*THE HON'BLE SRI JUSTICE P.S. NARAYANA +W.P.Nos.668 & 672 of 2007 % 7-9-2009 # Kadimi Baby .. Petitioner Vs. $ The Presiding Officer, Mandal Parishad Elections, Mandal Parishad, Palakoderu, West Godavari District and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri P.Nagender Reddy ^ Counsel for respondents : Sri V.V. Prabhakar Rao G.P. for Panchayat Raj ? CASES REFERRED : Nil THE HON'BLE SRI JUSTICE P.S. NARAYANA W.P.Nos.668 & 672 of 2007 Date : 7-9-2009 W.P.No.668/2007 Between : Kadimi Baby .. Petitioner Vs. The Presiding Officer, Mandal Parishad Elections, Mandal Parishad, Palakoderu, West Godavari District and others .. Respondents W.P.No.672/2007 Between : Irrinki Dhanalakshmi .. Petitioner And The Presiding Officer, Mandal Parishad Elections, Mandal Parishad, Palakoderu, West Godavari District and others .. Respondents COMMON ORDER: 1. These Writ Petitions are being disposed of by a Common Order in view of the commonality of the questions of fact and questions of law involved in both these Writ Petitions. 2. Kadimi Baby filed W.P.No.668/2007 praying for issuance of a writ of certiorari to call for records relating to O.P.No.763/2006 on the file of Principal District Judge, Eluru and to quash the order made therein and to pass such other suitable orders. Likewise, W.P.No.672/2007 is filed by Irrinki Dhanalakshmi praying for issuance of a writ of certiorari relating to O.P.No.762/2006 on the file of Principal District Judge, West Godavari, Eluru and to quash the order made therein and for such other suitable orders. 3. In both these matters, counter affidavits had been filed by the 1st respondent. 4. Heard Sri P.Nagender Reddy, the learned Counsel representing the writ petitioner in both these Writ Petitions and Sri V.V. Prabhakar Rao, the learned Counsel representing the 1st respondent and learned Assistant Government Pleader for Panchayat Raj. 5. In the affidavit filed in support of W.P.No.668/2007, it is stated that the petitioner had been elected as M.P.T.C. member from Palakoderu-I Constituency of Palakoderu Mandal by contesting on behalf of Telugu Desam Party. In total 13 M.P.T.C. Members had been elected on behalf of Telugu Desam Party and 6 M.P.T.C. Members had been elected on behalf of Congress Party. The 1st respondent issued election notice on 5-7-2006 and informed that the election for the posts of President and Vice President would be held on 11-7-2006 at 1 P.M. in the Mandal Parishad office. Further it is stated that the petitioner visited the office on 11-7-2006 in the morning and had also participated in the election for co-opted Members. The Mandal President election was held to be at 1 P.M. It is also further stated that suddenly the petitioner suffered severe ill- health and went to Hospital by informing the same to other Members. By that time the decision was already taken to the effect that the Member Nelapati Suseela will be proposed for election as President. Already the Telugu Desam Party is having sufficient majority to elect the President. The petitioner’s presence in the special meeting is not compulsory as the result will not change even if the petitioner’s goes to the Hospital and hence the petitioner went to the Hospital. Later in the meeting the name of Nelapati Suseela alone was proposed for election of the President and there was no contest and therefore she had been elected as the President unanimously under Rule 10(2) of G.O.Ms.No173, dated 10-5-2006. However, surprisingly the petitioner received show cause notice from the 1st respondent to the effect that the District Party President issued whip to the Members with a direction that the elected member shall be present in the special meeting to be held on 11-7-2006 and vote in favour of Smt.Nelapati Suseela. As the petitioner did not attend the special meeting on 11-6-2007 and disobeyed the party whip the petitioner was demanded to submit explanation within a period of 7 days. Immediately the petitioner submitted a detailed explanation and showed the reason for his absence in the special meeting on 11-7-2006. The specific plea that the party whip was not served on the petitioner. However the 1st respondent without considering the explanation of the petitioner even though there was no contest for the election of the President and though the party candidate Nelapati Suseela had been elected unanimously and though the absence of the petitioner did not affect the result of the President, still the 1st respondent passed the impugned proceedings disqualifying the petitioner’s M.P.T.C. membership. Aggrieved by the same, the petitioner filed O.P.No.763/2006 before the Principal District Judge, West Godavari District at Eluru. However, the said O.P. was dismissed by order and decree dated 20-12-2006. Aggrieved by the said the present writ petition had been filed. Several further facts also had been narrated in paras 6, 7, 8 and 9 of the affidavit filed in support of the Writ Petition. 