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Andhra Pradesh High Court
Judges : DALAVA SUBRAHMANYAM, S.R.NAYAK
S.JYOTHI - Appellant
Versus
PRESIDING OFFICER/election OFFICER, THOTTAMBEDU MANDAL, CHITTOOR DT. - Respondent
Decided On : 07-10-02
Election – Constitution of India, 1950 - Article 243 (b) – A. P. Panchayat Raj Act, 1994 - Section 153 - A. P. Conduct of Election of member (Co-opted) and President/vice-President of Mandal Parishad and Member (Co-opted) and Chairman and Vice-Chairman of Zilla Parishad Rules, 1994 - Rule 13 (7) (ii) – Election process – Qualification and Disqualification - Election, reservation and term of office of President and Vice- president - Single Judge up holding the preliminary objection raised by 4th respondent that writ petitions are not maintainable, because, election process is complete and therefore, the only course open to the aggrieved petitioners is to file election petitions, dismissed writ petitions by order - Hence above writ appeals - Members of Mandal Parishad territorial Constituency - Elections took place as scheduled, but it appears made a complaint to the Presiding Officer, 1st respondent herein, requesting him to disqualify petitioners as MPTC members on the ground that they disobeyed the orders of the Party Whip in regard to the elections for the posts of President and Vice- president of Thottambedu Mandal. Pursuant to said complaint, by order petitioners were disqualified as members of MPTC - Aggrieved by same, petitioners filed w. P. before this Court and this Court by order allowed writ petitions and directed 1st respondent to issue fresh show-cause notice to petitioners and then to pass appropriate orders - By impugned order 1st respondent declared that petitioners cease to be members of the MPTC – Held, admittedly no notice of intimation of appointment of the whip was served on the writ petitioners,. there is no evidence to show that before commencement of the election, petitioners were aware of notice of the Whip published in the newspaper - There is nothing on record to show that 2nd respondent attempted to serve notice on the petitioners and they refused to receive the same - It is trite, the burden of proof that the Whip was properly served on the petitioners and despite the service of the Whip, petitioners disobeyed the Whip thereby incurring a liability to be disqualified from membership under Rule 13 (7) of the president/vice-President Election Rules is on the respondents - Burden of proof placed on the respondents is not discharged merely on preponderance of probabilities; standard of proof required is akin to that of proving the criminal or quasi-criminal charge. Clear-cut evidence, wholly credible and reliable is needed to prove disobedience of Whip despite service of intimation of Whip - Such a standard of proof should be insisted because it is basic to law of elections that in a democracy, mandate of people as expressed at the hustings must prevail and be respected by the Courts and elected candidate as a member of Mandal Parishad cannot be disqualified for the alleged disobedience of Whip lightly and in the absence of clear-cut and satisfactory substantive evidence to show that he has disobeyed the Whip - Writ Appeal allowed.
( 1 ) W. A. Nos. 1907 and 1908 of 2001 filed by the unsuccessful petitioners are directed against the common order of the learned single Judge dated 28-11-2001 made in W. P. Nos. 18953 of 2001 and 18954 of 2001. In the above writ petitions, the petitioners assailed the order passed by the Presiding Officer/ election Officer, Thottambedu Mandal, chittoor District, the 1st respondent herein, dated 6-9-2001 declaring that the petitioners cease to be members of the Mandal Parishad territorial Constituency (for short, MPTC) of Thottambedu and Bonnupalli respectively with immediate effect.
( 2 ) THE back ground facts leading to the filing of the writ petitions may be noted briefly as under: Smt. S. Jyothi, the petitioner in W. P. No. 18953 of 2001 and mr. K. Chandraiah Naidu, the petitioner in w. P. No. 18954 of 2001 were elected as mptc members of Thottambedu and bonnupalli in the election held on 17-7-2001. They belong to Telugu Desam Party, a recognized political party. Election to the post of President and Vice-President of thottambedu Mandal was held on 22-7-2001. It is the case of Smt. S. Jyothi, petitioner in W. P. No. 18953 of 2001 that the district Telugu Desam Party President appointed her as Party Whip and he also issued a notice to the Presiding Officer, thottambedu Mandal intimating her appointment as Party Whip for the election to the posts of President and Vice-President. It is also her case that B-Form was issued in favour of Mr. K. Chandraiah Naidu, petitioner in W. P. No. 18954 of 2001 for the post of President of Mandal Praja Parishad and according to her a copy appointing her as Party Whip was presented to the presiding Officer, the 1st respondent on 22-7-2001 at 9. 15 a. m. , but, however, after sometime another person by name mr. K. Dhananjeyulu presented another b-Form to the Presiding Officer alleged to have been issued by the District Telugu desam Party President to the effect that one mr. Y. Madhavaiah was appointed as party Whip and B-Form in favour of mr. K. Dhananjeyulu for the post of president and Mr. K. Chandraiah Naidu for the post of Vice-President was issued on behalf of the Telugu Desam Party. The elections took place as scheduled, but it appears, Mr. Y. Madhavaiah made a complaint to the Presiding Officer, the 1st respondent herein, requesting him to disqualify the petitioners as MPTC members on the ground that they disobeyed the orders of the Party Whip in regard to the elections for the posts of President and Vice- president of Thottambedu Mandal. Pursuant to the said complaint, by order dated 22-7-2001, the petitioners were disqualified as members of MPTC. Aggrieved by the same, the petitioners filed w. P. Nos. 15301 and 15302 of 2001 before this Court and this Court by order dated 6-8-2001 allowed the writ petitions and directed the 1st respondent to issue fresh show-cause notice to the petitioners and then to pass appropriate orders. Consequent on the said directions, fresh show-cause notices dated 11-8-2001 were issued to the petitioners to which the petitioners submitted their explanation on 15-8-2001. Thereafter, by the impugned order dated 6-9-2001, the 1st respondent declared that the petitioners cease to be the members of the MPTC.
( 3 ) SRI Y. Madhavaiah, the 4th respondent in writ petitions as well as in these writ appeals, has filed counter-affidavit. In the counter-affidavit, it is stated that the writ petitions are not maintainable as there is an efficacious and alternative remedy of filing election petition under Section 233 of the a. P. Panchayat Raj Act, 1994 (for short, the act) read with Clause (b) of Article 243 of the Constitution. It is also stated that the rules relating to election Tribunal in respect of Gram Panchayat, Mandal Parishads and zilla Parishads were framed by the government in G. O. Ms. No. 111, dated 3-3-1995 and that the Sub-Court (now Senior civil Judge s Court) is the Election Tribunal and, therefore, the petitioners are required to file e
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