Smt. Gutta Rajyalakshmi vs The Presiding Officer and Election Officer, Rajupalem Mandal Parishad and Others

M.N. Rao, J.—Seeking a writ of Certiorari for quashing of Section 153(1) 2nd proviso of Andhra Pradesh Panchayat Raj Act, 1994 and Rule 13(7)(i) and (ii) of the Rules issued in G.O.Ms. No. 756, dated 30-11-1994 and for a consequential direction declaring the proceedings issued by the Presiding Officer and Election Officer, Rajupalem Mandal Parishad, Guntur, the first respondent herein on 17-1-1996 in reference No. 144/95 as mala fide, illegal and unconstitutional this writ petition was filed by Smt. G. Rajya Lakshmi who by the aforesaid order of the first respondent - ceased to be a member of the Nemalipuri Territorial Constituency of Rajupalem Mandal.

On 12-3-1995 the petitioner herein was elected as member of the Mandal Praja Parishad, Rajupalem Mandal of Nemalipuri Territorial Constituency. The election of President and Vice President of the Mandal Parishad was fixed for 18-3-1995. As there was no quorum on that day, the meeting was adjourned to the next date i.e., 19-3-1995. Two persons filed nominations for the post of President-the petitioner herein and one Smt. Chandrakala-both on behalf of the Congress Party. The election was held at 3 p.m. on 19-3-1995 by show of hands. As both the candidates got equal number of votes, the petitioner was declared elected by drawing of lots. On 19-3-1995 a representation was given by one Shaik Badruddin, the third respondent herein, member elected from Reddygudem, to the Election Officer, claiming himself to be a Whip of the Congress Party, stating that the petitioner has disobeyed the Whip given earlier by the Congress Party which had nominated Smt. Chandrakala but not the petitioner, the latter incurred disqualification. Next day i.e., on 20th March 1995, the Election Officer passed an order declaring that the petitioner herein ceased to be a member of the Mandal Parishad. Challenging the same W.P. No. 5660/95 was filed on 24-3-1995 and the same was allowed by a Division Bench of this Court of which one of us (M.N. Rao, J.) was a member, on 27-9-1995 directing the first respondent, the Election Officer:

"to issue a notice to the petitioner calling upon her to show-cause why a declaration in Form-V-C (cessation of office) should not be issued and the petitioner within two weeks of receipt of the notice, shall submit her explanation and the decision thereon shall be taken by the 1st respondent within three weeks thereafter in accordance with law. We make it explicit that the petitioner is not entitled to personal hearing. Until orders are passed in this behalf by the 1st respondent status quo as on today shall continue."

Thereafter a show-cause notice was issued on 21-12-1995 by the first respondent to the petitioner calling upon her to show-cause why a declaration in Form-V should not be issued and she was called upon to submit her explanation within two weeks from the date of receipt of the notice.

In her explanation to the show-cause notice the petitioner stated that the third respondent Badruddin was not appointed as the Whip, the same was not served upon her and that the record disclosed (presumably at the time of hearing of the writ petition) that prior to the meeting held on 19-3-1995 no whip was at all issued. A false endorsement was made to the effect that she refused to receive the whip at 11 p.m. on 19-3-1995. On 18-3-1995 she was bed-ridden taking treatment in the hospital which fact she informed the Election Officer as well as the Collector. She denied that she had disobeyed the Whip issued by Badruddin and asserted that the representation made by Badruddin to the Election Officer that Smt. Chandrakala was chosen as party candidate and that she (petitioner) refused the whip are untrue and fabricated false allegations.

Rejecting the explanation of the petitioner the impugned order was passed on 17-1-1996 by the first respondent stating that on 17-3-1995 at 10-50 a.m. he received from Indian National Congress Party information that Badruddin was appointed as Party Whip and on 18-3-1995 at 10 a.m. he received information from Badruddin that Smt. Chandrakala was nominated as candidate for the Presidentship of Mandala Praja Parishad on behalf of the Indian National Congress and that the six candidates elected on behalf of the congress party should vote in favour of the party candidate. The impugned order also says that on 19-3-1995 at 11 p.m., Badruddin complained to him in writing that the petitioner herein filed nomination for the President ship in violation of the Whip and that she should vote for the Congress candidate Smt. Chandrakala. The said Badruddin also handed over a letter dated 19-3-1995 addressed to the petitioner regarding nomination of Smt. Chandrakala for the post of President and directing the petitioner to vote in favour of the party nominee. This letter also, the impugned order says was handed over to the first respondent on 19-3-1995 on which he made an endorsement. In the election held on 19-3-1995 at 3 p.m., the petitioner filed nomination for the post of President in violation of the Whip issued by Badruddin and therefore the said violation attracts the provisions of Section 153 of the Act and the rules issued in G.O.Ms. No. 756 dated 30th November, 1994 as amended in G.O.Ms. No. 130, dated 15-3-1995. The petitioner was therefore, declared to have ceased to be a member of Nemalipuri Territorial Constituency, Rajupalem Mandal with effect from the date of receipt of the order. Challenging the same the present writ petition was filed.

