* THE HON’BLE SRI JUSTICE B. SUDERSHAN REDDY AND * THE HON’BLE SRI JUSTICE C.V. RAMULU + W.P. No.26282 OF 2004 % Dated 18-01-2005 # M. Anandamma & 9 Others …. Petitioners Vs. $ The Revenue Divisional Officer/Presiding Officer, Kurnool, Kurnool District & 5 others …. Respondents/Respondents ! Counsel for the Petitioners: Sri. E. Ayyapu Reddy ^ Counsel for Respondents.1 & 2: Advocate General ^ Counsel for Respondent No.3: Sri C.V. Mohan Reddy. ^ Counsel for Respondents 4 to 6: Sri N. Subba Reddy < GIST: > HEAD NOTE: ? Cases referred 1) 2002(6) ALT 18 (DB) 2) 2004(2) ALD 261 (DB) 3) (2002) 8 SCC 237 4) (2003) 6 SCC 401 5) 2002(1) ALD 398 (DB) 6) 1998(5) ALT 323 (DB). C/15 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE SRI JUSTICE B. SUDERSHAN REDDY And THE HON'BLE SRI JUSTICE C.V.RAMULU W.P. No.26282 of 2003 Between: 1 M. Anandamma, W/o Narayana, aged about 34 years, Member, M.P.T.C., R/o. G. Singavaram, Kurnool Mandal & District. 2. M. Nirmala, W/o Pedda Ayyapureddy, aged about 41 years, Member, M.P.T.C., R/o. Nandanapalli, Kurnool Mandal & District. 3 K. Vijayudu, S/o Veeraiah, aged about 36 years, Member, M.P.T.C., R/o Pasupula, Kurnool Mandal & District. 4 B. Maddamma, W/o Ramakrishna, aged about 36 years, Member, M.P.T.C., R/o B. Thandrapadu, Kurnool Mandal & District. 5. B. Narasamma, W/o Pedda Rangaiah, aged about 60 years, Member, M.P.T.C., R/o. Basavapuram, Kurnool Mandal & District. 6. B. Govindamma, W/o Boya Talari Pedda Mandakal, aged about 45 years, Member, M.P.T.C., R/o. Multala, Kurnool Mandal & District. 7. M. Raghavareddy, S/o Raghuram Reddy, aged about 46 years, Member, M.P.T.C., R/o Ramata, Kurnool Mandal & District. 8. P. Viswanathareddy, S/o Swamy Reddy, aged about 47 years, Member, M.P.T.C., R/o. Gargeyapuram-I, Kurnool Mandal & District. 9. Chinna Nagaiah, S/o Chinna Naganna, aged about 56 years, Member, M.P.T.C., R/o. Singuvapadu, Kurnool Mandal & District. 10. K. Eswaraiah, S/o Pedda Lakshmanna, aged about 26 years, Member, M.P.T.C., R/o R. Konthalapadu, Kurnool District. ..... PETITIONERS AND 1. The Revenue Divisional Officer/ Presiding Officer, Kurnool, Kurnool District. 2. The State of A.P., Rep. by its Secretary, Panchayat Raj Department, Secretariat Buildings, Hyderabad. 3. Sri M. Mani Gandhi, S/o Sikhamani, Mandal Praja Parishad, Kurnool Mandal, Kurnool District. 4. R. Lukaiah, S/o. Chinna John, aged 48 years, S.C. Hindu, R/o. Stantanpuram, M.P.T.C. Member, Kurnool Rural Mandal, Kurnool District. 5. V. Jayasimha Reddy, S/o. Krishna Reddy, aged 44 years, M.P.T.C. Member, Panchalingala, Kurnool Rural, Kurnool District. 6. B. Venkata Naidu, S/o. Giddaiah, age 30 years, M.P.T.C. Member, Nidjuru, Kurnool Rural, Kurnool Mandal. (Respondents 4 to 6 are impleaded vide Court Order dated 22.01.2004 in WPMP 1216/2004). .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate Writ, order or direction, more particularly one in the nature of Writ of Mandamus to declare Sub-Rules 6 and 7 of Rule 13 of The Andhra Pradesh Conduct of Election of Member (Co-opted) and President/Vice-President of Mandal Parishad and Member ( Co- Opted) and Chairman/Vice-Chairman of Zilla Parishad Rules, 1994 issued in G.O.Ms.No. 756, PR, RD & R. Department, dated 30-11-1994, amended in G.O.Ms. No.81, PR, RD, dated 07-02-1995 as unconstitutional and unenforceable as they offend the Articles 14, 19 and 21 of the Constitution and consequently declare the orders in R.C. No.A/394/2003, dated 06-12-2003, passed by the 1st respondent, as illegal and un-constitutional. W.P.M.P. No.6787 of 2004 IN W.P. No.26282 of 2004 Between: 1 M. Anandamma, W/o Narayana, aged about 34 years, Member, M.P.T.C., R/o. G. Singavaram, Kurnool Mandal & District. 2. M. Nirmala, W/o Pedda Ayyapureddy, aged about 41 years, Member, M.P.T.C., R/o. Nandanapalli, Kurnool Mandal & District. 3 K. Vijayudu, S/o Veeraiah, aged about 36 years, Member, M.P.T.C., R/o Pasupula, Kurnool Mandal & District. 4 B. Maddamma, W/o Ramakrishna, aged about 36 years, Member, M.P.T.C., R/o B. Thandrapadu, Kurnool Mandal & District. 5. B. Narasamma, W/o Pedda Rangaiah, aged about 60 years, Member, M.P.T.C., R/o. Basavapuram, Kurnool Mandal & District. 6. B. Govindamma, W/o Boya Talari Pedda Mandakal, aged about 45 years, Member, M.P.T.C., R/o. Multala, Kurnool Mandal & District. 7. M. Raghavareddy, S/o Raghuram Reddy, aged about 46 years, Member, M.P.T.C., R/o Ramata, Kurnool Mandal & District. 8. P. Viswanathareddy, S/o Swamy Reddy, aged about 47 years, Member, M.P.T.C., R/o. Gargeyapuram-I, Kurnool Mandal & District. 