T. N. C. RANGA RAJAN, J.

( 1 ) THESE two writ petitions challenge the orders of the Election Tribunal/ subordinate Judge, Pithapuram, setting aside the election to the post of president, and Vice-President of the Mandal Praja Parishad, Pithapuram in the election held on 18-3-1995.

( 2 ) THE petitioners in these two petitions were the candidates for the post of President and Vice-President respectively. The Mandal Praja Parishad had 20 members of which 9 belonged to the Congress Party, 7 belonged to the telugu Desam Party and 4 were Independents. According to the agenda of the meeting called for by the Election Officer, the first item to be taken up in the meeting which was held on 18-3-1995 was the co-option of a member in respect of that item of business, one of the Independent candidates went out of the meeting, 7 members of the Telugu Desam Party and two independent members voted for the candidate. Whereas it was opposed by 8 members of the Congress Party. The other member of the Congress Party Mr. Medisetti ramakrishna did not cast his vote and accordingly the Telugu Desam Party candidate was co-opted. The next item in the agenda was the election of the president which was taken up in the afternoon session. At that time, a whip was issued by both the parties requiring the members of the party to vote for the candidate of the party. Again, the petitioner, who belonged to the telugu Desam Party obtained 7 votes of the Telugu Desam Party members and two votes of Independent members as well as the vote of Medisetti ramakrishna, who belonged to the Congress Party. The other candidate, who belonged to the Congress Party obtained only 8 votes of 9 Congress and one vote of an Independent member. Consequently, the Telugu Desam Party candidate had in all 10 votes in his favour while the Congress Party had only 9 votes in his favour and accordingly the Telugu Desam Party candidate was declared elected. Similarly, in the next election for the Vice-President, the same pattern of voting occurred and the Telugu Desam Party candidate was declared elected for the post of Vice-President also.

( 3 ) THE defeated candidates filed the Election Petitions and contended that the vote of the defecting Congress member should not be counted as he had ceased to be a member by going against the whip issued in respect of the first item of business of co-opted member. The Election Tribunal accepted this contention and set aside both the elections.

( 4 ) IN the present writ petitions, it is contended that the Election Tribunal had overlooked the fact that the question of issue of a whip and disqualification for disobeying the whip arise only under Section 153 proviso which related to the election of the President and Vice-President and no such provision is made in respect of co-option of a member in Section 149. Therefore, it was submitted that even though the defecting member had disobeyed the whip in respect of co-option, he had not ceased to be a member of the Mandal Praja parishad as at that point of time he was qualified to participate in the voting in the election of the President. Secondly, it was submitted that even if he has voted against the whip, according to the proviso to Section 153, he only lost his membership but his vote had to be counted. Reliance was placed on the Notification issued by the State Election Commissioner in Notification no. 291/elec/95 dated 15-3-1995. Lastly, it was argued that even if the vote cannot be counted, it would only mean that both the candidates had equal number of votes and further process of selecting one of them is provided by the Rules and there is no necessity to set aside the election as such. The learned counsel for the petitioner submitted that under the defacto doctrine the acts done by any person who is subsequently disqualified is still valid and binding as if he was properly qualified person. It was also argued that the subsequent disqualification cannot relate back to the voting which were already

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