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2014 DIGILAW 1499 (AP)

Tulluri Venkata Narasimha v. Edara Haribabu

2014-12-10

KALYAN JYOTI SENGUPTA, SANJAY KUMAR

body2014
ORDER 1. The appeals are admitted for hearing. 2. Now, the learned counsel are heard on the question of granting interim relief. 3. Mr. S. Ravi, the learned Senior Counsel appearing in Writ Appeal Nos. 1386 and 1388 of 2014 prays for stay of further operation of the judgment and order of the Hon'ble trial Judge dated 7.11.2014 in Writ Petition Nos. 30790, 30791 and 30799 of 2014. 4. Before we consider the respective submissions of the learned counsel appearing for the parties in the hearing of the applications for interim relief, brief admitted facts that led to filing of the above writ petitions, consequently preferring appeals before us, are stated hereunder. 5. The writ petitioner, Edara Hari Babu, in W.P. No. 30790 of 2014 and W.P. No. 30791 of 2014, who is the 1st respondent in Writ Appeal Nos. 1386 and 1388 of 2014, was disqualified by separate orders dated 11.8.2014 passed by the District Collector-cum-Presiding Officer, Ongole, Prakasam District as Member of the Zilla Parishad Territorial Constituency (hereinafter referred to as 'ZPTC'), Ponnalur Mandal, consequently as Chairperson of the Zilla Parishad, Prakasam District, on the ground that he had disobeyed the directions of the Telugu Desam Party whip in relation to election to the office of the Chairperson and Vice Chairperson, Zilla Praza Parishad, Prakasam District, held on 13.7.2014 and for not voting in favour of one Sri Manne Ravindra, the candidate proposed by the said party for the office of Chairperson, and one Smt. P. Koteswaramma for the office of Vice Chairperson. He thence filed Election Original Petition (E.O.P.) No. 8 of 2014 before the I-Additional District Judge, Ongole, Prakasam District, challenging the above orders dated 11.8.2014 of the District Collector, being the 1st respondent in the writ petitions, invoking Section 181A of the A.P. Panchayat Raj Act, 1994, as regards the disqualification incurred by him for not voting in favour of Sri Manne Ravindra for the office of Chairperson. He also filed E.O.P. No. 9 of 2014 before the I-Additional District Judge, Ongole, challenging the order dated 11.8.2014 of the 1st respondent therein invoking Section 181A of the A.P. Panchayat Raj Act, 1994 insofar as the disqualification for not voting in favour of P. Koteswaramma for the office of Vice Chairperson is concerned. 6. He also filed E.O.P. No. 9 of 2014 before the I-Additional District Judge, Ongole, challenging the order dated 11.8.2014 of the 1st respondent therein invoking Section 181A of the A.P. Panchayat Raj Act, 1994 insofar as the disqualification for not voting in favour of P. Koteswaramma for the office of Vice Chairperson is concerned. 6. In both the aforesaid EOPs, he filed interlocutory applications invoking the jurisdiction under Order 39 Rules 1 and 2 of C.P.C. read with Section151 of the Code of Civil Procedure to grant ad interim suspension of the orders dated 11.8.2014 passed by the 1st respondent, pending disposal of the main cases. 7. It has to be recorded that there was no ex parte ad-interim order of injunction, however the learned District Judge by order dated 7.10.2014 dismissed the above Interlocutory Applications. Questioning the same, he filed W.P. Nos. 30790 and 30791 of 2014. However, the other writ petition, being W.P. No. 30799 of 2014, was filed consequent upon the orders of disqualification by some other parties for taking action for filling up the vacancy. 8. The learned trial Judge allowed the writ petitions and set aside the order of the learned District Judge, who refused to grant interim relief and His Lordship granted an order of suspension of the order of the District Collector disqualifying the writ petitioner. 9. Mr. S. Ravi, learned Senior Counsel appearing for the appellant, submits that the order passed by the learned trial Judge, which is under appeal is ineffective on fact and in law. 10. According to him, under the provisions of sub-sections (3) and (4) of Section 193 of the A.P. Panchayat Raj Act, 1994 (hereinafter referred to as 'Act, 1994'), when the office of the Chairperson is vacant, the Vice-Chairperson of the Zilla Parishad shall exercise the powers and perform the functions of the Chairperson until a new Chairperson is elected. 11. In this case, the moment the order of the District Collector is passed and it becomes operative, automatically on the following day under the aforesaid legal provision, the Vice-Chairperson has to take over the functions of the Chairperson. Admittedly, till the Hon'ble trial Judge passed the impugned order, there was no interim suspension. Hence the Vice-Chairperson has to act in his absence. In fact, he had started functioning by a Government Order. Admittedly, till the Hon'ble trial Judge passed the impugned order, there was no interim suspension. Hence the Vice-Chairperson has to act in his absence. In fact, he had started functioning by a Government Order. The learned trial Judge has not set aside the said Government Order asking the Vice-Chairperson to act as the Chairperson, nor has the Hon'ble trial Judge passed a mandatory injunction allowing the writ petitioner to resume the functions of the Chairperson. However, the writ petitioner, taking advantage of the order of suspension granted by the Hon'ble High Court, is insisting and threatening to forcibly and illegally resume the office of the Chairperson. 