*HON'BLE SRI JUSTICE P.S. NARAYANA +W.P.Nos.15399, 16824, 17533, 17778, 18346, 18671 & 21931 of 2006 % 24-1-2007 # Yarlagadda Venkateswara Rao .. Petitioner Vs. $ Government of Andhra Pradesh Represented by its Principal Secretary, Panchayat Raj Department, Secretariat Buildings, Hyderabad and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner in W.P.No.15399/06 : Sri R.V. Chalapathi Counsel for petitioner in W.P.No.17533/06 : Sri V.Tulasi Reddy Counsel for petitioner in W.P.No.18346/06 : Sri Venkata Rangadas Kanuri Counsel for petitioners in W.P.No.18671/06 : Sri K.R. Prabhakar Counsel for petitioner in W.P.No.21931/06 : Sri V.Brahmaiah Chowdary Counsel for petitioners in W.P.No.16824/06 : Sri V.R. Avula Counsel for petitioner in W.P.No.17778/06 : Sri V.R. Avula ^ Counsel for respondents : Sri V.V. Prabhakar Rao Counsel for 5th respondent in W.P.No.15399/06 : Sri Y.S. Sai Prasad Counsel for 7th respondent in W.P.No.18671/06:Sri V.Ravinder Rao Counsel for 6th respondent in W.P.No.18671/06 : Sri Kowturi Vinay Kumar Counsel for contesting respondents : Sri Jagan Mohan Reddy G.P. for Panchayat Raj ?CASES REFERRED : [1] 1998 AIR SCW 3345 2 2005(8) S.C.C. 264 3 AIR 1985 S.C. 1147 4 2005 AIR SCW 3727=(2005) 142 STC 1 = (2005) 6 SCC 499 5 AIR 1953 S.C. 357 6 2006(9) SCALE 390 7 AIR 1977 S.C. 898 8 AIR 1989 S.C. 2113 9 1985(4) SCC 337 10 2002(4) ALT 661 (DB) 11 2004(5) ALT 563 12 2005(2) ALT 274 13 AIR 1994 S.C. 1558 14 (2000) 10 SCC 482 15 2005(1) ALT 552 (DB) = 2005(1) ALD 657 16 AIR 1950 S.C. 163 17 AIR 1954 S.C. 207 18 AIR 1958 S.C. 86 19 AIR 1961 S.C. 1506 20 AIR 1961 S.C. 372 21 2002(4) ALD 660 (DB) = 2002(6) ALD 18 22 2006(2) ALT 76 23 2006(8) SCJ 907 24 1995(1) ALT 853 HON'BLE SRI JUSTICE P.S. NARAYANA W.P.Nos.15399, 16824, 17533, 17778, 18346, 18671 & 21931 of 2006 Date : 24-1-2007 Between: Yarlagadda Venkateswara Rao S/o.Y.Venkata Krishnaiah .. Petitioner And Government of Andhra Pradesh, Represented by its Principal Secretary, Panchayat Raj Department, Secretariat Buildings, Hyderabad and others .. Respondents HON'BLE SRI JUSTICE P.S. NARAYANA W.P.Nos.15399, 16824, 17533, 17778, 18346, 18671 & 21931 of 2006 COMMON ORDER: Introduction : 1. Manipulative politics can be said to be one of the serious ills with which Indian Democracy suffers. Ours is a multi-party Democracy. Political parties play a vital role in the elections. Party Whips, violation thereof and consequential disqualification resulting therefrom, these questions do arise before the Courts quite often. It is true that when the people had given mandate in favour of a particular political party, be that in local body elections or even otherwise and when the elections are conducted on Party basis, except Independent candidates, elected representatives are bound to obey the Party Whip. There cannot be any doubt or controversy or two opinions over the same. Democratic spirit in the working of these Democratic Institutions also to be kept in mind while deciding such matters. The opinion is almost uniform that such manipulative politics would be of serious blow to the healthy Democracy and may have to be deprecated. Equally the procedural safeguards given to such elected candidates in relation to disqualifications or otherwise by the relevant statutory provisions or the rules also may have to be observed in proper perspective to be in consonance with the spirit of the Democracy. A careful balance may have to be maintained in between these two. 2. These batch of Writ Petitions are filed by the candidates who are disqualified for the alleged violation of the Party Whip. Several procedural infirmities, violations and contraventions had been pointed out in the respective pleadings of the parties. The consequential order, G.O.Ms.No.321, dated 14-8-2006, was challenged in W.P.No.17778/2006. Inasmuch as substantially though the facts are slightly dissimilar, the questions involved being the same in all these Writ Petitions, these Writ Petitions are being disposed of by this Common Order. 