6. The 1st respondent filed counter affidavit. 7. In W.P.No.672/2007, similar averments had been made in the affidavit filed in support of the Writ Petition. It is stated that the petitioner had been elected as M.P.T.C. Member from Palakoderu-II Constituency of Palakoderu Mandal by contesting on behalf of Telugu Desam Party. In total 13 M.P.T.C. Members had been elected on behalf of Telugu Desam Party and 6 M.P.T.C. Members had been elected on behalf of Congress Party. The 1st respondent issued election notice on 5-7-2006 and informed that the election for the posts of President and Vice-President would be held on 11-7-2006 at 1 P.M. in the Mandal Parishad office. Accordingly the petitioner visited the office on 11-7-2006 in the morning and also participated for the election of co-opted members. The Mandal Parishad election was to be held at 1 P.M. Suddenly the petitioner suffered severe ill health and went to Hospital by informing the same to the other members. By that time the decision was already taken to the effect that the member Nelapati Suseela would be proposed for election as President. The Telugu Desam Party is having sufficient majority to elect the President. The presence of the petitioner in the special meeting was not compulsory as the result would not change even if the petitioner goes to the Hospital and hence the petitioner went to the Hospital. Later, in the meeting the name of Nelapati Suseela alone was proposed for election as President and there was no contest and therefore she had been elected as the President unanimously under Rule 10(2) of G.O.Ms.No173, dated 10-5-2006. However, surprisingly the petitioner received show cause notice from the 1st respondent to the effect that the District Party President issued party whip to the members with a direction that the elected member shall be present in the special meeting to be held on 11-7-2006 and vote in favour of Nelapati Suseela. As the petitioner did not attend the special meeting on 11-6-2007 and disobeyed the party whip the petitioner was demanded to submit explanation within a period of 7 days. Immediately the petitioner submitted a detailed explanation and showed the reason for his absence in the special meeting on 11-7-2006. The specific plea that the party whip was not served on the petitioner. However the 1st respondent without considering the explanation of the petitioner even though there was no contest for the election of the President and though the party candidate Nelapati Suseela had been elected unanimously and though the absence of the petitioner did not affect the result of the President, still the 1st respondent passed the impugned proceedings disqualifying the petitioner’s M.P.T.C. membership. Aggrieved by the same, the petitioner filed O.P.No.763/2006 before the Principal District Judge, West Godavari District at Eluru. However, the said O.P. was dismissed by order and decree dated 20-12-2006. Aggrieved by the said the present writ petition had been filed. Several further facts also had been narrated in paras 6, 7, 8 and 9 of the affidavit filed in support of the Writ Petition. No doubt further stand had been taken that there is no rebel candidate in T.D.P. and the petitioner did not oppose the name of Suseela proposed by the Telugu Desam Party. Certain further facts also had been narrated in paras 6, 7, 8, 9 and 10 of the affidavit filed in support of the Writ Petition. 8. Counter affidavits filed by the 1st respondent in both these Writ Petitions being on similar lines, the contents of both the counter affidavits need not be referred to in detail. It is averred in the counter affidavit filed by the 1st respondent that the 1st respondent herein had been appointed as Presiding Officer of Mandal Parishad, Palakoderu in connection with election to the post of Co-option member, President and Vice- President of Mandal Parishad, Palakoderu by the District Election Authority and District Collector, West Godavari, Eluru. The 1st respondent performed his duties as per election Law and also the instructions issued by the Government in G.O.Ms.No.173, PR & RD dated 10-5-2006 and State Election Commission, A.P. Circular No.1241/SEC/B1/2006 dated 27-6- 2006. The respondents 1 and 2 are one and the same. It is also respondent submitted that as Presiding Officer to election to cooption member, President, Vice-President to Mandal Parishad elections, Palakoderu Mandal the 1st respondent convened a special meeting on 11-7-2006 for election of co- option Member, President and Vide-President of Mandal Parishad, Palakoderu. The Telugu Desam Party appointed