12. Mr. C.V. Mohan Reddy, learned Senior Counsel appearing for the writ petitioner, submits that factually after the aforesaid order of suspension has been passed, his client is going to the office of the Chairperson. With the support of the Supreme Court judgment in the case of Indira Nehru Gandhi vs. Raj Narain, (1975) 2 SCC 159 , he contends that the moment the order of disqualification is suspended, legally and logically, he is entitled to resume functioning not only as a member but also as the Chairperson. Therefore, till the disposal of the appeals, since the Hon'ble trial Judge has suspended the order, his client should be allowed to function. 13. The learned counsel for the Collector appears and while placing the communication from his client submits that since the date of disqualification order, Sri Nukasani Balaji, Vice-Chairperson, in terms of sub-section (3) of Section 193 of the Act, 1994, is functioning as the Chairperson. 14. We have heard the respective contentions of the learned counsel for the parties. 15. It is the admitted position that from the date of the order of disqualification till the order was passed by the Hon'ble trial Judge, the writ petitioner was not in office as the Chairperson. 16. We find substance in the submission of Mr. S. Ravi, learned Senior Counsel for the appellant, that by virtue of sub-section (3) of Section 193 of Act, 1994, the Vice-Chairperson has to assume and discharge the functions of the Chairperson. We, therefore, set out the relevant portion of sub-section (3) of Section 193 of the A.P. Panchayat Raj Act, 1994. 193. S. Ravi, learned Senior Counsel for the appellant, that by virtue of sub-section (3) of Section 193 of Act, 1994, the Vice-Chairperson has to assume and discharge the functions of the Chairperson. We, therefore, set out the relevant portion of sub-section (3) of Section 193 of the A.P. Panchayat Raj Act, 1994. 193. Powers and functions of the Chairperson and Vice-Chairperson of the Zilla Parishad:- (1)……………… (2)……………… (3) When the office of the Chairperson is vacant the Vice-Chairperson of the Zilla Praja Parishad shall exercise the powers and perform the functions of the Chairperson until a new Chairperson is elected. (4)……………… (5)……………… (6)……………… (7)……………… 17. No one can dispute that during the period commencing from the date of passing the order of disqualification till the impugned order of the learned trial Judge, the office of the Chairperson was vacant. 18. It appears that immediately after the order of disqualification necessary order has been issued enabling the Vice-Chairperson to perform the duties of the Chairperson, obviously under the aforesaid provision. Thus, we are unable to hold as per the contention of Mr. C.V. Mohan Reddy, that the writ petitioner is deemed to have assumed or has assumed office factually, the moment the order of disqualification was suspended by this Court. If we now allow the writ petitioner to assume office, then it amounts to granting final relief to the writ petitioner, pending final disposal of the original Election Petitions before the learned District Judge. 19. We are unable to accept the submission of Mr. C.V. Mohan Reddy, learned Senior Counsel for the writ petitioner, that the moment the order of suspension is passed, the disqualification disappears. 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. 20. In the case cited by Mr. C.V. Mohan Reddy, to support his argument, the High Court was having power to grant, indeed had granted, stay of operation of the annulment of election of the then Prime Minister and stay was continuing till the Hon'ble Supreme Court passed a conditional interim order. 20. In the case cited by Mr. C.V. Mohan Reddy, to support his argument, the High Court was having power to grant, indeed had granted, stay of operation of the annulment of election of the then Prime Minister and stay was continuing till the Hon'ble Supreme Court passed a conditional interim order. It is noticed from the above judgment that the appellant, Smt. Indira Nehru Gandhi, was not allowed to function completely as a Member of Parliament. She was allowed to remain a symbolic Member of Parliament and all the benefits and privileges attached thereto were not allowed to be enjoyed. 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. 21. But in the statute on hand, legal provision is very clear that in case of vacancy arising for any reason in the office of the Chairperson, the Vice-Chairperson will function automatically. 22. If we do not pass an appropriate order, we think that there will be unnecessary confusion as the writ petitioner would take unjust advantage of the unworkable interim order granted by the Hon'ble trial Judge, without adverting to sub-section (3) of Section 193 of Act, 1994. If we allow so, then we are really stultifying the operation of law, which is unchallenged and in force. No Court of law can afford to do so. 23. 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. 24. 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. 25. These two appeals will come up for hearing two months hence. 26. WAMPs are ordered accordingly.