TMI Blog2014 (12) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... erverse. We also do not agree with contention of Counsel for 3rd respondent that in his explanations dt.04 -08 -2014 to the show cause notice dt.28 -07 -2014 issued by the 1st respondent, the petitioner had not raised the plea that his signatures were forged on the acknowledgments of the whips. The petitioner had clearly stated that he was not in Ongole town on 12.7.2014 and there was no possibility for him to sign the alleged whips. Thus petitioner has implied that his signatures were forged on acknowledgements. I do no agree with plea of 3rd respondent that a reading of the explanations of petitioner suggest that the petitioner is implying that blank whip forms on which his signatures were obtained for the election scheduled on 05 -07 -2014 and which later got postponed to 13 -07 -2014 were misused by filling them up. I have read the explanations and it does not appear to be so. When the petitioner had disputed his signatures on the acknowledgments of whips and contended that they are forged and the whips are fabricated, by wrongly placing the burden of proof on the petitioner to prove that he did not sign the whips, the District Court appears to have come to a wrong conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asam District on the ground that he had disobeyed the directions of the Telugu Desam Party whip in relation to the election for the offices of the Chairperson and Vice - Chairperson, Zilla Praja Parishad, Prakasam District held on 13 -07 -2014 and for not voting in favour of Sri Manne Ravindra, the candidate proposed by the said party for the office of Chairperson and Smt.P.Koteswaramma for the office of Vice -chairperson. He filed E.O.P.No.8 of 2014 before the I Additional District Judge, Ongole (for short the District Court) challenging the order dt.11 -8 -2014 of 1st respondent invoking Section 181 -A of the AP Panchayat Raj Act, 1994 (for short the Act) in so far as disqualification incurred by him for not voting in favor of Sri Manne Ravindra for office of Chairperson is concerned. He also filed E.O.P.No.9 of 2014 before the I Additional District Judge, Ongole challenging the order dt.11 -8 -2014 of 1st respondent invoking Section 181 -A of the AP Panchayat Raj Act, 1994 (for short the Act) in so far his disqualification for not voting in favor of Smt.P.Koteswaramma for office of Vice - Chairperson is concerned. ( 4. ) In the said E.O.P.8/2014 and E.O.P.No.9/2014, he fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned. ( 14. ) Bonda Uma Maheswara Rao informed 1st respondent vide Annexures -I dt.10 -07 -2014 that the TDP party is authorizing D.Janardhana Rao (District President) to appoint a whip on behalf of that party in relation to the aforesaid elections. ( 15. ) On 12 -07 -2014, D.Janardhana Rao informed 1st respondent in Annexures -II dt.12 -07 -2014 that 3rd respondent is appointed as whip on behalf of TDP party in relation to the aforesaid elections. ( 16. ) The 3rd respondent allegedly issued a whip dt.12 -07 -2014 directing all ZPTC Members belonging to TDP party to vote in favour of Sri Manne Ravindra for office of Chairperson and another whip dt.13.7.2014 to vote in favor of Smt.P Koteswramma for office of Vice -Chairperson in the aforesaid election proposed to be held on 13 -07 -2014. ( 17. ) It is the case of the petitioner that he was not in Ongole at that time and he did not receive it and it was not served on him. It is also his case that his signature acknowledging receipt of the said whips is either forged or the said whips were fabricated. ( 18. ) D .Janardhan Rao issued Form -B dt.13 -07 -2014 setting up Sri Manne Ravindra as TDP partys candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gole town on 12 -07 -2014 and there was no possibility for him to receive the alleged whips at Ongole on 12 -7 -2014. He also referred to an incident on 4 -7 -2014 where his signatures were allegedly obtained on 04 -07 -2014 on blank whip papers by TDP party functionaries in respect of the aforesaid elections which were scheduled on 05 -07 -2014 and stated that on that day he was informed that the names of the candidates proposed by the Party for the office of Chairperson and Vice Chairperson for Prakasam ZPP were not yet decided; he was told that that he would be informed about the full particulars of the said whip on 05 -07 -2014 well before commencement of the swearing ceremony of ZPTC Members, by duly serving the fully filled up whip copy on which his signatures were obtained; that his signatures were taken in advance on 04 -07 -2014 to save time; the said whips do not attain validity without furnishing of material