9. Chinna Nagaiah, S/o Chinna Naganna, aged about 56 years, Member, M.P.T.C., R/o. Singuvapadu, Kurnool Mandal & District. 10. K. Eswaraiah, S/o Pedda Lakshmanna, aged about 26 years, Member, M.P.T.C., R/o R. Konthalapadu, Kurnool District. ..... Petitioners AND 1. The Revenue Divisional Officer/ Presiding Officer, Kurnool, Kurnool District. 2. The State of A.P., Rep. by its Secretary, Panchayat Raj Department, Secretariat Buildings, Hyderabad. 3. Sri M. Mani Gandhi, S/o Sikhamani, Mandal Praja Parishad, Kurnool Mandal, Kurnool District. .. Respondents For the reasons stated in the affidavit filed herein, the High Court may be pleased to raise the following additional grounds: i. The proviso to under Section 153 of the A.P. Panchayat Raj Act which is penally in nature cannot be enforced as the State Legislature has not provided the statutory authority for referring the question of dis- qualification and the manner in which it has to be decided by the said statutory authority; ii. Article 243F(2) is mandatory and as the State Legislature of the State has not provided the Statutory Authority the 1st respondent has no jurisdiction to pass the impugned order. Counsel for the Petitioners in W.P. & W.P.M.P: Sri E.AYYAPU REDDY Counsel for the Respondents 1 & 2 in W.P. & W.P.M.P: ADVOCATE GENERAL Counsel for Respondent No.3 in W.P. & W.P.M.P.: Sri C.V. Mohan eddy. Counsel for the Respondents 4 to 6 in W.P.: Sri N. Subba Reddy The Court made the following : ORDER: (Per Hon’ble Sri Justice B. Sudershan Reddy) Shorn of all the details, the only question that falls for our consideration in this writ petition is as to whether the Proceedings in R.C.No.A/394/2003, dated 06- 12-2003, passed by the 1st respondent-Revenue Divisional Officer, Kurnool, declaring that the petitioners have ceased to hold office of the Member of Mandal Parishad suffer from any legal or constitutional infirmity? In order to appreciate the question as to the validity of the impugned proceedings, few relevant facts leading to filing of this writ petition may have to be noticed. The facts are tell-tale depicting in vivid details, the extent of degeneration crept into local self-governing institutions. The local self-Government units have become play-fields where political games are played with the sole motive of capturing elected offices. Democratic norms and Rule of law are thrown to wind. FACTS IN BRIEF: That the elections were held for Kurnool Mandal Parishad on 15th July, 2001. Out of 19 Mandal Parishad Territorial Constituencies for which elections were held, all the petitioners 10 in number and the 3rd respondent were elected from the respective Mandal Parishad Territorial Constituency on behalf of Congress Party. There were only 5 members elected from Telugu Desham Party. One person was elected as an Independent candidate. Two members were elected from Communist Party (Marxist). The 3rd respondent was elected as President of Mandal Parishad, Kurnool. It is however alleged that the 3rd respondent got himself elected with the support of Telugu Desham Party members and one Independent candidate. Be it as it may, petitioner Nos. 1, 4, 5, 6, 7, 8 and 10 were disqualified from the membership of Mandal Parishad on the ground that they have violated the whip issued by the Congress Party and voted against the 3rd respondent in the presidential election. Further details in this regard need not be noticed in detail except to note that the order of dis-qualification was set aside by this Court in W.P.No. 20346 of 2001. It is evident from the averments made in the affidavit and counter- affidavit that the entire Mandal Parishad was divided into two groups cutting across the party lines. One Vijayasimha Reddy belonging to Telugu Desham Party was elected as Vice-President of Mandal Parishad even though the Telugu Desham Party had only 5 members in the Mandal Parishad. There were many twists and turns in the process of internecine war between two groups cutting across the party lines. The said Vijayasimha Reddy who was elected as Vice-President of the Mandal Parishad initially with the help of the 3rd respondent took initiation and proposed a No-confidence motion against the 3rd respondent, in which he was supported by all the petitioners. The 1st respondent convened a meeting on 22-10-2003 to consider the No-confidence motion moved against the 3rd respondent. The Vice-President, Sri Vijayasimha Reddy, for whatever reasons, had submitted his resignation as Vice-President after issuance of notice of No-confidence on 1-10-2003. The said resignation was accepted even before No-confidence motion