Section 153(1) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short "the Act") lays down that the President and Vice-President of every Mandal Parishad shall be elected from among the elected members "by show of hands duly obeying the party whip given by such functionary of the recongised political party as maybe prescribed". The second proviso to Sub-section (1) says "that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy". Sub-rule (1) of Rule 13 of the Rules relating to the conduct of elections issued in G.O.Ms.No. 756PanchayatRaj Department dated 30th November, 1994 lays down that "a candidate for the office of the President/Vice-President of a Mandal Parishad shall be proposed by one member and seconded by another" and that "the names of all candidates validly proposed and seconded shall be read out by the Presiding Officer at such meeting". It also lays down that "if any candidate claims to be contesting on behalf of a political party, he shall produce an authorisation from the President of the recognised political party of the State or a person duly authorised by the State President under his office seal and such authorisation shall be produced before the Presiding Officer on or before 11.00 a.m., on the day preceding the day of the election for the office of President/Vice-President of Mandal Parishad. The names of all candidates validly proposed and seconded shall be read out along with the name of the political party which has set him up by the Presiding Officer in such a meeting". Sub-rule (6) is in the following terms:

"(6) Every recognised political party may appoint on behalf of that political party a whip and intimation of such appointment shall be issued by the State President or a person authorised by him under his seal and such intimation shall be sent to the Presiding Officer to reach him on or before 11.00 a.m. on the day preceding the day of election to the office of the President/ Vice-President of the Mandal Parishad."

The consequences of disobedience of the whip are incorporated in Sub-rule (7), which is in the following terms:

"7(i) Any member of the Mandal Parishad elected on behalf of a recognised political party shall cease to be a Member of the Mandal Parishad for disobeying the directions of the Party Whip so issued, (ii) 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 party has disobeyed the Whip issued in connection with the election, forthwith declare in Form V-C mat the Member has ceased to hold office and the decision of the Presiding Officer shall be final."

Although the disobedience in question pertains to the election to the Office of the President of the Mandal Parishad, by operation of Sub-rule (7) of Rule 13, the petitioner has lost the membership of the Mandal Parishad also.

The case of the petitioner, as already stated supra while adverting to the explanation submitted by her to the show-cause notice issued by the first respondent-Election Officer, is mat no whip was appointed and neither the Election Officer nor the members of the Mandal Parishad belonging to the Congress Party were apprised of the factum of issuance of the whip.

In opposition to this, the stand of the third respondent-Badruddin, the whip of the Congress Party, and the Election Officer-the first respondent, is that Shri K. Lakshminarayana M.L.A., the authorised person on behalf of the Congress Party, on 17-3-1995 itself informed the Election Officer in writing that Smt. Chandrakala was set up as the Congress candidate for the post of the President of the Mandal Parishad and when the third respondent issued the whip to the petitioner, she declined to acknowledge its receipt and she was fully aware at the time of the election held on 19-3-1995 that her seeking election to the office of President amounted to clear disobedience of the whip issued by the Congress Party, on whose ticket she was elected as member of the Mandal Parishad.

The question for consideration is: whether mere was a valid whip in existence at the time of me election on 19-3-1995?

The language of Section 153(1) of the Act is very clear and unambiguous. As already noticed, it lays down mat the election of the President and Vice-President of the Mandal Parishad shall be by show of hands duly obeying the whip given by such, functionary of the "recognised political party as may be prescribed." The words "whip given by such functionary....." unmistakably imply mat the members of the concerned political party in respect of whom the whip was issued should be apprised of it and as disobedience in this behalf entails serious consequences, it is reasonable to infer that the appraisal should be in writing. Sub-rule (1) of Rule 13, as already adverted supra, lays down that if any candidate claims to be contesting on behalf of a political party, the authorisation issued by the President of the State unit of the Party shall be produced before the Presiding Officer on or before 11.00 a.m., on the day preceding the day of the election. It also lays down that in the meeting convened for the election, the names of all candidates validly proposed and seconded shall be read out by the Presiding Officer along with the name of the Political Party which has set him up.