Sri G.Satyanarayana Raju as party Whip in connection with the elections to President, Vice-President of Mandal Parishad, Palakoderu. The 1st respondent had convened a special meeting on 11-7-2006 for election to co-option Member, President and Vice-President of Mandal Parishad, Palakoderu. The T.D.P. appointed Sri G.Satyanarayana Raju as party whip inconnection with the elections to President, Vice-President of Mandal Parishad, Palakoderu. Sri G.Satyanarayana Raju had issued Whip to all the 13 elected M.P.T.Cs. under the mandate of Telugu Desam that they shall be present in the special meeting to be held on11-7-2006 and vote in favour of Smt.Nelapati Suseela who is nominated by the party as a candidate for President elections, Mandal Parishad, Palakoderu and in favour of Sri M.V.Satyanarayana Raju who was nominated by the party as the candidate for Vice-President elections, Mandal Parishad, Palakoderu. The said party Whip was received by the petitioner on 11-7-2006 in advance to the meeting convened by the 1st respondent. Smt.Kadimi Baby, MPTC-I Palakoderu attended the special meeting convened at 1 p.m. on 11-7-2006 in the meeting hall of Mandal Parishad, Palakoderu at the time of election of co-opted Member. Later she left the meeting hall and did not attend the special meeting convened at 3 p.m. on 11-7-2006 for election of President and Vice-President, Mandal Parishad, Palakoderu. It is also further stated that the Telugu Desam Party whip Sri G.Satyanarayana Raju made a representation on 12-7-2006 to the Presiding Officer, Palakoderu to take necessary action against Smt.Kadimi Baby, MPTC No.1 Palakoderu II for not attending the special meeting held at 3 p.m. on 11-7-2006 in violation of party whip. Sri G.Satyanarayana Raju, T.D.P. Party Whip Palakoderu Mandal also submitted a copy of the contents of the party whip which was duly served on the petitioner i.e., acknowledgement obtained from the individual before stipulated contemplated time i.e., one hour before special meeting on 11-7-2006 to the Presiding Officer, Palakoderu. It is also further stated that according to the Election Rules, the 1st respondent had issued show cause notice to the petitioner who violated the party’s Whip and not participated in the special meeting held at 3 p.m. on 11-7-2006. The petitioner submitted her explanation to the 1st respondent on 20-7-2006 and as her explanation was not satisfactory and deserves no consideration the 1st respondent had passed orders pertaining to cessation of membership in proceedings No.C/19/2006 dated 21-7-2006. The same were served on her on 21-7-2006. Aggrieved by the cessation orders pertaining to her membership, she filed O.P.No.763/2006 in August 2006 in the Court of Principal District Judge, West Godavari, Eluru and the same was dismissed as demerited one on 20-12-2006. In reply to para- 2 of the affidavit it is stated that the contention of the petitioner that there are 13 M.P.T.Cs. of Telugu Desam Party and 6 M.P.T.Cs. of Congress party is not correct. In fact there are 13 M.P.T.Cs. of Telugu Desam Party and only 5 M.P.T.Cs. are elected under mandate of Congress Party and another one M.P.T.C. is an independent. Further it is stated that the averments that notice was issued by the 1st respondent on 5-7-2006 and it was informed that the election to the post of President and Vice-President would be held on 11-7-2006 at 1 p.m. in the Mandal Parishad office are not correct. It is stated that notice in Form II had been issued on 5-7-2006 and it was informed that the election for the post of co-opted member will be held on 11-7-2006 at 1 p.m. and election to the posts of President and Vice-President will be held on 11-7-2006 at 3 p.m. in the Mandal Parishad office, Palakoderu. 9. In reply to para-3 of the affidavit it is stated that the same are not tenable and far from truth. Further it is stated that as per election rules and law, when any recognized party issued whip to their party members they should honour the whip. In the present case, the petitioner had attended the M.P.T.C. office, Palakoderu at 1 p.m. on 11-7-2006 for co-opted member election and after swearing as MPDC member, the petitioner without informing the Presiding Officer i.e., the 1st respondent, left meeting hall intentionally and had not attended the special meeting at 3 p.m. The petitioner did not inform the facts to the 1st respondent either orally or in writing regarding her ill health or other circumstances which led her to leave the meeting hall. The petitioner did not produce Medical Certificate pertaining to her ill health from the competent authority to the 1st respondent while submitting her explanation dated 20-7-2006. The petitioner cannot predict the developments during election although T.D.P. is having