.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7115 OF 2015
(ARISING OUT OF SLP (C) No. 36764/2014)
Edara Haribabu …….Appellant(s)
VERSUS
Tulluri Venkata Narasimham
& Ors. ……Respondent(s)
WITH
CIVIL APPEAL No.7116 OF 2015
(ARISING OUT OF SLP (C) No. 36773/2014)
AND
SPECIAL LEAVE PETITION (C) Nos. 5896-5897/2015
Mudavath Manthru Naik …….Petitioner(s)
VERSUS
Edara Haribabu & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
In S.L.P.(c)Nos. 36764/2014 & 36773/2014
1. Leave granted.
2. These appeals are filed against the common interim order dated
10.12.2014 passed by the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh in W.A.M.P. No. 3416 of
2014 in W.A. No.1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A. No.1388
of 2014 whereby while disposing of the applications filed in these appeals,
the High Court directed the Vice-Chairperson of Zilla Praja Parishad (in
short “ZPP”), Prakasam District, ongole to discharge the functions of the
Chairperson for the office of Zilla Praja Parishad, Prakasam District,
Ongole until further orders.
3. In order to appreciate the issue involved in these appeals, which lie
in a narrow compass, it is necessary to state a few relevant facts which
were taken from the record of the S.L.Ps.
4. The appellant is the duly elected member of Zilla Parishad
Territorial Constituency (in short “ZPTC”) of Ponnaluru Mandal, Prakasam
District. He had contested this election as a candidate of Telugu Desam
Party (in short “TDP”) for Prakasam District, Ongole. On 26.06.2014, the
Election Commission for the State of Andhra Pradesh (in short “the State
Election Commission”)-respondent No.3 herein issued orders directing
various District Collectors including the District Collector-cum-Presiding
Officer, Prakasam District (Respondent No.2 herein) to conduct election to
the office of Chairperson and Vice-Chairperson of the Zilla Praja Parishads
(in short ‘ZPP’) on 05.07.2014.
5. However, the elections to the offices of Chairperson and Vice-
Chairperson of ZPP, Prakasam District could not be held on the said date,
i.e. 05.07.2014, and were accordingly postponed to a later date.
6. On 07.07.2014, an order was issued by the District Collector,
Prakasam District (respondent No.4 herein) requesting the State Election
Commission (respondent No.3 herein) to hold the election on 13.07.2014.
7. On 09.07.2014, the State President of the TDP addressed a letter to
the State Election Commission (respondent No.3) informing that one Shri
Bonda Uma Maheswara Rao, General Secretary of the TDP, is authorized to
issue Form-A and Form-B as prescribed in Rule 22(1) of the Andhra Pradesh
Conduct of Election of Member (Co-opted), President and Vice-President of
Mandal Parishad and Members (Co-opted), Chairperson and Vice-Chairperson of
Zila Parishad Rules, 2006 (hereinafter referred to as “The Rules”) and is
also authorized to issue the appointment of whip for the said elections in
the State of Andhra Pradesh. Shri Bonda Uma Maheswara Rao then issued Form-
A dated 10.07.2014 authorizing one Shri D. Janardhana Rao, the District
President of the Prakasam District TDP to issue Form-B to the candidates
set up by the TDP in the aforesaid election insofar as ZPP, Prakasam
district was concerned and on the same day he also informed the same to the
District Collector-cum-Presiding Officer, Prakasam District, Ongole.
8. On 12.07.2014, Shri D. Janardhana Rao informed the District Collector-
cum-Presiding Officer (respondent No.2) that Shri Tulluri Venkata
Narasimham (respondent No.1) has been appointed as whip on behalf of the
TDP in relation to the election to the office of Chairperson and Vice-
Chairperson of ZPP, of Prakasam District. Shri Tulluri Venkata Narasimham
(Respondent No.1) then issued a whip on 12.07.2014 directing all the ZPTC
members belonging to the TDP to vote in favour of Shri Manne Ravindra for
the office of Chairperson. On the next day, i.e. 13.07.2014, respondent
No.1 issued another whip directing all the TDP members of the ZPTC to vote
in favour of Smt. P. Koteswaramma for the office of Vice-Chairperson.
9. According to the appellant, when the whip was issued, the appellant
was not present in Ongole but was at Hyderabad from 07.07.2014 to
12.07.2014. It was for this reason, the appellant alleged that he neither
received nor served with the copy of two whips which were alleged to have
been issued. He also alleged that his signature acknowledging receipt of
the said whips were either forged or fabricated.
10. On 13.07.2014, the said elections were conducted by the District
Collector-cum-Presiding Officer. The appellant, however, contested the
election to the office of Chairperson, ZPP, Prakasam District as an
“independent candidate” and cast his vote in his own favour and in favour
of one Shri N. Balaji, an independent candidate for the office of Vice-
Chairperson. The appellant won the election and was accordingly declared
elected as the Chairperson by one vote defeating Sri Manne Ravindra, the
candidate proposed by the TDP as a candidate to the post of Chairperson.
11. This led to filing of a complaint by Shri Tulluri Venkata Narasimham
(respondent No.1) against the appellant on 14.07.2014 before the District
Collector-cum-Presiding Officer (respondent No.2) alleging inter alia that
he was appointed as a whip by the TDP in relation to the said election held
on 13.07.2014 and that the appellant cast his vote in the said election in
violation of the whips issued by the TDP on 12.07.2014 and 13.07.2014.
12. On 16.07.2014, a show cause notice was issued to the appellant
calling upon him to show cause as to why action should not be taken against
him for violating the directions issued in the whips and why he should not
be disqualified as per G.O.Ms. No. 173 dated 10.05.2014 and Section 22(5)
of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter referred to as
“the Act”).
