Andhra HC (Pre-Telangana)
M. Veerabhadra Rao, President, M.P.P. vs Election Tribunal-Cum-Subordinate ... on 18 June, 1997
Equivalent citations: 1997(5)ALT168
ORDER 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 been recorded and on that basis the result declared by the Election Officer must be upheld.
5. The respondents have objected to this contention though the petitioners by supporting the orders of the Election Tribunal and pointing out that the contravention of a whip whether it was for the election of the President or Vice-President or for any other matter would necessarily lead to disqualification and consequently having been disqualified forthwith at the earlier point of time the defecting member could not participate in the election process at all. Secondly it was argued that even if he could participate in the election of the President or Vice-President, the wording of Section 153 proviso which states that he will be disqualified forthwith indicated that not only will he be disqualified but his vote also will not be counted. The learned Counsel for the respondents submitted that if we take the objects and reasons of the amendment which introduced the proviso it was for the purpose that the election should be on party lines and unless the vote is disregarded, the intention of the Legislature cannot be effectuated. Thirdly, it was argued that in any event, once having disregarded the whip in respect of the election of the President, at least in the case of the election of the Vice-President, he could not have participated validly, and therefore, his vote cannot be counted. Lastly it was accepted that if the vote of the defecting member cannot be counted, then the votes polled to both the candidates were equal, and therefore, one of them has to be selected by casting lots. It was, however, pleaded that since the situation has changed by afflux of time, fresh election ordered may be sustained.
6. I have considered the submissions and also the orders of the Election Tribunal. As far as the facts of the cases are concerned, it is not in dispute that a whip was issued and Sri Medisetti Ramakrishna, who belonged to the Congress Party, disobeyed the whip and voted in favour of opposing candidate in the matter of co-option of a member as well as in the election of the President and Vice-President. The first question is whether by going against the whip he was disqualified at the time of co-option of a member he ceased to be a member and hence prevented from participating in the election of the President and Vice-President. A reading of Section 149 of the A.P. Panchayat Raj Act, 1994 (hereinafter referred to as 'Act") in contrast to Section 153 will make it clear that there is no specific provision in Section 149 providing for disqualification of a member when he contravenes the whip in respect of any matter other than the election of the President or Vice-President. In the circumstances, I have to accept the contention of the petitioners that the defecting member was entitled to participate in the election of the President and Vice-President and was not disqualified at the point of time prior to the taking up of the item of the election of the President on the agenda.
7. With regard to the election of the President, the fact is that he voted against the whip and thereby he was disqualified. It appears that he challenged it but by subsequently withdrawing the writ petition accepted that position. That however is not really relevant for our purpose except to underscore the factual background that he had contravened the whip at the time of voting for the election of the President. What we are concerned here is only whether the vote cast by him should be counted or not. The proviso to Section 153(1) of the Act reads as follows:
"Section 153: Election, reservation and term of office of President and Vice-President:-
(1) For every Mandal Parishad there shall be one President and one Vice-President who shall be elected by and from among the elected members specified in Clause (i) of Sub-section (1) of Section 149 by show of hands duly obeying the party whip given by such functionary of the recognised political party as may be prescribed. If at an election held for the purpose no President or Vice-President is elected, fresh election shall be held. The names of the President and the Vice-President so elected shall be published in the prescribed manner:
Provided that if a Member of the Legislative Assembly of the State or of either House of Parliament is elected to either of the said offices, he shall cease to hold such office unless within fifteen days from the date of election to such office, he ceases to be a member of the Legislative Assembly of the State or of either House of Parliament by resignation or otherwise.
Provided further that a member voting under this Sub-section in disobedience of the party whip shall cease to hold office forthwith and the vacancy caused by such cessation shall be filled as a casual vacancy."
The proviso was introduced by the Act 5 of 1995. This proviso does not state anything about the effect of the vote cast by a member in disobedience of the party whip. The question therefore is whether the proviso could be construed in a manner as to say that such a vote will be taken into account or not.
8. The analogous provision will be Schedule X of the Constitution of India. But the provision of Schedule X do not assist us in resolving the problem because under the rules in Schedule X, the disqualification is not immediate but only after an enquiry. That Schedule is also silent about the question whether the vote cast by a defecting member should be counted or not.