majority of MPTC Members. Because of circumstances/environmental forces some other MPTCs may absent for special meeting or even if they attend the special meeting they may not participate in the elections by raise of hands. There may be rebel candidates for election of President and Vice-President among other T.D.P. party M.P.T.Cs. The petitioner mentioned certain points to defend her action in not attending the special meeting held at 3 p.m. on 11-7-2006 in violation of party Whip. It is a fact that the name of Nelapati Suseela alone was proposed for election as President and there was no contest and Smt.Nelapati Suseela had been elected as the President, Mandal Parishad, Palakoderu unanimously from T.D.P. The petitioner has no authority to violate the party whip and to decide the things. The 1st respondent acted according to the rules. 10. In reply to para-4 of the affidavit it is stated that the petitioner did not attend the special meeting on 11-7-2006. It is not correct that the party whip was not served on her. Sri G.Satyanarayana Raju, T.D.P. party whip submitted acknowledgement i.e., served copies of the party whip which were served on T.D.P. M.P.T.Cs. in token of receipt of the party whip to the 1st respondent at 2 p.m. on 11-7-2006 i.e., one hour before commencement of the special meeting vide G.O.Ms.No.173, PR & RD (Election and Rules) Department dated 10-5-22006 at para-2 of page-7. The petitioner’s signature on the served copy acknowledgement may be got verified with technical/signature verification expert for confirmation by this Court. The evidence of Sri G.Satyanarayana Raju, T.D.P. whip may also be adduced for confirmation regarding service of party whip on the petitioner. The petitioner had taken a copy of the whip and clearly signed on the Party Whip on 11-7-2006 and as per election law it is inevitable on her part to obey the party’s whip. The petitioner had submitted her explanation to the show cause notice without any evidence pertaining to ill health and it deserves no consideration. Accordingly the 1st respondent acted as per the rules and the law of elections and issued orders as per G.Os. and Election Commission instructions. In the affidavit filed by her in O.P.No.763/2006 on the file of Principal District Judge, West Godavari, Eluru, the petitioner mentioned that she resigned to T.D.P. party membership and sent her resignation letter to the District T.D.P. President Sri K.Subba Rayudu by courier. The receipt given by the courier people is not having legal validity. If the petitioner really resigned to the post of T.D.P. membership on 10-7-2006, the petitioner is not supposed to receive the party’s whip on 11-7-2006. 11. In reply to paras 5 and 6 of the affidavit filed in support of the writ petition it is stated that it is a fact that the petitioner filed O.P.No.763/2006 on the file of Principal District Judge, West Godavari District, Eluru in August 2006 and the said O.P. was dismissed by the order dated 20-7-2006 and a decree was also passed. It is also further stated that the contention of the petitioner that she had not received the party whip is not correct. It is clear that the party whip was served on the petitioner on 11-7-2006 and she signed on the whip on the same day. The petitioner intentionally left the meeting hall and did not attend the special meeting conducted at 3 p.m. on 11-7- 2006. The petitioner had not submitted written request stating her condition of ill health to the Presiding Officer before leaving the meeting hall on 11-7-2006. It clearly shows the violation of the party whip and whatever may be the result it is immaterial to the petitioner and she was to sit in the meeting till the election is completed. The 1st respondent acted as per the election law, the instructions issued by the Government in G.O.Ms.No.173 dated 10-6-2006 and the circular of the State Election Commission No.1241/SEC/B1/2006 dated 27-6-2006. 12. In reply to para-8 of the affidavit filed in support of the writ petition it is stated that the petitioner is at liberty to submit her representation to quash the order and decree in O.P.No.763/2006 dated 20-12-2006 passed by the Principal District Judge, West Godavari District, Eluru in confirming the impugned proceedings issued by the 1st respondent vice Roc.C/19/2006 dated 21-7-2006. The State Election Commission issued notification vide No.2425/SEC-B1/2006 dated 30-12-2006 with Schedule in Annexure-II (Election Programme). The Collector and the District Election Authority issued notification in the District to conduct elections to vacancies of M.P.T.C., Palakoderu-I and Palakoderu II vide Rc.No.P1/6480/2006 dated 1-1-2007. The Collector and District Election Authority appointed Assistant Commissioner, Endowments, Eluru as the Returning Officer for conduct of Elections inPalakoderu Mandal. The Returning Officer issued notice of election for conduct of election to MPTC Palakoderu-I and MPTC Palakoderu II on 4-2-2007. In pursuance of the status quo orders of this Court in this case, the State Election Commission issued orders to stop further proceedings regarding conduct of elections in Palakoderu Mandal. The Returning Officer, Palakoderu stopped all the subsequent process of elections during nomination stage. 