Ms.No.27 dated 19.5.2018 and hence she was disqualified as MPTC Member of Sultanapur as per Section 147(1) of Telangana Panchayat Raj Act, 2018.

In reply to the show cause notice, the petitioner would state that she was elected as MPTC of Bhimavaram on 04.06.2019 as a candidate of TRS Party. Later, State Election Commission appointed Election Officer to conduct elections for the posts of President and Vice-President of Mandal Praja Parishad on 07.06.2019, but on that day the elections were deferred for want of quorum to 08.06.2019 as she along with three MPTC members did not attend on 07.06.2019. On 08.06.2019, she casted her vote in favour of P.Begum and J.Anuradha for the posts of President and Vice-President respectively and all the six MPTC members attended the election out of which four MPTC members casted their votes in favour of TRS Party. After completion of the elections, signatures of all the four of them were obtained stating that the said signatures are necessary for evidencing their attendance on the day of elections. After obtaining their signatures, they were informed that they were served with whip as if they were served with whip dated 07.06.2019 complying all statutory requirements. Basing on the strength of deceptive service, again notices were issued calling upon them to explain as to why action should not be initiated. She would state that they were not read over the contents of the paper on which their signatures were obtained and that the alleged whip was in English and it was not explained to them. If a whip was issued by the Party President or person authorized by the President, it should reach the Office of Presiding Officer before 11.00 AM on 06.06.2019 as the elections were scheduled to be held on 07.06.2019. Moreover, the whip is valid only for the elections to be held on 07.06.2019. A person appointed as whip should serve the same on all the members, obtain an acknowledgment of it and should handover the same to the Presiding Officer at least one hour before election. It is her case that she along with other MPTC members were not served with any whip either on 06.06.2019 or 07.06.2019 but their signature were obtained fraudulently under the guise of requirement for their attendance subsequent to the election and there is no acknowledgment at all. Apart from the above, she would submit that more than one third of the elected members were unanimously elected and as such the alleged whip loses its sanctity. She also stated that she exercised franchise in favour of their party members only and as such it cannot be considered as violation and requested them to withdraw the notice.

Learned counsel for the petitioner would argue that though she gave a detailed explanation, it was not considered and no speaking order was passed.

For the sake of convenience, I feel it reasonable to extract Section 11 of G.O.Ms.No.27 dated 19.05.2018 and it reads as under:

‘Rule 11: DISQUALIFICATION FOR DISOBEDIENCE FOR DISOBEDIENCE OF PARTY WHIPS (MANDAL PRAJA PARISHAD):

(1) Every recognized political party may appoint on behalf of that political party a whip and intimation of such appointment shall be sent by the State President or a person authorized by his/her signature and seal and such intimation shall be sent to the Presiding Officer so as to reach him on or before 11.00 a.m. on the day of preceding the day of election to the office of the President and Vice-President of the Mandal Praja Parishad.

(2) The person appointed as whip by the recognized political party shall furnish a copy of the contents of the whip issued by him/her to the Presiding Officer at least an hour before the commencement of the meeting.

(3) The person appointed as whip by a recognized political party shall in addition to a copy of the contents of the whip issued by him/her, also furnish a copy of the acknowledgment obtained from the members belonging to the party on the service of the whip to them, to the Presiding Officer before the commencement of the meeting.

If any member elected on behalf of the recognized political party refuses to receive the whip issued by him/her, he/she shall record the same and furnish a copy of it to the presiding Officer.

(4) Any manner of the Mandal Praja Parishad elected, on behalf of a recognized political party shall cease to be a Member of the Mandal Praja Parishad for disobeying the directions of the party whip so issued in the manner hereinafter provided.

(5) The Presiding Officer shall on receipt of a written report from the party whip within three days of the election that a member belonging to his/her party has disobeyed the whip issued in connection with the election, give show-cause notice to the member concerned as to why he/she should not be declared to have been ceased to hold office and that he/she should not be declared to have ceased to hold office and that he/she should make any representation within seven days from the date of the notice. The Presiding Officer shall consider any explanation given within seven days and pass a speaking order in the manner of cessation for disobedience of the whip within two days of receipt of explanation. If no explanation is received, within seven days, the Presiding Officer shall pass an order on the basis of the material available with him within two days after expiry of seven days period.