13. The appellant submitted his explanation on 04.08.2014 stating inter
alia that he had not violated the whips. It was also his case that he had
not received any whip and his signatures on the whips’ receipts were either
fake or fabricated by someone. He also stated that he was at Hyderabad
from 07.07.2014 to 12.07.2014 and hence did not receive the alleged whips
even if issued. He, therefore, prayed the District Collector-cum-Presiding
Officer (respondent No.2) to conduct a detailed inquiry in the matter.
14. By order dated 11.08.2014 in Rc.No. P1/4598-Indirect election/13, the
Presiding Officer & District Collector, Prakasam District, Ongole
disqualified the appellant as the member of ZPTC, Ponnaluru and directed
him to vacate the office of the Chairperson, ZPP, Prakasam Dist., Ongole.
15. On 12.08.2014, the Chief Executive Officer (in short “CEO”), ZPP,
Ongole by proceedings in Rc.No.P1/4959/2014, directed Shri N. Balaji, Vice-
Chairperson to temporarily take over the charge of the office of
Chairperson until a new Chairperson is duly elected.
16. Challenging the order dated 11.08.2014 passed by the Presiding
Officer & District Collector, Prakasam District, Ongole, the appellant
filed W.P.No. 23541 of 2014 before the High Court. Vide order dated
22.08.2014, the High Court dismissed the petition granting liberty to the
petitioner therein to approach the District Court by taking recourse to the
remedy available under Section 181-A of the Act.
17. The appellant accordingly filed E.O.P. No. 8 of 2014 and E.O.P. No. 9
of 2014 before the Ist Additional District Judge, Ongole against the order
dated 11.08.2014 passed by the Presiding Officer on the grounds pleaded
therein. He also filed I.A.Nos.1697 of 2014 in E.O.P No. 8/2014 and
I.A.No.1684 of 2014 in E.O.P No. 9/2014 to grant ad interim injunction by
suspending the order dated 11.08.2014 passed by the Presiding Officer,
Ongole in Rc. No. P1/4598-Indirect Election/B. By orders dated 07.10.2014,
the Ist Additional District Judge dismissed the said I.As. and declined to
grant injunction prayed by the appellant.
18. Questioning the order dated 07.10.2014 passed by the Ist Additional
District Judge, Ongole, in I.A. No. 1697 of 2014 in E.O.P. No. 8 of 2014 &
I.A.No. 1684 of 2014 in E.O.P. No. 9 of 2014, the appellant filed W.P. Nos.
30790 and 30791 of 2014 before the High Court of Judicature at Hyderabad
for the State of Telangana and the State of Andhra Pradesh.
19. In view of the disqualification of the appellant herein, a
representation was submitted by Mr. Garinipudi Steeven & 24 others on
28.08.2014 to the State Election Commission and the District Collector-cum-
Presiding Officer for conducting fresh elections. Since the said
application was not being considered by the State Election Commission, the
abovesaid petitioners filed W.P. No. 30799 of 2014 before the High Court.
20. The learned Single Judge of the High Court heard W.P.Nos. 30790,
30791 and 30799 of 2014 together and by common order dated 07.11.2014,
allowed W.P. Nos. 39790 and 30791 of 2014 filed by the appellant herein
and quashed the order dated 07.10.2014 passed by the Ist Additional
District Judge. The learned Single Judge then suspended the proceedings
dated 11.08.2014 by which the appellant was disqualified as ZPTC member and
consequently as Chairperson of ZPP. So far as W.P. No.30799 of 2014, which
was filed for conducting fresh election in view of the disqualification of
the appellant herein, was concerned, it was dismissed.
21. On 08.11.2014, the appellant addressed a letter to the CEO, ZPPs,
Prakasam District, Ongole informing him that the order dated 11.08.2014
passed by the District Collector-cum-Presiding Officer, Prakasam District
regarding disqualification of his membership as ZPTC and also Chairperson
of ZPP was suspended vide order dated 07.11.2014 passed by the learned
Single Judge of the High Court in W.P. Nos. 39790 and 30791 of 2014 and
hence the appellant be allowed to resume the office of the Chairperson,
ZPP. Prakasam District.
22. The appellant accordingly on 08.11.2014 resumed the office of
Chairperson and took over the charge of the office of the Chairperson, ZPP,
Prakasam District and started conducting various meetings and took various
decisions.
23. To complete the narration of the facts, it may here be mentioned that
one Rajendra Prasad, felt aggrieved of the order dated 12.08.2014 passed by
the CEO in Rc.No.P1/4959/2014, by which Mr. N. Balaji Vice-Chairperson was
temporarily allowed to take over the charge of the office of Chairperson
consequent upon declaration of appellant’s disqualification for the post of
Chairperson and filed a writ petition bearing W.P.No.31113 of 2014 before
the High Court.
24. Vide order dated 12.11.2014, the learned Single Judge of the High
Court allowed W.P.No.31113 of 2014 filed by M.Rajendra Prasad and suspended
the proceedings dated 12.08.2014 subject to further orders.
25. In the meantime, Shri Tulluri Venkata Narasimham- respondent No.1
herein filed W.A.M.P. No. 3416 of 2014 in W.A.No. 1386 of 2014 and
W.A.M.P. No. 3418 of 2014 in W.A. No. 1388 of 2014 before the High Court
challenging the order dated 07.11.2014 passed by the learned Single Judge.
26. On 12.11.2014, the Chief Executive Officer (CEO), ZPP addressed a
letter in Rc. No.P1/4598/High Court Cases/2013 to the Commissioner,
Panchayat Raj & Rural Development stating that pursuant to the order dated
07.11.2014 passed by the High Court, the appellant has resumed the office
of the Chairperson, ZPP, Prakasam District on 08.11.2014. However,
respondent No.1, on his part informed that he had preferred an appeal
against the order dated 07.11.2014 before the High Court. Though there
was no interim order passed in the writ appeals filed by respondent No.1
herein before the High Court yet the CEO sought clarifications from the
Commissioner on this issue as to what should be done in the case.