was put to vote. The No-confidence motion moved against the 3rd respondent was passed on 22-10-2003. The facts speak for themselves. That in the vacancy caused by the resignation of the said Vijayasimha Reddy, a meeting was convened to be held on 05-11-2003 to fill up the casual vacancy of the Vice-President. The meeting could not be held for want of quorum and was adjourned to 29-11-2003. The 10th petitioner was elected as Vice-President in that meeting held on 29-11- 2003 by a majority of 13 against 6 votes. It is a different matter altogether that the 10th petitioner submitted his resignation on 03-12-2003 itself, in protest against the alleged undemocratic and autocratic attitude of the 3rd respondent, for the 3rd respondent did not resign in spite of losing confidence of the Mandal Parishad. It is in that meeting held on 29-11-2003 the petitioners are alleged to have incurred disqualification on the ground of their voting contrary to the whip issued by the Party Whip. Strictly speaking, these events may not have any bearing upon the question that falls for our consideration, namely, as to the validity of the impugned order passed by the 1st respondent-Revenue Divisional Officer disqualifying the petitioners herein from being continued as members of the Mandal Parishad. We have noted them to highlight as to how the local bodies have ceased to function as the units of self-government. They have become play-fields for playing nefarious power games by the unscrupulous elements without any regard whatsoever to the electorate by whom they were elected. The Constitution (73rd Amendment) Act, 1992 came into force on 24-4- 1992 to give effect to one of the Directive Principles of State Policy, viz; Article 40 of the Constitution of India, which directs the State to organise village panchayats as units of self-Government. The units of local self-Government are envisaged as the base democratic institutions of a pyramid of the democratically organised and functioning self-governing units. These institutions were created with a noble idea to make them as social, political and economical entities and ultimately shape them as democratic, political and administrative units. They unfortunately became the victims in the hands of powerful virtually defeating the very laudable object for which they were created and brought into existence. Constitutional provisions are subverted with impunity. We shall now notice the crux of the controversy: The 1st respondent-Revenue Divisional Officer issued a notice dated 2-12-2003 to the petitioners herein requiring them to show cause as to why they should not be disqualified from being continued as members of the Mandal Parishad under Section 153 of the A.P. Panchayat Raj Act, 1994 (Act 13 of 1994) (for short ‘the Act’) read with A.P. Conduct of Election of Member (Co.opted) and President/Vice President of Mandal Parishad and Members (Co.opted) and Chairman/ Vice-Chriaman of Zilla Parishad Rules, 1994 (for short ‘the Rules’) for violating the whip and the directions issued on behalf of the Congress party in the matter of voting in the elections of Vice-President of Mandal Parishad, Kurnool. The petitioners submitted their explanation on 15-12-2003 inter alia denying the allegations levelled against them. The sum and substance of their explanation is that they have no knowledge about the whip issued by the Congress party; they have not received any communication till the time of special meeting of Mandal Parishad held on 29-11-2003 convened to elect the Vice-President. The Presiding Officer, having considered the objections of the petitioners and the entire material available on record, found that the party Whip has affixed the copy of the contents of the whip issued by him on the doors of the respective houses of the petitioners and a copy thereof was submitted to the Presiding Officer one-hour before the special meeting held on 05-11-2003 as well as on 29-11-2003 as is required in law. Further, the whip issued by the 3rd respondent appointed by the Congress party requiring all the members of the party to attend the meeting to be held on 05-11-2003 and to cast their votes in favour of one G. Naganna who was in the fray for the post of Vice-President on behalf of the party has been published in Andhra Jyothi, Andhra Bhoomi and Eenadu daily newspapers, dated 04-11-2003 as well as District Editions of ‘Vaartha and Andhra Bhoomi’ daily newspapers, dated 28-11-2003, much before the meeting that was held on 29-11-2003. The 1st respondent, accordingly, declared the petitioners herein have