9. The learned Counsel for the petitioners submitted that this lacuna has been cured by the notification issued by the Election Commissioner Under Section 201 of the Act. The learned Counsel for the respondents, however, submitted that Section 201 of the Act cannot enable the Election Commissioner to issue any such clarification because it only enable him to conduct election efficiently and the appropriate Section will be Section 275 which provides for the Government to issue a notification removing the difficulty, if any, in administering the Act. A comparision of the wording of these two Sections appears to support the contention of the learned Counsel for the respondent and I am of the opinion that such a construction is to be preferred because any notification made Under Section 275 of the Act has to be placed before the Assembly which indicates that it will be a delegated legislation unlike any clarification or rules made Under Section 201 of the Act which relates only to the procedure of conducting the elections.
10. It was then argued on behalf of the learned Counsel for the petitioners that any lacuna or omission can be cured by interpreting the Section in such a way as to give effect to the objects of the Section. In fact, this is the plea made by the learned Counsel for the respondents also. But I am of the opinion that it is not possible to interpret a Section where it is silent. The learned Counsel for the petitioners submitted that since the Section is silent, the ordinary provision relating to the counting of vote should apply and there is no reason why the vote cast by a defecting member should be ignored. The learned Counsel for the respondents, however, pointed out that since the Act provides for instant disqualification of any such candidate, the votes will be inconsistent with such disqualification. He also drew my attention to the observations of the Supreme Court in Reserve Bank of India v. Peerless G.F.I. Company Limited, AIR 1987 SC 1023 at 1042. and submitted that it is not only the text but also the colour of the context which should give proper meaning to the statute. For this purpose, if we look at the statement of objects and reasons, we find that one of the objects was to amend Section 153 in order to hold elections to the office of the President of the Mandal Parishad by show of hands obeying the Party Whip and to provide for the cessation of the member who disobeys the Party Whip (Clause 7 of the Bill). In other words, it appears that the election was to be conducted on party lines and the whip of the party was to be enforced by disqualifying the member who does not follow the whip. Looking at it from the point of enforcement of a whip, it appears to me that if a member, abstains from voting, then the intention of the party whip to get the candidate elected may still be possible even though the member concerned may be disqualified. But if the member had voted for the other candidate, he would be able to defeat the intention of the whip altogether. From this point of view it appears to me that in order to effectuate the object of this proviso particularly when the election is by show of hands, the vote cast by the defecting member should not be counted at all. The interpretation placed by the State Election Commissioner in the notification, in my opinion, does not effectuate the object and intention of the legislation. No doubt, the defacto doctrine postulates that an act of a disqualified person would still be valid but that doctrine has no place in the scheme of this legislation. The de facto doctrine is that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of the officers de jure (Pulin Behari v. King Emperor. (1912) 15 Cal L.J. 517 at p.574). This doctrine postulates that the act carried out is valid until set aside even though the person carrying out that act is disqualified. In other words, the acts complained of was not the reason for the disqualification but was independent of it. But in the present cases, it was the very defiant act which disqualifies the member. Therefore, I am of the opinion that the said doctrine will not apply to the present cases.
11. In respect of the election of the Vice-President, there is an additional factor that by voting against the whip for the election of the President, he had ceased to be a member forthwith and could not therefore participate in the election of the Vice-President. His vote in the Vice-President election cannot in any case be counted at all. In my considered opinion, the vote cast by the defecting member should be ignored if effect is to be given to the whip issued by the party. In the circumstances, I agree with the Election Tribunal for reasons other than that given by the Tribunal that the declaration of the results was not in accordance with law.
12. But this does not mean that the election should be set aside because if we ignore the vote cast by the defecting member we arrive at a position where both the rival candidates had 9 votes each. In this situation, Rule 36 proves that one of them should be selected by lots.
13. I, therefore, deem it fit to set aside the declaration of the result and direct the Returning Officer to cast lots and declare the winner in accordance with the Rule 36 of the Election Rules. Since the Rule provides the Election Officer shall forthwith decide between the candidates by lots, I am of the opinion that there should be no further delay in this matter. I, therefore, direct the Election Officer to proceed to decide the matter on or before 15-7-1997.
14. Accordingly, both the writ petitions are allowed. No costs.