IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No : 3600 of 2008 Between: Korada Murali S/o. Late Kamaiah R/o. 12-4-122, Fish market street, Kasibugga, Srikakulam District. ..... PETITIONER AND 1 Palasa Kasibugga Municipality, rep. by its Commissioner, Srikakulam. 2 The Chair Perso, Palasa-Kasibugga Municipal Council, Srikakulam. 3 Smt. S. Sandhya Rani W/o. Malleswar RAo R/o. H.No.5-93, Palli street, Kasibugga, Palasa Mandalam, Srikakulam District. 4 Paila Chakradhara Rao S/o. Dandasi Kasibugga, Palasa, Kasibugga Municipality, Palasa Mandalam, Srikakulam District. .....RESPONDENT(S) Counsel for the Petitioner: MRS. S.NANDA Counsel for Respondents 1&2: MRS.BEENA for Mr. S. Nageswar Reddy The Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.3600 of 2008 ORDER:- This writ petition is filed for a writ of mandamus to declare the co-option of respondent Nos.3 and 4 under the category of co- option as councillors of Palasa-Kasibugga Municipality, Palasa Mandal, Srikakulam District, as illegal, arbitrary and in violation of the provisions of the A.P. Municipal Councils, Nagar Panchayats (Co-option) of Members belonging to Minorities) Rules, 1995 (for short, ‘the Rules’). At the hearing, Smt. S. Nanda, learned counsel for the petitioner, while admitting that the petitioner has an alternative remedy of raising a dispute under Rule 10 of the Rules, however, relied upon the judgment of this Court in Dr. Ambedkar Seva Samajam, Bapatla, rep., by its General Secretary, M. Jaya Rao and others v. Government of A.P., rep., by its Secretary, Department of Municipal Administration and others[1]. I have carefully considered the said judgment which indeed received affirmation by the Division Bench of this Court of which I am a party in Sri Kurapati Maria Das v. M/s. Dr. Ambedker Seva Samajam, Ambedkar Bhawan, Akberpet, Bapatla, Guntur District and seventeen others[2]. Having carefully considered the said two judgments, I am of the view that the same have no application to the present case because in the earlier case decided by this Court writ petition for quo warranto was filed in public interest. After undertaking elaborate discussion on the issue of maintainability of the writ petition, the Division Bench observed as under: “A writ of quo warranto is a constitutional remedy, which can be availed against a person, who is not qualified to hold a public office or post. By entertaining a petition filed under Article 226 of the Constitution of India, the superior Courts can call upon a person to show as to under what right he holds a public office, franchise or liberty. In The University of Mysore v. C.D. Govinda Rao and another[3] a Constitution Bench of the Supreme Court dealt with the scope of writ of quo warranto and referred to Halsbury’s Law of England, 3rd Edition, Vol.II Page 145 in paragraph 7 of the judgment, which can be usefully extracted hereunder: “As Halsbury has observed: “An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined”.” The Supreme Court then observed: “If the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of qua warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.” The petitioner, who was unsuccessful in seeking co-option, sought for invalidation of the co-option of respondent Nos.3 and 4. Therefore, there is no reason for the petitioner not to avail the ordinary remedy of filing an election petition under the abovementioned rule and the ratio in the above judgment, therefore, has no application to the case on hand. For the abovementioned reasons, the writ petition is dismissed. Liberty is given to the petitioner to avail the remedy of filing election petition. As a sequel to dismissal of the writ petition, WPMP.No.4697 of 2008 filed by the petitioner for interim relief is also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 21.02.2008 ES [1] 2007 (1) ALT 345 [2] 2007 (6) ALD 334 [3] AIR 1965 SC 491