details therein; since the meeting on 05 -07 -2014 did commence but the election did not take place, whips got annulled; and since fresh notification was issued on 07 -07 -2014 to hold another meeting on 13 -07 -2014, his signatures on the whip for election on 05 -07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .As. ( 25. ) It rejected the submission of the petitioner that under Rule 22(1) (4) of the Rules relating to conduct of elections of Member (Co -opted) and President/Vice President of Mandal Parishad and Member (Co -opted) and Chairperson and Vice Chairperson of Zilla Praja Parishad framed under G.O.Ms.No.173, Panchayat Raj and Rural Development (Elections) Department dt.10 -05 -2006 (hereinafter referred to as Rules), there cannot be further delegation of the power to issue whip; hence the intimation by the TDP party to the 1st respondent about the person authorized to appoint whip (Annexure -I) (whereunder Bonda Uma Maheswara Rao, State General Secretary of the said party authorized D.Janardhana Rao, District President and M.L.A., Ongole to appoint whip)(marked as Ex.X -1 before the District Court) and the intimation by the said party about the persons appointed as whip (Annexure -II) (whereunder Sri D.Janardhana Rao, District President, Prakasam District appointed 3rd respondent as the whip for the said party) for the election to Chairperson/Vice Chairperson of ZPP, Prakasam District (marked as Ex.X -1 before the District Court), are binding on him. It held that whip issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circular No.1377/SEC -B1/2014 dt.21 -05 -2014 containing procedural instructions with regard to holding of special meeting for conduct of elections to the above offices. Para -III (1) thereof, he contended, empowers the State President of a recognized political party to authorize a party functionary at local level/District level in Annexure -I to appoint a whip for the ZPPs or directly appoint a whip in Annexure -II; and Para -III (5) makes appointment of a whip valid only if the State President or a person authorized by him intimates the name of the whip to the Presiding Officer; and in the present case Ex.B -14 intimation was given by the State President of the TDP party on 09 -07 -2014 to the State Election Commission authorizing Sri Bonda Uma Maheswara Rao, State General Secretary to issue Form -A and B and also authorized him to appoint whips for the elections mentioned to offices of Chairperson/Vice Chairperson of ZPPs etc. in Andhra Pradesh State; that this intimation of the State President cannot be equated with intimation of appointment made by political party; that Bonda Uma Maheswara Rao issued Annexure -I intimations dt.10 -07 -2014 to 1st respondent informing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seal of the Ongole District Office. He therefore contended that this is impermissible and both Ex.B1 and Ex.B2 are null and void. ( 30. ) He relied on Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another, 2014 5 SCC 312 and contended that statutory requirements relating to election law have to be strictly adhered to; all the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process; and the Courts have a duty to enforce the same with all rigours and not to minimize their operation. He relied upon S.Jyothi Vs. Presiding Officer/Election Officer, Thottambedu Mandal, Chittoor District and Others, 2002 4 ALD 660 and contended that provisions of sub -rule (6) of Rule 13 of the Rules relating to A.P. Conduct of Elections of Member (Co -opted), President/Vice President of Mandal Parishad and Member (Co -opted) Chairman and Vice Chairman of Zilla Parishad Rules, 1992 which are in pari materia with Rule 22 were held to be mandatory by this Court, that non -compliance with Rule 22 by the TDP party voids the appointment of whip and its intimation and it has to be treated as if there is no whip valid in law which co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a whip and the intimation of the whip was not validly given to the 1st respondent, even if such whip is served it is void; this aspect was not gone into by the trial court; thus there is error apparent on the face of record; law mandates that election of a candidate cannot be lightly interfered with (Sadashiv H. Patil Vs. Vithal D.Teke and others, 2000 8 SCC 82); and so balance of convenience lies in favour of the petitioner and irreparable injury would be caused to him if this Court does not interfere with the impugned order in exercise of its jurisdiction under Article 226 of the Constitution of India. He relied upon Surya Dev Rai vs. Ram Chander Rai and others, 2003 6 SCC 675. ( 35. ) He contended that even though