27. On 13.11.2014, the appellant, was constrained to send a legal notice
to the CEO to ensure compliance of the order dated 07.11.2014 passed by the
learned Single Judge and co-operate with the appellant to enable him to
discharge the duties as Chairperson and forthwith withdraw the
clarification letter dated 12.11.2014 sent by him to the Commissioner,
which according to appellant was not at all necessary.
28. On 14.11.2014, the appellant also addressed a letter to the
Commissioner against the CEO and Dy. C.E.O. and requested him to take
disciplinary action against them. By letter dated 15.11.2014, the
Commissioner informed to the Secretary to the Government that the appellant
has resumed the office of the Chairperson from 08.11.2014.
29. On 25.11.2014, one Shri Lakshminarayana filed W.P. No. 36421 of 2014
seeking suspension of proceedings dated 12.08.2014 of the CEO directing the
Vice-Chairperson to act as the Chairperson which was already the subject
matter of pending Writ Petition No. 31113/2014. On 26.11.2014, the
appellant filed an application for bringing on record the documents to show
that he has already resumed the office as the Chairperson pursuant to the
final order dated 07.11.2014 passed by the learned Single Judge in W.P.
Nos. 30790 & 30791 of 2014 and has been functioning since 08.11.2014. He,
therefore, contended that there arise no occasion to allow anyone to resume
the post of Chairperson and secondly, no vacancy arises for the post of
Chairperson at least till the final disposal of the main election petitions
pending before the District Court.
30. The High Court, in the meantime, by order dated 28.11.2014 in W.P.
No. 36241 of 2014 suspended the proceedings dated 12.08.2014 of the CEO by
which he had directed the Vice- Chairperson to act as Chairperson, as was
already done in identical Writ Petition No. 31113/2014 by order dated
12.11.2014.
31. Against the said orders, i.e. order dated 12.11.2014 passed in
W.P.No. 31113 of 2014 and order dated 28.11.2014 passed in Writ Petition
No. 36241/2014, two writ appeals bearing W.A. Nos. 1484 and 1485 of 2014
were preferred.
32. On 01.12.2014, the appellant filed application bearing WAMP No. 3690
of 2014 in W.A. No. 1386/2014 and W.A.M.P. No. 3691 of 2014 in W.A. No.
1388 of 2014 inter alia praying for considering the additional documents in
support of his contention that there is no vacancy for the post of
Chairperson.
33. By impugned interim order dated 10.12.2014 passed in W.A.M.P. No.
3416 of 2014 in W.A. No. 1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A.
No. 1388 of 2014, the Division Bench directed the Vice-Chairperson to
discharge the functions of the Chairperson until further orders and further
restrained the respondents from filling up the vacancy of Chairperson. The
Division Bench also directed the District Judge to decide the pending
Election Petitions within three months and posted the appeals for hearing
after two months.
34. Against the aforesaid interim order, the appellant has filed these
appeals by way of special leave before this Court.
35. Mr. P.P. Rao, learned senior counsel, appearing for the appellant
while assailing the legality and correctness of the impugned order
contended that the Division Bench of the High Court erred in allowing the
interlocutory applications filed by respondent No.1 herein and giving
impugned directions. He submitted that in the light of well reasoned order
passed by the learned Single Judge allowing the writ petitions filed by the
appellant herein and keeping his disqualification of
membership/Chairpersonship under suspension till disposal of the election
petitions, both intra court appeals and applications had virtually become
infructuous and hence were liable to be dismissed as such.
36. Learned senior counsel then contended that no prima facie case was
made out for passing the impugned order because the appellant herein had
already resumed the office of the Chairperson on 08.11.2014 pursuant to the
order dated 07.11.2014 passed by the learned Single Judge.
37. Learned counsel pointed out that once the appellant resumed the post
of the Chairperson pursuant to order passed by the learned Single Judge,
the only direction that should have been given while disposing of the
appeal/application by the Division Bench was to decide the appellant's
election petitions by the Ist Additional District Judge, Ongole on merits
expeditiously.
38. Learned Counsel further contended that even assuming that the High
Court could go into the merits of the controversy, though it should not
have, yet it was the appellant who was able to make out prima facie case as
was rightly held by the learned Single Judge in his favour when he allowed
appellant's writ petition arising out of the interim order of the
Additional District Judge.
39. Referring to Rules 21 and 22, learned Counsel contended that the
alleged whips issued by the TDP in relation to the election in question
were not legal because it did not satisfy the requirements of the twin
rules. Learned Counsel while criticizing the manner in which the Division
Bench recorded certain findings against the well settled principles of law
and contended that the impugned order besides being interim in nature is
wholly legally unsustainable and hence deserves to be set aside.
40. In contra, Mr. A.K. Ganguli, learned senior counsel appearing for
respondent No.1, while supporting the impugned order contended that the
same being interim in nature, no interference is called for under Article
136 of the Constitution of India.
41. Having heard the learned Counsel for the parties and on perusal of
the record of the case and the written submissions, we find force in the
submissions of the learned senior counsel for the appellant.
42. The short question, which arises for consideration in these appeals,
is whether the Division Bench was justified in allowing the applications
filed in pending writ appeals and was, therefore, justified in issuing
mandatory directions?
43. The impugned directions read as under:
“We, therefore, direct the Vice-Chairperson, until further orders of this
Court, to discharge the functions of the Chairperson in terms of the
aforesaid legal provision. However, we restrain all the official
respondents from taking any steps or further steps to fill up the vacancy
which resulted because of the disqualification order.
It would be ideal if the District Judge decides the matter pending on
his file within three months instead of six months from the date of
communication of this order.
These two appeals will come up for hearing two months hence.
WAMPs are ordered accordingly.”
The aforementioned directions are based on following two findings recorded
by the High Court:
“We are of the opinion that until and unless the order of
disqualification is set aside, it remains operative. Unlike the Court, the
Collector has no power to grant an order of injunction. In our view, of
course, prima facie, the order of suspension of the learned Trial Judge in
the above legal and factual scenario is futile and cannot even be
implemented.”