incurred disqualification under Section 153 of the Act. Sri E. Ayyapu Reddy, learned counsel for the petitioners, inter alia, submitted that the impugned order suffers from non-application of mind for the 1st respondent passed the order in a very casual and mechanical manner without adverting to any of the contentions raised by the petitioners in their reply submitted to the show-cause notice issued requiring them to submit their explanations. The learned counsel further submitted that a copy of the contents of the whip and the directions requiring them to vote in favour of the candidate set up by the party was not served upon the petitioners nor the same was made available to the presiding officer atleast one-hour before commencement of the special meeting as is required in law. This infirmity, according to the learned counsel, itself is enough to declare the impugned proceedings void and inoperative. That an application has been filed to raise the following additional grounds: i. The proviso to Section 153 of the A.P. Panchayat Raj Act which is penal in nature cannot be enforced as the State Legislature has not provided the statutory authority for referring the question of disqualification and the manner in which it has to be decided by the said statutory authority; ii. Article 243-F(2) is mandatory and as the State Legislature of the State has not provided the statutory authority, the 1st respondent has no jurisdiction to pass the impugned order. Sri N. Subba Reddy, learned counsel for respondent Nos. 4 to 6, while adopting the submissions made by Sri Ayyapu Reddy, further submitted that service of notice by way of publication in the newspapers is not enough. Notice must be served on each member as is required in law. Reliance is placed on the decision of a Division Bench of this Court in S. Jyothi v. Presiding Officer/Election Officer. In the instant case, according to the learned counsel, there is no proof of service of whip on any of the members as is required in law. The Presiding Officer is duty bound to announce, before commencement of the proceedings, that the Whip has furnished a copy of the contents of the whip issued by him and the same was duly served upon the members of the political party requiring them to vote in favour of the candidate set up by the political party concerned. The learned Advocate General, appearing on behalf of the 1st respondent, submitted that personal service of the whip on each of the members is not the requirement in law and the same cannot be insisted upon. Knowledge of the contents of the whip issued by the party Whip would be enough. In the instant case, the contents of the whip were published in the leading newspapers much before the special meeting was convened and each of the members had the knowledge about the whip issued by the party and each one of them is bound to comply with the same and non-compliance thereof results in automatic disqualification of all those members who defied the whip and the directions and voted contrary to the whip. Sri C.V. Mohan Reddy, learned counsel for the 3rd respondent, submitted that no particular mode of service of contents of whip has been provided for in law and what is required is service of contents of the whip and the directions issued requiring the members to vote in favour of the candidate set up by the political party concerned. Knowledge of contents of the whip issued by the Whip appointed by the political party concerned is enough requiring the members of the political party concerned to follow the directions and vote in favour of the candidate set up by the political party concerned; failure to comply with the whip and the directions issued, results in automatic disqualification of such of those members who are found to have defied the whip and the directions issued by the party. The rules and the instructions issued by the Election Commission do not provide for any particular mode of service, and therefore, it cannot be insisted that each of the members should be served with the contents of the whip individually. The questions that are required to be considered according to the learned counsel are; (1) whether there was sufficient service of notice of contents of the whip and the directions issued by the Whip ? and (2) whether the principles of natural justice have been complied with ? It was further submitted that the Whip appointed by the political party concerned cannot be saddled with the responsibility of performing an impossible task of service of notice on each of the members which may not be practicable