3. Reliefs prayed for in the Writ Petitions: W.P.No.15399/2006 is filed for a writ of mandamus, declaring the order of 4th respondent in Rc.No.171/A/06 dated 21-7-2006 as illegal, null, void, arbitrary and opposed to principles of natural justice and to pass such other suitable orders. W.P.No.17533/2006 is filed for a writ of certiorari calling for the records of the 1st respondent in Order No.A1/165/06 dated 9-8-2006 and to quash the same as arbitrary, illegal, without jurisdiction and violative of principles of natural justice in the interest of justice and equity and to pass such other suitable orders. W.P.No.18346/2006 is filed for a writ of mandamus setting aside the impugned order R.C.No.1/2006 dated 14-8-2006 of the 1st respondent as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India apart from being violative of principles of natural justice and to pass such other suitable orders. W.P.No.18671/2006 is filed for a writ of mandamus declaring the action of the respondents in not allowing the 1st petitioner to function as Mandal Parishad President (MPP) of Tirumalayapalem Mandal, Khammam District and cancelling the other petitioners as M.P.T.Cs. vide order No.120/Elections/06 dated 7-8-2006 as illegal, unjust, arbitrary, discriminatory, violative of the fundamental rights guaranteed under Article 14 of the Constitution of India and also contrary to the provisions of A.P. Panchayat Raj Act and the Rules made thereunder, particularly with reference to Section 153 and the Rules issued in G.O.Ms.No.173 dated 10-5-2006 and consequently direct the respondents to declare the 1st petitioner as the elected President, Mandal President, Tirumalayapalem Mandal, Khammam District by setting aside the order of the 5th respondent dated 7-8-2006 without reference to the pendency of I.A.No.1544/2006 in E.P.No.971/2006 on the file of Election Tribunal-cum- Principal District Judge, Khammam District and to pass such other suitable orders. W.P.No.21931/2006 is filed for a writ of mandamus declaring the action of the respondents in cancelling the election of petitioner as Member, M.P.T.C. through the impugned order dated 7-8-2006 in proceedings No.120/Elections/06, as illegal, arbitrary, discriminatory, violative of fundamental rights guaranteed under Article 14 of the Constitution of India and also contrary to the provisions of A.P. Panchayat Raj Act and the Rules made thereunder, particularly with reference to Section 153 and the Rules issued in G.O.Ms.No.173, dated 10-5-2006 and consequently to set aside the same and to pass such other suitable orders. W.P.No.16824/2006 is filed for a writ of mandamus or any other appropriate writ declaring the proceedings in Rc.No.42/2006-B dated 3-8-2006 on the file of 4th respondent in which the petitioners are disqualified from holding the posts of Members of M.P.T.Cs. of Phirangipuram-IV Mandal Parishad, Guntur District as illegal, void, arbitrary and in violation of principles of natural justice and consequently to set aside the same and to pass such other suitable orders. W.P.No.17778/2006 is filed by K.Vijayarani who is the 1st petitioner in W.P.No.16824/2006, praying for a writ of mandamus declaring G.O.Ms.No.321 dated 14-8-2006, Panchayat Raj & Rural Development issued by the 1st respondent as illegal, void and arbitrary and consequently to set aside the same and to pass such other suitable orders. It is needless to say that the said G.O. is consequential to the orders which had been impugned in W.P.No.16824/2006. 4. Interim reliefs granted by this Court : W.P.M.P.No.19179/2006 in W.P.No.15399/2006 : “Heard the Counsel. On 30-8-2006 while issuing Rule Nisi, after hearing both sides and in view of the fact that several questions may have to be heard at length, status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the order of the 4th respondent bearing No.171/A/06, dated 21-7-2006 is suspended until further orders.” W.P.M.P.No.21970/2006 in W.P.No.17533/2006 : “Heard the Counsel. On 30-8-2006 while issuing Rule Nisi, after hearing both sides and in view of the fact that several questions may have to be heard at length, status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the order of the 4th respondent bearing No.A1/165/06, dated 9-8-2006 is suspended until further orders.” W.P.M.P.No.21082/2006 in W.P.No.16824/2006 : “Heard the Counsel. On 30-8-2006 this Court issued Rule Nisi. After hearing both sides and in view of the fact that several questions may have to be heard at length, on 11-9-2006 status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. It is stated that in W.P.M.P.No.23138 of 2006, suspension of operation of G.O.Ms.No.321, dated 14-8-2006 was prayed for. It is also stated that Writ Petition No.17778 of 2006 is pending, wherein G.O.Ms.No.321, dated 14-8-2006 was challenged. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the proceedings of the 4th respondent in RC.No.42/2006-B, dated 3-8-2006 is suspended until further orders.” W.P.M.P.No.23056/2006 in W.P.No.18346/2006 : “Heard the Counsel. On 7-9-2006 while issuing Rule Nisi, after hearing both sides and in view of the fact that several questions may have to be heard at length, status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the order of the 1st respondent bearing RC.No.1/2006, dated 14-8-2006 is suspended until further orders.” W.P.M.P.No.23481/2006 in W.P.No.18671/2006 : “Heard the Counsel. On 11-9-2006 while issuing Rule Nisi, after hearing both sides and in view of the fact that several questions may have to be heard at length, status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the order of the 5th respondent bearing No.120/Elections/06, dated 7-8-2006 is suspended until further orders.” W.P.No.17778/2006 : “Heard the Counsel. On 30-8-2006 while issuing Rule Nisi, after hearing both sides and in view of the fact that several questions may have to be heard at length, status quo obtaining as on today to be maintained for a period of two weeks had been granted and subsequent thereto, the same is being extended. In the light of the facts and circumstances explained in detail and also in the light of the stand taken by the respondents, this Court is of the considered opinion that the order of status quo already granted to be modified, and accordingly the operation of the order of the 1st respondent in G.O.Ms.No.321, Panchayat Raj and Rural Development (MDL.II.4) Department, dated 14-8- 2006 is suspended until further orders.” W.P.M.P.No.27812 /2006 in W.P.No.21931/2006 : In view of the facts and circumstances well explained and also in the light of the orders already made by this Court in similar matters, interim suspension until further orders. List the matter along with W.P.No.18671 of 2006.” 5. In the light of the interim orders made by this Court, it is stated that the writ petitioners are continuing in office by virtue of the aforesaid interim orders. 6. Vacate applications are moved in the Writ Petitions to vacate the interim orders. At the stage of hearing of the vacate applications all the Counsel on record made a request to dispose of the Writ Petitions finally and hence the Writ Petitions are being disposed of finally. 7. Contentions of the Counsel on record: Submissions of Sri R.V. Chalapathi : Sri R.V. Chalapathi, the learned Counsel representing the writ petitioner in W.P.No.15399/2006 had taken this Court through the impugned order and the contents thereof and had pointed out that even on a prima facie reading of the impugned order the same is not a speaking order and the explanations submitted had not been considered in proper perspective and there was no offer of notice and there was never rejection of the offer and inasmuch as there was no refusal of any Party Whip whatsoever, the impugned order cannot be sustained. The learned Counsel also had taken this Court through the respective pleadings of the parties in elaboration and had explained the scope and ambit of Section 153-A of A.P. Panchayat Raj Act, 1994 (hereinafter in short referred to as “Act” for the purpose of convenience) and would maintain that in the light of language of the said provision, the same cannot be said to be an effective alternative remedy. The learned Counsel also would point out that even otherwise the impugned order was not made under the relevant provision so as to attract Section 153-A of the Act. The Counsel while making further elaborate submissions had pointed out that this being a question of disqualification, the procedural requirements are to be strictly followed and there was no actual service of notice and the statement made relating to refusal is a false statement and even if the time noted in the impugned order to be taken as true, the same is in contravention of the Rules governing the field. The learned Counsel also in elaboration had pointed out to the different Rules in A.P. Conduct of Election of Member (co-opted), President, and vice- President of Mandal Parishad and Member (co-opted), Chairperson and Vice-Chairperson of Zilla Parishad Rules, 2006, (G.O.Ms.No.173, Panchayat Raj and Rural Development (Election and Rules), dated 10-5-2006), hereinafter in short referred to as “Rules” for the purpose of convenience, and would maintain that in the light of these serious legal infirmities, the preliminary objection relating to the maintainability of the Writ Petition needs no serious consideration and inasmuch as this Court being a Constitutional Court, if this Court is satisfied about the procedural infirmities, the impugned order may have to be set aside. The learned Counsel also placed strong reliance on certain decisions. Submissions of Sri V.Tulasi Reddy: Sri V.Tulasi Reddy, the learned Counsel representing the writ petitioner in W.P.No.17533/2006 would submit that the show cause notice itself is defective inasmuch as the same had been given