“…..We think that some sort of workable interim order was passed
keeping in view the balance of convenience, as under the Constitution,
there is no express provision that in case of vacancy in the office of
Prime Minister, anyone will function as a Prime Minister, as a Head of the
Council of Ministers. On the contrary, on the vacancy, the entire Cabinet
would stand dissolved.”
44. In our considered opinion, the aforementioned two findings are not
legally sustainable for the reasons mentioned infra.
45. It is a well settled principle of law that the Courts are always
vested with inherent and statutory power to stay/restrain the execution of
the action impugned in the lis during pendency of the lis. These powers are
contained in Order 39 Rules 1and 2, and Order 41 Rule 5 of the Code of
Civil Procedure, 1908.
46. This Court in Mulraj vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386
had the occasion to take note of this well settled principle wherein
Justice K.N. Wanchoo speaking for the Bench explained the subtle
distinction between the grant of injunction and stay and explained the
effect of both including consequence after their termination.
47. Keeping in view this well settled principle, which we need not
elaborate herein, we are of the view that the Division Bench was not right
in observing that so long as the order of disqualification was not set
aside, it remained operative.
48. In our considered view, the Division Bench failed to see that so long
as the final adjudication is not done in accordance with law on merits in
the election petitions, the District Court was vested with the power to
pass appropriate interim orders in relation to the impugned action under
Section 22-A of the Act which reads as under:
“22-A Bar of jurisdiction: No order passed or proceedings taken under the
provisions of this Act, shall be called in question in any Court, in any
suit, or application, and no injunction shall be granted by any Court
except District Court in respect of any action taken or about to be taken
in pursuance of any power conferred by or under this Act.”
(Emphasis supplied)
49. The Division Bench also failed to appreciate that once writ petitions
filed by the appellant herein were allowed on 07.11.2014 by suspending the
proceedings dated 11.08.2014, the respondents had no option but to allow
the appellant to function as the Chairman of ZPP.
50. Similarly the Division Bench was also not right in giving an
illustration quoted above in support of the impugned order. In our opinion,
the illustration is wholly misplaced and has nothing to do with the short
question involved herein.
51. Now coming to the issue, we find that indisputably though the
District Court declined to grant any injunction to the appellant for grant
of any interim order in his favour but the learned Single Judge by order
dated 7.11.2014 in W.P.Nos. 30790 of 2014 had stayed the operation of the
disqualification order dated 11.8.2014 passed by the District Collector.
52. In our considered opinion, the effect of the suspension order dated
07.11.2014 of the learned Single Judge was that the appellant's
disqualification from the post of member of ZPTC and the Chairperson of ZPP
was kept in abeyance till the disposal of the election petitions. In other
words, no effect was to be given to the appellant's disqualification in
relation to his status as member and the Chairperson till the disposal of
the election petitions.
53. It is also not in dispute that the learned Single Judge
simultaneously in other two pending writ petitions (W.P.No.31113 of 2014
and W.P.No.36421 of 2014) by separate interim orders one dated 12.11.2014
and other dated 28.11.2014 had stayed the order dated 12.08.2014 by which
the Vice- Chairperson of the ZPP was asked to assume the charge of the post
of Chairperson and this stay was in operation.
54. In the light of these undisputed facts, we are of the view that there
was no legal impediment for the appellant to have assumed the post of the
Chairperson, ZPP, Prakasam District, which he did assume on 08.11.2014
pursuant to the order dated 07.11.2014 of the learned Single Judge. Once
the appellant assumed the office of the Chairperson, the Division Bench
should have dismissed the interlocutory applications as having rendered
infructuous because the prayer made therein, namely, to restrain the
appellant from assuming the office of the Chairperson and asking the vice-
Chairperson to assume the charge of the Chairperson was already implemented
prior to consideration of the applications and there was no apparent
justification to oust the appellant from the post of Chairperson by
another interim order.
55. In our considered opinion, the impugned order of the Division Bench
in directing removal of the appellant from the post of Chairperson and
asking the Vice-Chairperson to take over the charge of the Chairperson in
his place is not only untenable in law but also perverse.
56. Though learned senior counsel for the appellant also urged the issues
relating to legality of the whip issued by the TDP contending inter alia
that it was not in conformity with the requirements of Rules etc. but we
refrain from going into this question at this stage in these appeals for
the simple reason that these issues are sub judiced in the election
petitions and hence need to be tried by the District Judge on merits in
accordance with law as directed by the learned Single Judge vide order
dated 7.11.2014.
57. This takes us to the last submission urged by the learned senior
counsel for respondent No.1 that impugned order being interim in nature,
this Court should not interfere in the same under Article 136 of the
Constitution of India. We do not agree with this submission.
58. In our considered view, if we find that the reasoning given by the
High Court while passing the interim order is perverse and legally
unsustainable being against the settled principle of law laid down by this
Court then interference of this Court in such order is called for
regardless of the nature of the order impugned in appeal.
59. In this case, having noticed that the two reasonings extracted above
are wholly unsustainable being against the well settled principle of law,
it is necessary for this Court to interfere.
60. The fate of the appellant about his membership and Chairpersonship
would depend upon the outcome of the election petitions.
61. Let the election petitions be decided within 3 months as an outer
limit from the date of this Court.
62. In view of foregoing discussion, the appeals succeed and are
accordingly allowed. Impugned order is set aside. As a consequence, all the
pending appeals/petitions before the High Court also stand finally disposed
of in the light of this judgment because there remains nothing for the High
Court now to decide in pending appeals/writ petitions.
S.L.P.(c) Nos. 5896-5897 of 2015
In view of the detailed judgment passed in the appeals @ S.L.P.(c) Nos.
36764 of 2014 and 36773 of 2014, these special leave petitions stand
disposed of accordingly.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
September 15, 2015.