I.As. in the E.O.Ps were filed under Order 39 Rules 1 and 2 r/w Section 151 CPC, on the dismissal of the I.As, the petitioner cannot file an appeal under Order 43 Rule 1 r/w Section 104 CPC and that he has no choice but to approach this Court under Article 226 of the Constitution of India. He relied upon a Full Bench decision in G.V.Ranga Rao and another Vs. A.P. State Electricity Board Engineers Association and Another, 2001 5 ALT 553 where a Full Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not appointed the whip for the subject elections or communicated the same to 1st respondent, and their delegate the District President D.Janardhan Rao did so, there is nothing wrong; and the appointment of 3rd respondent as the whip for the subject elections and the communication/intimation thereof by D.Janardhan Rao are valid and the whip issued by 3rd respondent binds the petitioner. ( 38. ) He relied upon Radhey Shyam and another Vs. Chhabi Nath and others, 2009 5 SCC 616 and Guntur United Cricket Club, Guntur and another Vs. III Additional District Court, Guntur and others, 2010 4 ALD 646 and contended that in the former case the Supreme Court had doubted the correctness of the law laid down in Surya Dev Rai (6 supra) and referred the matter to a larger Bench on the issue of interference under Article 226 of the Constitution with a judicial order passed by a Court of competent jurisdiction in a property suit where all parties are private parties and that the decision in Radhey Shyam (8 supra) was followed in Guntur United Cricket Club (9 supra) by referring to the decision in Naresh Sridhar Mirajkar Vs. State of Maharastra, 1967 AIR(SC) 1; and therefore, this Court oug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety could be got resolved by any member of the society filing an application under Section 11 of the said Act in the District Court concerned and the said Court was empowered to pass such order as it deems fit after necessary enquiry. No appeal was provided in the said Act also like in the AP Panchayat Raj Act, 1994 either from an interlocutory order or from a final order passed in the proceedings. A question arose whether an order of the District Court in an interlocutory proceeding under AP (Telangana Area) Public Societies Registration Act, 1350 Fasli rejecting an application for interim injunction filed under Order 39 Rules 1 and 2 read with Section 151 CPC restraining the opposite party from conducting election scheduled on a particular date by an association registered under the said Act, could be appealed against, invoking Order 43 Rule 1 CPC read with Section 104 CPC. A Full Bench of this Court in G.V.Ranga Rao (7 supra) held that no appeal is provided under the provisions of the said Act against orders of this nature; that provisions of CPC were also not made applicable specifically in relation to the proceedings under the Act; the District Court, while adjudicating on an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of Certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. ( 49. ) IN State of A.P. v. P.V. Hanumantha Rao, 2003 10 SCC 121, the Supreme Court reiterated: 32. This Court has recognised the right of the High Court to interfere with orders of subordinate courts and tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby. 33. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surya Dev Rai). ( 51. ) No doubt in Radhe Shyam (8 supra), another Two Judge Bench of the Supreme Court doubted the correctness of the proposition laid down in Surya Dev Rai (6 supra) that judicial orders passed by Civil Court can be examined and corrected/reversed by Writ of Certiorari and the issue was referred to a Larger Bench in para 33 thereof, but the judgment in Surya Dev Rai (6 supra) continues to hold the field and has not been reversed or overruled since by any Larger Bench of the Supreme Court. ( 52. ) However a Division Bench of this Court in Guntur United Cricket Club, Guntur (9 supra), followed the decision in Radhe Shyam (8 supra) and held that a Writ petition does not lie for setting aside a judicial order passed by a Civil Court stating that in Surya Dev Rai (6 supra), the judgment of the Nine Judge Bench of the Supreme Court in Mirajkar (10 supra) (which held that Certiorari does not lie to quash judgment of inferior Court at Civil jurisdiction) was not considered by the Bench which decided Surya Dev Rai (6 supra). This statement in Guntur Cricket Club (9 supra) is incorrect as the above quoted portion in Mirajkar (10 supra) was considered at para 16 in Sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/findings hereinafter given would be only prima facie and not conclusive and it will always be