13. In reply to para-9 of the affidavit filed in support of the writ petition it is stated that the 1st respondent acted according to the election law and the rules. The petitioner left the meeting hall without taking any oral or written permission and did not attend the special meeting even though the party whip was served on her. 14. In reply to para-10 of the affidavit it is stated that the party whip was issued by the party President of Telugu Desam Party to all the 13 elected Members of M.P.T.C. under the mandate and the Members should obey the whip. The whip had been received by the petitioner and she signed on it but the petitioner disobeyed the whip conditions and left the meeting hall intentionally without making any oral or written request to the Presiding Officer/1st respondent and left the meeting hall intentionally without making any oral or written request to the Presiding Officer/1st respondent on 11-7-2006 after election of co-opted member and swearing as MPTC, Palakoderu-I and later did not attend the special meeting at 3 p.m. on 11-7-2006 which clearly shows the gross negligence of the petitioner. Later the petitioner gave explanation to the notice issued by the 1st respondent without any valid reason and mentioned simply her ill health without enclosing medical certificate which amounts to the violation of election rules. The petitioner is fully aware of the facts and rules of election and further developments and she intentionally left the meeting hall and did not attend the special meeting without any valid reason and filed the suit with untenable grounds. There are no merits in the writ petition and the same is liable to be dismissed. 15. These are the respective stands taken by the parties. 16. No doubt Sri Nagender Reddy, the learned Counsel representing the writ petitioners in both these Writ Petitions would maintain that the direction at the best may be to vote in favour of Nelapati Suseela and the same was not violated at all since there was no election and in the light of the same, the Rules governing the filed may have to be interpreted. 17. On the contrary Sri Prabhakar Rao would maintain that there was election, may be it can be said that it was unanimous, but to say that there was no election at all, cannot be sustained. The learned Counsel also would maintain that at the best it may be said that there was no contest and by that itself the issuance of whip and the violation thereof cannot be watered down in the light of the Rules governing the filed. 18. The Andhra Pradesh Conduct of Elections of Member (Co-opted), President and Vice-President of Mandal Parishad and Members (Co-opted), Chairperson and Vice- Chairperson of Zilla Parishad Rules 2006 had been made in exercise of powers conferred under Section 268 r/w. Clause (v) of sub-section (1) of Section 149, Section 153, clause (v) of sub-section (3) of Section 177 and Section 181 of A.P. Panchayat Raj Act,1994 (Act 13 of 1994) (in short referred to as “Rules” for the purpose of convenience). Rule 2 of the said Rules deals with Definitions and Rule 2(iv) specifies that unless the rules in this context otherwise requires, the words and expressions used but not defined in these rules shall have the meanings respectively assigned to them in the Act. Rule 10 of the Rules deals with Manner of election (President and Vice President, Mandal Parishad) and Rule 10(2) specifies “if only one candidate is duly proposed, he shall be declared to have been elected”. No doubt strong reliance was placed on Rule 10(2) of the Rules by the learned Counsel representing the writ petitioners in these Writ Petitions. Rule 11 deals with Disqualification for disobedience of party whip (Mandal Parishad) and the said Rule reads as hereunder: (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 him under his 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 preceding the day of election to the office of the President and Vice-President of the Mandal 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 to the Presiding Officer at least an hour before the commencement of the special 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, also furnish a copy of the acknowledgement 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, he shall record the same