-----------------------
31
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7115 OF 2015
(ARISING OUT OF SLP (C) No. 36764/2014)
Edara Haribabu …….Appellant(s)
VERSUS
Tulluri Venkata Narasimham
& Ors. ……Respondent(s)
WITH
CIVIL APPEAL No.7116 OF 2015
(ARISING OUT OF SLP (C) No. 36773/2014)
AND
SPECIAL LEAVE PETITION (C) Nos. 5896-5897/2015
Mudavath Manthru Naik …….Petitioner(s)
VERSUS
Edara Haribabu & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
In S.L.P.(c)Nos. 36764/2014 & 36773/2014
1. Leave granted.
2. These appeals are filed against the common interim order dated
10.12.2014 passed by the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh in W.A.M.P. No. 3416 of
2014 in W.A. No.1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A. No.1388
of 2014 whereby while disposing of the applications filed in these appeals,
the High Court directed the Vice-Chairperson of Zilla Praja Parishad (in
short “ZPP”), Prakasam District, ongole to discharge the functions of the
Chairperson for the office of Zilla Praja Parishad, Prakasam District,
Ongole until further orders.
3. In order to appreciate the issue involved in these appeals, which lie
in a narrow compass, it is necessary to state a few relevant facts which
were taken from the record of the S.L.Ps.
4. The appellant is the duly elected member of Zilla Parishad
Territorial Constituency (in short “ZPTC”) of Ponnaluru Mandal, Prakasam
District. He had contested this election as a candidate of Telugu Desam
Party (in short “TDP”) for Prakasam District, Ongole. On 26.06.2014, the
Election Commission for the State of Andhra Pradesh (in short “the State
Election Commission”)-respondent No.3 herein issued orders directing
various District Collectors including the District Collector-cum-Presiding
Officer, Prakasam District (Respondent No.2 herein) to conduct election to
the office of Chairperson and Vice-Chairperson of the Zilla Praja Parishads
(in short ‘ZPP’) on 05.07.2014.
5. However, the elections to the offices of Chairperson and Vice-
Chairperson of ZPP, Prakasam District could not be held on the said date,
i.e. 05.07.2014, and were accordingly postponed to a later date.
6. On 07.07.2014, an order was issued by the District Collector,
Prakasam District (respondent No.4 herein) requesting the State Election
Commission (respondent No.3 herein) to hold the election on 13.07.2014.
7. On 09.07.2014, the State President of the TDP addressed a letter to
the State Election Commission (respondent No.3) informing that one Shri
Bonda Uma Maheswara Rao, General Secretary of the TDP, is authorized to
issue Form-A and Form-B as prescribed in Rule 22(1) of the Andhra Pradesh
Conduct of Election of Member (Co-opted), President and Vice-President of
Mandal Parishad and Members (Co-opted), Chairperson and Vice-Chairperson of
Zila Parishad Rules, 2006 (hereinafter referred to as “The Rules”) and is
also authorized to issue the appointment of whip for the said elections in
the State of Andhra Pradesh. Shri Bonda Uma Maheswara Rao then issued Form-
A dated 10.07.2014 authorizing one Shri D. Janardhana Rao, the District
President of the Prakasam District TDP to issue Form-B to the candidates
set up by the TDP in the aforesaid election insofar as ZPP, Prakasam
district was concerned and on the same day he also informed the same to the
District Collector-cum-Presiding Officer, Prakasam District, Ongole.
8. On 12.07.2014, Shri D. Janardhana Rao informed the District Collector-
cum-Presiding Officer (respondent No.2) that Shri Tulluri Venkata
Narasimham (respondent No.1) has been appointed as whip on behalf of the
TDP in relation to the election to the office of Chairperson and Vice-
Chairperson of ZPP, of Prakasam District. Shri Tulluri Venkata Narasimham
(Respondent No.1) then issued a whip on 12.07.2014 directing all the ZPTC
members belonging to the TDP to vote in favour of Shri Manne Ravindra for
the office of Chairperson. On the next day, i.e. 13.07.2014, respondent
No.1 issued another whip directing all the TDP members of the ZPTC to vote
in favour of Smt. P. Koteswaramma for the office of Vice-Chairperson.
9. According to the appellant, when the whip was issued, the appellant
was not present in Ongole but was at Hyderabad from 07.07.2014 to
12.07.2014. It was for this reason, the appellant alleged that he neither
received nor served with the copy of two whips which were alleged to have
been issued. He also alleged that his signature acknowledging receipt of
the said whips were either forged or fabricated.
10. On 13.07.2014, the said elections were conducted by the District
Collector-cum-Presiding Officer. The appellant, however, contested the
election to the office of Chairperson, ZPP, Prakasam District as an
“independent candidate” and cast his vote in his own favour and in favour
of one Shri N. Balaji, an independent candidate for the office of Vice-
Chairperson. The appellant won the election and was accordingly declared
elected as the Chairperson by one vote defeating Sri Manne Ravindra, the
candidate proposed by the TDP as a candidate to the post of Chairperson.
11. This led to filing of a complaint by Shri Tulluri Venkata Narasimham
(respondent No.1) against the appellant on 14.07.2014 before the District
Collector-cum-Presiding Officer (respondent No.2) alleging inter alia that
he was appointed as a whip by the TDP in relation to the said election held
on 13.07.2014 and that the appellant cast his vote in the said election in
violation of the whips issued by the TDP on 12.07.2014 and 13.07.2014.
12. On 16.07.2014, a show cause notice was issued to the appellant
calling upon him to show cause as to why action should not be taken against
him for violating the directions issued in the whips and why he should not
be disqualified as per G.O.Ms. No. 173 dated 10.05.2014 and Section 22(5)
of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter referred to as
“the Act”).