open to the District Court to finally dispose of the matter after trial uninfluenced by this judgment. ( 59. ) First , I will consider the question whether Rule 21 and 22 of the rules are mandatory or directory. ( 60. ) In my opinion, Rule 22 has to be considered to be mandatory in view of the law declared in Arikala Narsa Reddy (1 supra) by the Supreme Court that statutory requirements relating to election law have to be strictly adhered to and all technicalities prescribed/mandated in election law have to be enforced by the Courts with all rigours and the Courts cannot minimize their operation. ( 61. ) A provision in pari materia to Rule 22 i.e. Rule 13 (6) of the A.P. Conduct of Elections of Member (Co -opted) President/Vice President of Mandal Parishad and Member (Co -opted) Chairman and Vice Chairman of Zilla Parishad Rules, 1994 has been held to be mandatory by a Division Bench of this Court in S.Jyothi (2 supra). In that case, it was held that as per Rule 13 (6), whips should be appointed by the political party only and intimation of that appointment may be communicated e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment of whip for the elections to posts of Chairperson/Vice Chairperson of ZPP in the State of Andhra Pradesh; the State General Secretary gave intimation in Annexure -I dt.10 -07 -2014 (Ex.B -2 dt.10 -07 -2014) to the 1st respondent authorizing Sri D.Janardhana Rao, District Party President, Prakasam District to appoint whip for ZPP, Prakasam District; Sri D.Janardhan Rao, The District President, Prakasam District appointed the 3rd respondent as whip for the said elections and intimated the same to the 1st respondent vide Annexure - II ( Ex.B -2 dt.12 -07 -2014). He also issued Form -B for proposing the name of Sri Manne Ravindra for the post of Chairperson of ZPP, Prakasam District (Ex.B -1 dt.13.7.2014) and issued another Form -B proposing the name of Smt.P.Koteswaramma for the office of Vice Chairperson and communicated the same to the 1st respondent (Ex.B -4 dt.13.7.2014). Annexures -I and II referred to above as well as the Forms -B bear only the signature of the District President, Prakasam District of the TDP party and bear his seal and do not bear the seal and signature of the State president or his authorized representative Sri Bonda Uma Maheswara Rao. These facts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 21 and 22 at all in spite of fact that petitioner raised a contention about their non -compliance. Such disregard to mandatory statutory rules constitutes and error apparent on face of record. ( 71. ) In this view of the matter, irrespective of the service of the whip (which is also disputed by the petitioner), the petitioner cannot be said to have violated the whip and therefore prima facie, he cannot be said to have ceased to hold the office of ZPTC, Ponnalur and Chairperson of ZPP, Prakasam. ( 72. ) In R.P. Moidutty (20 supra), the Supreme Court has held that election of a successful candidate shall not be lightly interfered with. It observed : 14. It is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the hustings must prevail and be respected by the courts and that is why the election of a successful candidate is not to be set aside lightly. A heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people is one as has been truly, freely and purely exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairperson/Vice Chairperson to the ZPP, Prakasam District and therefore the petitioner is deemed to have constructive knowledge of the whip. A reading of these two news items shows that there is no mention of issuance of a whip by the TDP party directing to vote in favour of any candidate in the said election. In this view of the matter, it has to be held that this finding of the District Court is based on no evidence/deliberate misreading of evidence and perverse. ( 76. ) I also do not agree with contention of Counsel for 3rd respondent that in his explanations dt.04 -08 -2014 to the show cause notice dt.28 -07 -2014 issued by the 1st respondent, the petitioner had not raised the plea that his signatures were forged on the acknowledgments of the whips. The petitioner had clearly stated that he was not in Ongole town on 12.7.2014 and there was no possibility for him to sign the alleged whips. Thus petitioner has implied that his signatures were forged on acknowledgements. I do no agree with plea of 3rd respondent that a reading of the explanations of petitioner suggest that the petitioner is implying that blank whip forms on which his signatures were obtained for the election s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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