The Tribunal after considering the argument of the learned counsel for the petitioner held that whip granted for election dated 07.06.2019 is also valid for elections conducted on 08.06.2019 as it was postponed from 07.06.2019 to 08.06.2019 for lack of quorum. The Tribunal further observed that the petitioner at one point of time stated that their signatures were obtained fraudulently on the ground that they are required to show their attendance on 08.06.2019 after completion of the elections and on the other hand she stated that their signatures were forged and also gave a complaint against the fourth respondent, and thus, she made inconsistent statements. The fourth respondent stated that she was appointed as party whip by the authorised person on behalf of TRS Party Sri V.M. Abraham MLA, Alampur, on 06.06.2019 and she served copy under Annexure-III to the petitioner on 07.06.2019 and also to other three MPTC members and obtained their signatures but in her counter she clearly stated that the petitioner along with three other MPTC members did not attend the election meeting conducted on 07.06.2019 and the said fact was also stated by the petitioner and three other MPTC members clearly that they have not attended the election on 07.06.2019. When they were not attended to the election meeting on 07.06.2019, how the copies of the party whip vide Annexure-III was served upon them by the fourth respondent is not explained anywhere. It gives strength to the version of the petitioner and three other MPTC members that she obtained their signatures on 08.06.2019 after completion of the election in a deceptive manner by stating that they are required to prove their attendance and as such they could not go through the contents of the same and they did not know about the party whip before the elections and moreover after serving the same it should be sent to the Presiding Officer at least one hour before the elections. But all these things were not complied by the fourth respondent. In a show-cause notice dated 10.06.2019 when it was served upon the petitioner by the Attender, he specifically stated that it was served in the brother-in-law’s house of MPTC Sultanapur, but in annexure-III it was not stated where it was served upon them. The petitioner herein mainly contended that they voted against their party members and as such they cannot be disqualified. Learned counsel for the petitioner stated that in spite of a detailed explanation given by the petitioner, nothing was considered by the Presiding Officer and he has not passed any speaking order and thus on that ground alone the disqualification order is to be set aside. But the above observations of this Court ought to be considered by the Tribunal while disposing of the main election petition. Admittedly, elections were conducted in the year 2019 and the petitioner and other three MPTC members were disqualified on 17.06.2019 and their tenure is likely to be completed in two years.

Learned counsel for the petitioner would rely upon the case law reported in S.JYOTI V/s. PRESIDING OFFICER/ELECTION OFFICER, THOTTAMBEDU MANDAL, CHITTOOR DISTRICT MANU/AP/0616/2002, in which it was held as follow

“....It is trite, the burden of proof that the Whip was properly served on the petitioners and despite the service of the Whip, the petitioners disobeyed the Whip thereby incurring a liability to be disqualified from the membership under Rule 13(7) of the President/Vice-President Election Rules is on the respondents. The burden of proof placed on the respondents is not discharged merely on preponderance of probabilities; the standard of proof required is akin to that of proving the criminal or quasi-criminal charge. Clear-cut evidence, wholly credible and reliable is needed to prove the disobedience of the Whip despite service of intimation of the Whip. Such a standard of proof should be insisted because it is basic to the law of elections that in a democracy, the mandate of the people as expressed at the hustling must prevail and be respected by the Courts and the elected candidate as a member of Mandal Parishad cannot be disqualified for the alleged disobedience of the Whip lightly and in the absence of clear-cut and satisfactory substantive evidence to show that he has disobeyed the Whip...”

Therefore, considering the fact that the burden of proof rests with the fourth respondent to establish that she served notices of whip under Annexure-III to the petitioner and three other MPTC members on 07.06.2019 and the other relevant factors discussed above, this Court finds it reasonable to set aside the order dated 15.11.2019 passed in I.A.No.118 of 2019 in E.O.P.No.4 of 2019.

In the result, this civil revision petition is allowed.

Miscellaneous Petitions, if any, pending in this revision shall stand closed in the light of this final order.