13. The appellant submitted his explanation on 04.08.2014 stating inter
alia that he had not violated the whips. It was also his case that he had
not received any whip and his signatures on the whips’ receipts were either
fake or fabricated by someone. He also stated that he was at Hyderabad
from 07.07.2014 to 12.07.2014 and hence did not receive the alleged whips
even if issued. He, therefore, prayed the District Collector-cum-Presiding
Officer (respondent No.2) to conduct a detailed inquiry in the matter.
14. By order dated 11.08.2014 in Rc.No. P1/4598-Indirect election/13, the
Presiding Officer & District Collector, Prakasam District, Ongole
disqualified the appellant as the member of ZPTC, Ponnaluru and directed
him to vacate the office of the Chairperson, ZPP, Prakasam Dist., Ongole.
15. On 12.08.2014, the Chief Executive Officer (in short “CEO”), ZPP,
Ongole by proceedings in Rc.No.P1/4959/2014, directed Shri N. Balaji, Vice-
Chairperson to temporarily take over the charge of the office of
Chairperson until a new Chairperson is duly elected.
16. Challenging the order dated 11.08.2014 passed by the Presiding
Officer & District Collector, Prakasam District, Ongole, the appellant
filed W.P.No. 23541 of 2014 before the High Court. Vide order dated
22.08.2014, the High Court dismissed the petition granting liberty to the
petitioner therein to approach the District Court by taking recourse to the
remedy available under Section 181-A of the Act.
17. The appellant accordingly filed E.O.P. No. 8 of 2014 and E.O.P. No. 9
of 2014 before the Ist Additional District Judge, Ongole against the order
dated 11.08.2014 passed by the Presiding Officer on the grounds pleaded
therein. He also filed I.A.Nos.1697 of 2014 in E.O.P No. 8/2014 and
I.A.No.1684 of 2014 in E.O.P No. 9/2014 to grant ad interim injunction by
suspending the order dated 11.08.2014 passed by the Presiding Officer,
Ongole in Rc. No. P1/4598-Indirect Election/B. By orders dated 07.10.2014,
the Ist Additional District Judge dismissed the said I.As. and declined to
grant injunction prayed by the appellant.
18. Questioning the order dated 07.10.2014 passed by the Ist Additional
District Judge, Ongole, in I.A. No. 1697 of 2014 in E.O.P. No. 8 of 2014 &
I.A.No. 1684 of 2014 in E.O.P. No. 9 of 2014, the appellant filed W.P. Nos.
30790 and 30791 of 2014 before the High Court of Judicature at Hyderabad
for the State of Telangana and the State of Andhra Pradesh.
19. In view of the disqualification of the appellant herein, a
representation was submitted by Mr. Garinipudi Steeven & 24 others on
28.08.2014 to the State Election Commission and the District Collector-cum-
Presiding Officer for conducting fresh elections. Since the said
application was not being considered by the State Election Commission, the
abovesaid petitioners filed W.P. No. 30799 of 2014 before the High Court.
20. The learned Single Judge of the High Court heard W.P.Nos. 30790,
30791 and 30799 of 2014 together and by common order dated 07.11.2014,
allowed W.P. Nos. 39790 and 30791 of 2014 filed by the appellant herein
and quashed the order dated 07.10.2014 passed by the Ist Additional
District Judge. The learned Single Judge then suspended the proceedings
dated 11.08.2014 by which the appellant was disqualified as ZPTC member and
consequently as Chairperson of ZPP. So far as W.P. No.30799 of 2014, which
was filed for conducting fresh election in view of the disqualification of
the appellant herein, was concerned, it was dismissed.
21. On 08.11.2014, the appellant addressed a letter to the CEO, ZPPs,
Prakasam District, Ongole informing him that the order dated 11.08.2014
passed by the District Collector-cum-Presiding Officer, Prakasam District
regarding disqualification of his membership as ZPTC and also Chairperson
of ZPP was suspended vide order dated 07.11.2014 passed by the learned
Single Judge of the High Court in W.P. Nos. 39790 and 30791 of 2014 and
hence the appellant be allowed to resume the office of the Chairperson,
ZPP. Prakasam District.
22. The appellant accordingly on 08.11.2014 resumed the office of
Chairperson and took over the charge of the office of the Chairperson, ZPP,
Prakasam District and started conducting various meetings and took various
decisions.
23. To complete the narration of the facts, it may here be mentioned that
one Rajendra Prasad, felt aggrieved of the order dated 12.08.2014 passed by
the CEO in Rc.No.P1/4959/2014, by which Mr. N. Balaji Vice-Chairperson was
temporarily allowed to take over the charge of the office of Chairperson
consequent upon declaration of appellant’s disqualification for the post of
Chairperson and filed a writ petition bearing W.P.No.31113 of 2014 before
the High Court.
24. Vide order dated 12.11.2014, the learned Single Judge of the High
Court allowed W.P.No.31113 of 2014 filed by M.Rajendra Prasad and suspended
the proceedings dated 12.08.2014 subject to further orders.
25. In the meantime, Shri Tulluri Venkata Narasimham- respondent No.1
herein filed W.A.M.P. No. 3416 of 2014 in W.A.No. 1386 of 2014 and
W.A.M.P. No. 3418 of 2014 in W.A. No. 1388 of 2014 before the High Court
challenging the order dated 07.11.2014 passed by the learned Single Judge.
26. On 12.11.2014, the Chief Executive Officer (CEO), ZPP addressed a
letter in Rc. No.P1/4598/High Court Cases/2013 to the Commissioner,
Panchayat Raj & Rural Development stating that pursuant to the order dated
07.11.2014 passed by the High Court, the appellant has resumed the office
of the Chairperson, ZPP, Prakasam District on 08.11.2014. However,
respondent No.1, on his part informed that he had preferred an appeal
against the order dated 07.11.2014 before the High Court. Though there
was no interim order passed in the writ appeals filed by respondent No.1
herein before the High Court yet the CEO sought clarifications from the
Commissioner on this issue as to what should be done in the case.