under wrong provision of law and when the show cause notice itself is defective there is no question of sustaining the impugned order and the impugned order to be quashed and if need be opportunity to be given to the competent authority to make an order in accordance with law after issuing proper show cause notice. The learned Counsel also had further explained the scope and ambit of the Rules and the contravention thereof. The Counsel also placed reliance on certain decisions. Submissions of Sri Venkata Rangadas Kanuri : Sri Venkata Rangadas Kanuri representing the petitioner in W.P.No.18346/2006 had taken this Court through the respective pleadings of the parties and would submit that the impugned order is in violation of the Rules and there are several procedural infirmities or irregularities. Submissions of Sri K.R. Prabhakar : Sri K.R. Prabhakar, the learned Counsel representing the writ petitioners in W.P.No.18671/2006 would maintain that no doubt the Constitutional validity of Section 153-A of the Act had not been questioned and the provision though prima facie appears to be more or less an alternative remedy the same is not an effective remedy and even otherwise alternative remedy is not a bar to entertain the Writ Petition. The learned Counsel also would contend that the District Court is not conferred with the power to grant interim orders since the provision is silent. The Counsel also had explained the show cause notice, explanation and the impugned order and had pointed out to the absence of particulars in the minutes of the meeting and would submit that it is a non-speaking order and further pointed out certain other legal infirmities. Submissions of Sri V.Brahmaiah Chowdary : Sri V.Brahmaiah Chowdary, the learned Counsel representing the writ petitioner in W.P.No.21931/2006 had substantially adopted the submissions made by the other learned Counsel and would comment that the preliminary objection raised relating to the maintainability of the Writ Petition on the ground of alternative remedy cannot be sustained in the light of several decisions of the Apex Court. Submissions of Sri V.R. Avula : Sri V.R. Avula, the learned Counsel representing the writ petitioners in W.P.No.16824/2006 and the writ petitioner in W.P.No.17778/2006 who is the 1st writ petitioner in W.P.No.16824/2006, while making elaborate submissions would submit that both these Writ Petitions are connected and though a remedy is made available under Section 153-A of the Act, it is not an alternative or effective remedy and the circumstances are very peculiar and there is legal malice or personal malice and the Counsel also explained the present Rules and the prior Rules and would submit that the very decision making process is defective and suffers from legal infirmity since the making of a speaking order is mandatory and by virtue of these procedural infirmities or deviations, the writ petitioners need not be driven to the alternative remedy. The learned Counsel pointed out to several factual infirmities and contradictory and conflicting versions of the Chief Whip and the Presiding Officer and would maintain that the G.O. which had been questioned before this Court in the subsequent Writ Petition i.e., W.P.No.17778/2006, cannot be questioned by invoking the remedy under Section 153-A of the Act and hence in the light of the same the Writ Petitions are to be allowed. The Counsel placed strong reliance on several decisions to substantiate his submissions. Submissions of Sri V.V. Prabhakar Rao : Sri V.V. Prabhakar Rao raised preliminary objection relating to the maintainability of these Writ Petitions on the ground that there is an effective alternative remedy in such matters by virtue of the introduction of Section 153-A and Section 181-A by Act No.22 of 2006 and inasmuch as there is an effective alternative remedy by invoking the jurisdiction of the concerned District Court over the area in question, these Writ Petitions are not maintainable. The learned Counsel while elaborating his submissions had explained the object with which these provisions were introduced in pursuance of certain observations made by the Division Bench of this Court and would submit that in the light of the Constitutional scheme under Article 243-F of the Constitution and also in the light of the statutory scheme as specified by different provisions under the Act and the Rules framed thereunder, inasmuch as the concerned District Court is competent to adjudicate the disputes arising out of such disqualifications, the Writ Petitions may have to be thrown out on the preliminary ground. The