The meeting for the purpose of election of the President and Vice-President in question was initially convened for 18-3-1995. The authorisation issued by the Political Party in respect of a candidate seeking election to the post of President should have reached the Presiding Officer before 11.00 a.m., on 17-3-1995. The appointment of the whip by a political party also, by Sub-rule (6) of Rule 13, should have been intimated to the Presiding Officer on or before 11.00 a.m., on 17-3-1995. The record produced before us does not show that on 17-3-1995, the Presiding Officer was informed of the appointment of the whip nor does it show that Smt. Chandrakala, the candidate allegedly set up by the Congress Party, has "produced the authorisation" from either the President of the State unit of the Congress Party or the person authorised by the President of the Congress Party before the Presiding Officer before 11.00 a.m., on 17-3-1995 or even at the time of the election on 19-3-1995, The authorisation in this case on behalf of the Congress Party was given by one Sri Kanna Lakshminarayana, M.L.A., to the Election Officer and it does not bear any date. On the left hand side top of it, there is an endorsement of the Election Officer with his signature "dated 17-3-1995,10.50 a.m." There is over-writing on the numerical ''7''. It looks as though the numerical ''9'' was altered as T. Had this authorisation been issued on 17-3-1995 as sought to be contended by Sri S. Venkat Reddy, learned senior Counsel for the third respondent, the third respondent would have contemporaneously issued the whip on 17-3-1995 itself or atleast on 18-3-1995 before the election to all the members belonging to the Congress Party asking them to exercise their vote in favour of Smt. Chandrakala. But the record placed before us shows that in the complaint dated 19-3-1995 lodged by the third respondent to the Election Officer, it is clearly mentioned that the whip was issued in the afternoon of 19-3-1995 and that at 3.00 p.m., at the time of the election, the petitioner had defied the whip and participated in the election. This complaint was received by the Election Officer at 11.00 p.m., on 19-3-1995. It is true that as per clause (ii) of Sub-rule (7) of Rule 13, within three days of the election, the party whip can complain to the Presiding Officer that a member of his party has disobeyed the whip in the election. It is not a mere complaint about the disobedience of the whip by the petitioner but it also incorporates the fact that the whip was issued on 19-3-1995 in the afternoon to the Congress Party members. This itself is strongly suggestive of the inference that either on 17-3-1995 or 18-3-1995, issuance of a whip to the Congress Party members would not have been in contemplation. This is further confirmed by another document in the hand-writing of the third respondent issued to the petitioner calling upon her to vote in favour of the Congress Party candidate -Smt. Chandrakala. This does not bear any date but the endorsement of the Election Officer is to the effect mat it was received by him at 11.000 p.m., on 19-3-1995. It also contains an endorsement on the reverse in the hand-writing of the third respondent-Sri Badruddin under date 19-3-1995 "rejected" implying that the petitioner had refused to receive the same.

In the earlier writ petition - W.P. No. 5660 of 1995 - which was allowed by a division Bench of this Court on 27-7-1995 setting aside the order of disqualification of the petitioner with a direction mat the petitioner should be heard before any action detrimental to her interest was taken, it was categorically stated by the Election Officer in his counter-affidavit that "the whip of the Congress Party has handed over a letter on 18-3-1995 giving details of the whip issued". The third respondent, in his counter-affidavit in the said writ petition, also has stated:

"On 18-3-1995 itself, I issued proceedings directing all the Congress members that Smt. Marri Chandrakala is set up as a party candidate to contest the elections for tire office of Rajupalem Mandal Praja Parishad. Though all the members had acknowledged receipt of the proceedings, the 1st respondent refused to do so. The same was recorded by me as against the name of the first respondent (petitioner herein) in the said proceedings and the proceedings was submitted by me to the second respondent on the same day".

The so-called endorsement that the petitioner declined to receive the whip bears the date 19-3-1995 but not 18-3-1995 as asserted in the counter-affidavit filed in the earlier writ petition. In this writ petition, Sri Badruddin, the third respondent, has made an attempt to wriggle out of the situation by saying:

"In the counter-affidavit filed by me in W.P. No. 5660/95, due to oversight, it is mentioned that the proceedings evidencing refusal by the petitioner to receive the said proceedings was submitted on 18-3-1995 itself."

Another significant aspect that emerged from the record is that with regard to the whip issued for the election to the Office of the Vice-President nominating one Y. Venkateswarlu as the candidate of the Congress Party, Sri Badruddin, the third respondent, has issued a whip under date 18-3-1995, which was received by the Election Officer on 18-3-1995 at 10.00 a.m. But in respect of the election to the office of the President, there is no such document The only document placed before us relates to the undated letter written by the whip to the petitioner asking her to vote for Smt. Chandrakala, chosen as the Congress party candidate. On this document, there is an endorsement of the Election Officer on the left side top "19-3-1995 11.00 p.m." On the reverse of it, the endorsement of the third respondent is to the effect "rejected". When were the other members of the Congress Party informed about the issue of the whip, there is no documentary evidence. Page 65 of the file placed before us, contains the signatures of four persons without dates and against them, it is written that they are the signatures of the persons who received notices from the whip. Below that is an endorsement that the petitioner refused to receive the notice and the signatures of the witnesses bear the date 19-3-1995. On this there is ah endorsement of the Election Officer to the effect that it was received by him at 11.00 p.m., on 19-3-1995.

From the original record placed before us, the inference is inescapable that till the election was over on 19-3-1995, there was no nomination of any candidate on behalf of the Congress Party to contest the election; it was only after the election was over, attempts appeared to have been made to project the picture that a whip was already issued in favour of Smt Chandrakala and that the petitioner herein acted in disobedience of that whip by seeking election to the office of the President of the Mandal Parishad. The impugned order issued by the first respondent is, therefore, without factual foundation.

We would, therefore, allow the writ petition and quash the impugned proceedings. The petitioner shall forthwith be restored to the office of the President of Rajupalem Mandal Parishad. No costs.