27. On 13.11.2014, the appellant, was constrained to send a legal notice
to the CEO to ensure compliance of the order dated 07.11.2014 passed by the
learned Single Judge and co-operate with the appellant to enable him to
discharge the duties as Chairperson and forthwith withdraw the
clarification letter dated 12.11.2014 sent by him to the Commissioner,
which according to appellant was not at all necessary.
28. On 14.11.2014, the appellant also addressed a letter to the
Commissioner against the CEO and Dy. C.E.O. and requested him to take
disciplinary action against them. By letter dated 15.11.2014, the
Commissioner informed to the Secretary to the Government that the appellant
has resumed the office of the Chairperson from 08.11.2014.
29. On 25.11.2014, one Shri Lakshminarayana filed W.P. No. 36421 of 2014
seeking suspension of proceedings dated 12.08.2014 of the CEO directing the
Vice-Chairperson to act as the Chairperson which was already the subject
matter of pending Writ Petition No. 31113/2014. On 26.11.2014, the
appellant filed an application for bringing on record the documents to show
that he has already resumed the office as the Chairperson pursuant to the
final order dated 07.11.2014 passed by the learned Single Judge in W.P.
Nos. 30790 & 30791 of 2014 and has been functioning since 08.11.2014. He,
therefore, contended that there arise no occasion to allow anyone to resume
the post of Chairperson and secondly, no vacancy arises for the post of
Chairperson at least till the final disposal of the main election petitions
pending before the District Court.
30. The High Court, in the meantime, by order dated 28.11.2014 in W.P.
No. 36241 of 2014 suspended the proceedings dated 12.08.2014 of the CEO by
which he had directed the Vice- Chairperson to act as Chairperson, as was
already done in identical Writ Petition No. 31113/2014 by order dated
12.11.2014.
31. Against the said orders, i.e. order dated 12.11.2014 passed in
W.P.No. 31113 of 2014 and order dated 28.11.2014 passed in Writ Petition
No. 36241/2014, two writ appeals bearing W.A. Nos. 1484 and 1485 of 2014
were preferred.
32. On 01.12.2014, the appellant filed application bearing WAMP No. 3690
of 2014 in W.A. No. 1386/2014 and W.A.M.P. No. 3691 of 2014 in W.A. No.
1388 of 2014 inter alia praying for considering the additional documents in
support of his contention that there is no vacancy for the post of
Chairperson.
33. By impugned interim order dated 10.12.2014 passed in W.A.M.P. No.
3416 of 2014 in W.A. No. 1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A.
No. 1388 of 2014, the Division Bench directed the Vice-Chairperson to
discharge the functions of the Chairperson until further orders and further
restrained the respondents from filling up the vacancy of Chairperson. The
Division Bench also directed the District Judge to decide the pending
Election Petitions within three months and posted the appeals for hearing
after two months.
34. Against the aforesaid interim order, the appellant has filed these
appeals by way of special leave before this Court.
35. Mr. P.P. Rao, learned senior counsel, appearing for the appellant
while assailing the legality and correctness of the impugned order
contended that the Division Bench of the High Court erred in allowing the
interlocutory applications filed by respondent No.1 herein and giving
impugned directions. He submitted that in the light of well reasoned order
passed by the learned Single Judge allowing the writ petitions filed by the
appellant herein and keeping his disqualification of
membership/Chairpersonship under suspension till disposal of the election
petitions, both intra court appeals and applications had virtually become
infructuous and hence were liable to be dismissed as such.
36. Learned senior counsel then contended that no prima facie case was
made out for passing the impugned order because the appellant herein had
already resumed the office of the Chairperson on 08.11.2014 pursuant to the
order dated 07.11.2014 passed by the learned Single Judge.
37. Learned counsel pointed out that once the appellant resumed the post
of the Chairperson pursuant to order passed by the learned Single Judge,
the only direction that should have been given while disposing of the
appeal/application by the Division Bench was to decide the appellant's
election petitions by the Ist Additional District Judge, Ongole on merits
expeditiously.
38. Learned Counsel further contended that even assuming that the High
Court could go into the merits of the controversy, though it should not
have, yet it was the appellant who was able to make out prima facie case as
was rightly held by the learned Single Judge in his favour when he allowed
appellant's writ petition arising out of the interim order of the
Additional District Judge.
39. Referring to Rules 21 and 22, learned Counsel contended that the
alleged whips issued by the TDP in relation to the election in question
were not legal because it did not satisfy the requirements of the twin
rules. Learned Counsel while criticizing the manner in which the Division
Bench recorded certain findings against the well settled principles of law
and contended that the impugned order besides being interim in nature is
wholly legally unsustainable and hence deserves to be set aside.
40. In contra, Mr. A.K. Ganguli, learned senior counsel appearing for
respondent No.1, while supporting the impugned order contended that the
same being interim in nature, no interference is called for under Article
136 of the Constitution of India.
41. Having heard the learned Counsel for the parties and on perusal of
the record of the case and the written submissions, we find force in the
submissions of the learned senior counsel for the appellant.
42. The short question, which arises for consideration in these appeals,
is whether the Division Bench was justified in allowing the applications
filed in pending writ appeals and was, therefore, justified in issuing
mandatory directions?
43. The impugned directions read as under:
“We, therefore, direct the Vice-Chairperson, until further orders of this
Court, to discharge the functions of the Chairperson in terms of the
aforesaid legal provision. However, we restrain all the official
respondents from taking any steps or further steps to fill up the vacancy
which resulted because of the disqualification order.
It would be ideal if the District Judge decides the matter pending on
his file within three months instead of six months from the date of
communication of this order.
These two appeals will come up for hearing two months hence.
WAMPs are ordered accordingly.”
The aforementioned directions are based on following two findings recorded
by the High Court:
“We are of the opinion that until and unless the order of
disqualification is set aside, it remains operative. Unlike the Court, the
Collector has no power to grant an order of injunction. In our view, of
course, prima facie, the order of suspension of the learned Trial Judge in
the above legal and factual scenario is futile and cannot even be
implemented.”