learned Counsel also had pointed out to the old Rules and the present Rules and the difference in the language and also would maintain that several of the Judgments cited are in the context of old Rules and not the present Rules and at any rate inasmuch as several factual controversies are involved in these matters, it would not be just and proper for the Writ Court to go into these factual controversies which had been elaborated in the respective pleadings of the parties since the adduction of some evidence may be necessary and in view of the same it would be just and proper to drive the writ petitioners to the appropriate forum. The learned Counsel in all fairness would submit that the procedure to be followed by the District Court even if a proceeding to be decided under Section 153-A may be the same procedure which may have to be followed by the District Court in general and the power to grant interim orders though not specifically specified in the said provision Section 153-A or Section 181-A as the case may be, such powers are implied powers and when there is a right there must be a remedy and when the remedy is provided the remedy to be an effective remedy and inasmuch as the District Court concerned is conferred with jurisdiction to entertain such proceeding, it is to be taken that the concerned District Court also is having jurisdiction to pass appropriate interim orders depending upon the facts and circumstances of a particular given case. Submissions of Sri Y.S. Sai Prasad : Sri Y.S. Sai Prasad, the learned Counsel representing the vacate petitioner/5th respondent in W.P.No.15399/2006 had taken this Court through the specific stand taken in the counter affidavit and would submit that in the light of the same it is clear that the writ petitioner had violated the Party Whip and hence the disqualification is in accordance with law. The learned Counsel pointed out certain factual aspects and would submit that the mere fact that some person had attested the alleged refusal by itself may not be a suspicious ground in the facts and circumstances of the case. Submissions of Sri V.Ravinder Rao : Sri V.Ravinder Rao, the learned Counsel representing the contesting respondent No.7 in W.P.No.18671/2006 would submit that in the light of the clear law laid down by the Apex Court, inasmuch as ordinary procedure to be followed even be forum created under Section 153-A of the Act, it would be just and proper for the writ petitioners to approach the said proper forum. The Counsel made elaborate submissions on the aspect of alternative remedy and also on the aspect of effective remedy available having been conferred with specific jurisdiction to entertain the disputes of this nature by the District Court under Section 153-A of the Act. Submissions of Sri Kowturi Vinay Kumar : Sri Kowturi Vinay Kumar, the learned Counsel representing the contesting respondent No.6 in W.P.No.18671/2006 had explained the contents of the implead applications and under what ground and under what circumstances the disqualification had been incurred and would submit that the alleged violations of the Whip and the Presiding Officer, as the case may be, being factual controversies, the concerned District Court alone would be the proper forum. Submissions of Sri Jagan Mohan Reddy : Sri Jagan Mohan Reddy, the learned Counsel representing the contesting respondents while making elaborate submissions virtually adopted the stand taken by Sri V.V. Prabhakar Rao on the maintainability of the Writ Petitions and also had explained the factual controversies between the parties and would maintain that in the peculiar facts and circumstances it would be just and proper to drive these writ petitioners to the respective District Courts giving liberty to raise all these grounds in the appropriate proceedings if they are so advised. Submissions of Government Pleader for Panchayat Raj : The learned Government Pleader for Panchayat Raj virtually adopted the elaborate submissions made by Sri V.V. Prabhakar Rao and would submit that the Writ Petitions are to be dismissed summarily on the ground of effective alternative remedy being available to the respective writ petitioners. 8. Preliminary objection raised relating to the maintainability of the Writ Petitions : In all these Writ Petitions, except in W.P.No.17778/2006, the orders made are disqualification orders on the ground of violation of the Party Whips and G.O.Ms.No.321 which had been impugned in the said Writ Petition, is only a consequential order. The maintainability of these Writ Petitions is being questioned on the principal ground that there