more particularly in a situation where the members may not be available or unwilling to receive the notices. We have given our careful consideration to the submissions made during the course of hearing of this writ petition. In order to appreciate the submissions, it is just and necessary to notice the relevant provisions of law as well as the instructions issued by the State Election Commission. Section 153 of the Act, which deals with election, reservation and term of office of President and Vice-President reads: “Section 153. Election, reservation and term of office of President and Vice-President:- (1) For every Mandal Parishad there shall be one President and one Vice-President who shall be elected by and from among the elected members specified in clause (i) of sub-sec. (1) of Sec.149 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. If at an election held for the purpose no President or Vice-President is elected, fresh election shall be held. The names of the President and the Vice-President so elected shall be published in the prescribed manner: Provided that if a Member of the Legislative Assembly of the State or of either House of Parliament is elected to either of the said offices, he shall cease to hold such office unless within fifteen days from the date of election to such office, he ceases to be a Member of the Legislative Assembly of the State or of either House of Parliament by resignation or otherwise. Provided further 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. (2) ……………………………. a. ……………… b. ……………… c. ……………… d. ……………… (2A) …………………………… (3) ……………………………… (4) ……………………………… (5) ……………………………… (6) ………………………………” Part - IV of the Rules containing Rules 11 to 14 deal with the Election of President/Vice-President of Mandal Parishad. Rule 13 of the Rules, in particular, provides for procedure and the manner of conduct of meeting by the Presiding Officer specially convened for conduct of election of President/Vice- President of a Mandal Parishad. Rule 13 of the Rules so far as relevant for our present purpose reads: 13.(1) A candidate for the office of the President/Vice- President of a Mandal Parishad shall be proposed by one member and seconded by another. The names of all the candidates validly proposed and also seconded shall be read out by the Presiding Officer at such meeting. A candidate for the Office of President/Vice-President of a Mandal Parishad shall be proposed by one member and seconded by another. 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 10.00 A.M. on the day of the election for the election of 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. 2. ………………………… 3. ………………………… 4. ………………………… 5. ………………………… 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. Explanation : - Recognised political party means a political party recognised by Election Commission of India, New Delhi. (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 that the Member has ceased to hold Office and the decision of the Presiding Officer shall be final.” Part - V of the Rules makes the same procedure referred to hereinabove contained in Part - IV of the Rules applicable for filling up a casual vacancy in the office of President/Vice-President of the Mandal Parishad. The State Election Commission in purported exercise of its power under Section 201 of the Act issued instructions with regard to procedure to be followed in holding special meeting for election of Chairman/Vice-Chairman and Co-opted members of Zilla Parishads and President/Vice President and Co- opted members of Mandal Parishads vide Circular No.853/SEC/B1/2001-3, dated 19-07-2001. The said instructions require to be followed by all the Presiding Officers inter alia declare that the appointment of Whip is valid only if the State President or a person authorised by him intimates the name of the Whip to the Presiding Officer before 11.00 a.m., on the day preceding the day of election. If a person who is not a member of the house is appointed as whip, he will not be permitted to participate in the meeting. The political parties are required to appoint only one Whip for election to a particular body. The provisions pertaining to whip are applicable only to the members of Mandal Parishads/Zilla Parishads elected on behalf of a recognised political party. The said provisions do not apply to the members elected on behalf of other political parties and to the independent candidates. Sri E. Ayyapu Reddy, learned counsel for the petitioners, as well as Sri N. Subba Reddy, learned counsel appearing for respondents 4 to 6, have