“…..We think that some sort of workable interim order was passed
keeping in view the balance of convenience, as under the Constitution,
there is no express provision that in case of vacancy in the office of
Prime Minister, anyone will function as a Prime Minister, as a Head of the
Council of Ministers. On the contrary, on the vacancy, the entire Cabinet
would stand dissolved.”
44. In our considered opinion, the aforementioned two findings are not
legally sustainable for the reasons mentioned infra.
45. It is a well settled principle of law that the Courts are always
vested with inherent and statutory power to stay/restrain the execution of
the action impugned in the lis during pendency of the lis. These powers are
contained in Order 39 Rules 1and 2, and Order 41 Rule 5 of the Code of
Civil Procedure, 1908.
46. This Court in Mulraj vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386
had the occasion to take note of this well settled principle wherein
Justice K.N. Wanchoo speaking for the Bench explained the subtle
distinction between the grant of injunction and stay and explained the
effect of both including consequence after their termination.
47. Keeping in view this well settled principle, which we need not
elaborate herein, we are of the view that the Division Bench was not right
in observing that so long as the order of disqualification was not set
aside, it remained operative.
48. In our considered view, the Division Bench failed to see that so long
as the final adjudication is not done in accordance with law on merits in
the election petitions, the District Court was vested with the power to
pass appropriate interim orders in relation to the impugned action under
Section 22-A of the Act which reads as under:
“22-A Bar of jurisdiction: No order passed or proceedings taken under the
provisions of this Act, shall be called in question in any Court, in any
suit, or application, and no injunction shall be granted by any Court
except District Court in respect of any action taken or about to be taken
in pursuance of any power conferred by or under this Act.”
(Emphasis supplied)
49. The Division Bench also failed to appreciate that once writ petitions
filed by the appellant herein were allowed on 07.11.2014 by suspending the
proceedings dated 11.08.2014, the respondents had no option but to allow
the appellant to function as the Chairman of ZPP.
50. Similarly the Division Bench was also not right in giving an
illustration quoted above in support of the impugned order. In our opinion,
the illustration is wholly misplaced and has nothing to do with the short
question involved herein.
51. Now coming to the issue, we find that indisputably though the
District Court declined to grant any injunction to the appellant for grant
of any interim order in his favour but the learned Single Judge by order
dated 7.11.2014 in W.P.Nos. 30790 of 2014 had stayed the operation of the
disqualification order dated 11.8.2014 passed by the District Collector.
52. In our considered opinion, the effect of the suspension order dated
07.11.2014 of the learned Single Judge was that the appellant's
disqualification from the post of member of ZPTC and the Chairperson of ZPP
was kept in abeyance till the disposal of the election petitions. In other
words, no effect was to be given to the appellant's disqualification in
relation to his status as member and the Chairperson till the disposal of
the election petitions.
53. It is also not in dispute that the learned Single Judge
simultaneously in other two pending writ petitions (W.P.No.31113 of 2014
and W.P.No.36421 of 2014) by separate interim orders one dated 12.11.2014
and other dated 28.11.2014 had stayed the order dated 12.08.2014 by which
the Vice- Chairperson of the ZPP was asked to assume the charge of the post
of Chairperson and this stay was in operation.
54. In the light of these undisputed facts, we are of the view that there
was no legal impediment for the appellant to have assumed the post of the
Chairperson, ZPP, Prakasam District, which he did assume on 08.11.2014
pursuant to the order dated 07.11.2014 of the learned Single Judge. Once
the appellant assumed the office of the Chairperson, the Division Bench
should have dismissed the interlocutory applications as having rendered
infructuous because the prayer made therein, namely, to restrain the
appellant from assuming the office of the Chairperson and asking the vice-
Chairperson to assume the charge of the Chairperson was already implemented
prior to consideration of the applications and there was no apparent
justification to oust the appellant from the post of Chairperson by
another interim order.
55. In our considered opinion, the impugned order of the Division Bench
in directing removal of the appellant from the post of Chairperson and
asking the Vice-Chairperson to take over the charge of the Chairperson in
his place is not only untenable in law but also perverse.
56. Though learned senior counsel for the appellant also urged the issues
relating to legality of the whip issued by the TDP contending inter alia
that it was not in conformity with the requirements of Rules etc. but we
refrain from going into this question at this stage in these appeals for
the simple reason that these issues are sub judiced in the election
petitions and hence need to be tried by the District Judge on merits in
accordance with law as directed by the learned Single Judge vide order
dated 7.11.2014.
57. This takes us to the last submission urged by the learned senior
counsel for respondent No.1 that impugned order being interim in nature,
this Court should not interfere in the same under Article 136 of the
Constitution of India. We do not agree with this submission.
58. In our considered view, if we find that the reasoning given by the
High Court while passing the interim order is perverse and legally
unsustainable being against the settled principle of law laid down by this
Court then interference of this Court in such order is called for
regardless of the nature of the order impugned in appeal.
59. In this case, having noticed that the two reasonings extracted above
are wholly unsustainable being against the well settled principle of law,
it is necessary for this Court to interfere.
60. The fate of the appellant about his membership and Chairpersonship
would depend upon the outcome of the election petitions.
61. Let the election petitions be decided within 3 months as an outer
limit from the date of this Court.
62. In view of foregoing discussion, the appeals succeed and are
accordingly allowed. Impugned order is set aside. As a consequence, all the
pending appeals/petitions before the High Court also stand finally disposed
of in the light of this judgment because there remains nothing for the High
Court now to decide in pending appeals/writ petitions.
S.L.P.(c) Nos. 5896-5897 of 2015
In view of the detailed judgment passed in the appeals @ S.L.P.(c) Nos.
36764 of 2014 and 36773 of 2014, these special leave petitions stand
disposed of accordingly.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
September 15, 2015.
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