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thellakula Jalayya Vs. Namana Venkateswara Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 13063 of 1953
Judge
Reported inAIR1955AP17
ActsConstitution of India - Article 226; Madras District Municipalities Act, 1920 - Sections 49(2)
Appellantthellakula Jalayya
RespondentNamana Venkateswara Rao and ors.
Appellant AdvocateNeti Subramaniam, Adv.
Respondent AdvocateP. Somasundaram, Adv. ;Addl. Govt. Pleader
Excerpt:
election - interim orders - article 226 of constitution of india and section 49 (2) of madras district municipalities act, 1920 - application filed by writ petitioner to stay operation of order of election commissioner (ec) pending disposal of writ petition - ec had disqualified petitioner as candidate for election under section 49 (2) - interim order to put a stay on order of ec was finalized by this court - second prayer in application was regarding permission granted to petitioner to continue as municipal councilor until writ is disposed - held, prayer to be granted as order of ec is not final till writ petition is pending. - .....18-12-1953 passed in o. p. no. 126 of 1952 pending disposal or writ petition no. 1059 of 1953. the election commissioner held that under s. 49(2)(g), madras district municipalities act, the petitioner herein was disqualified from standing as a candidate and that his election for ward no. 23 as municipal councillor was, therefore, void. the1st respondent herein was duly declared elected as municipal councillor. the writ was admitted by rajagopala iyengar j. on 29-12-1953 and interim stay of operation of the order as regards the declaration that the 1st respondent was duly elected was ordered. in regard to the second prayer, that the petitioner might be allowed to continue as a member of the municipality till the disposal of the writ petition, notice was ordered to the respondents.(2) the.....
Judgment:
ORDER

(1) This application was filed by the petitioner to stay the operation of the order of the Election Commissioner, Guntur, dated 18-12-1953 passed in O. P. No. 126 of 1952 pending disposal or writ petition No. 1059 of 1953. the Election Commissioner held that under S. 49(2)(g), Madras district Municipalities Act, the petitioner herein was disqualified from standing as a candidate and that his election for Ward No. 23 as Municipal councillor was, therefore, void. The1st respondent herein was duly declared elected as Municipal Councillor. The writ was admitted by Rajagopala Iyengar J. on 29-12-1953 and interim stay of operation of the order as regards the declaration that the 1st respondent was duly elected was ordered. In regard to the second prayer, that the petitioner might be allowed to continue as a member of the Municipality till the disposal of the writ petition, notice was ordered to the respondents.

(2) The 1st respondent filed C. P. P. No. 6651 of 1954 to advance the hearing of the writ petition No. 1059 of 1953. Chandra Reddy J. passed the following order on 28-7-1954:

'As the request of both sides, hearing of the case is fixed for 4th of August; post it at the top of the list, subject to part-heard cases.'

In spite of that direction, it was posted before me for hearing and on 4-8-1954, I passed the following order:

'I find that there is an order passed by Mr. Justice Chandra Reddy that the writ shouldbe heard on 4-8-1954 and it should be posted at the top of the list subject to part-heard cases. I do not know why the writ hasnot been posted for hearing. If for any reason the writ cannot be heard, the learned Advocate for the petitioner Mr. P. Somasundaram requests that the application to vacate the interim injunction might at leastb be posted for hearing. Either the writ or the application may be posted for hearing tomorrow.'

On 5-8-1954, C. M. P. No. 13063 of 1953 was posted before me for final disposal and after hearing arguments, I passed the following order:

'I see no reason to dissolve the interim order passed by Mr. Justice Rajagopala Iyengar on 29-12-1953. The writ having been admitted, the order was rightly suspended. The proper course is to dispose of the writ as early possible. That was the order passed by Mr. Justice Chandra Reddy in 28-7-1954. I make the interim order aboslute and the writ may be posted as early as possible for hearing.'

The learned advocate for the petitioner by his letter dated 26-6-1954 invited my attention to the fact that I did not pass final orders inso far as the second prayer was concerned and I directed the application to be posted for further hearing. By mistake, both the advocates appearing for the petitioner and respondent did not draw my attentioin to the fact tht Mr. Justice Rajagopala Iyengar directed notice so far as the second prayer in the application was concerned. I, therefore, heard arguments on this question.

(3) The contention of the learned advocate for the petitioner was that the order of the Election Commissioner was that the order of the Election Commissioner setting aside his election was erroneous and that, as the writ had been admitted by Rajagopala Iyengar J. 'status quo ante' should be maintained and that he should be allowed to function as a Municipal Councillor, pending the disposal of the writ. Mr. P. Somasundaram, learned counsel for the respondent, argued that as the election of the petitioiner was set aside on the ground that he was disqualified under S. 49(2) (g), Madras District Municipalities Act, the order of the Election Commissioner should not be suspended and the petitiioner permitted to continue as a Municipal Councillor. He sought to re-open the order passed by me on 5-8-1954, susspending the operatioin of the order of the Election Commissioner declaring his client as having been duly elected.

The order dated 5-8-1954 has become final and it is therefore not open to the learned counsel to question it at this stage. He drew my attention to a decision of Jackson J. reported in --'Gopalakrishna Konar v. Vilanga Konar', AIR 1926 Mad 132 (A) in support of the proposition that I should not have suspended the order of the Election Commissioner and restrained his client from taking his seat as Municipal Councillor. This decision was not brought to my notice at the hearing on 5-8-1954. The decisioin does not also support the contention that this Court has no jurisdiction to pass an appropriate order. the learned Judge proceeded on the assumption that the Court has ample jurisdiction. On the facts of the case, he held that therere owuld be no substantial injury to the petitioner by refusing to issue an order of injunction and thereby permitting the Municipal councillor who was declared elected to take his seat.

He referred to -- 'Aslatt v. Corporation of Southamption', (1880) 16 Ch D 143 (B) in support of the proposition that generally an injunction should issue to preserve 'status quo ante and this decision in -- '(1880) 16 Ch D 143 (B)' was also followed and applied by a Bench of the Madras High Court in -- 'Sarvothama Rao v. Chairman, Municipal Coiuncil, Saidapet', AIr 1923 Mad 475 (C) and in an earlier case by Mr. Justice Jackson in -- 'Venkatasubbiah Chettiar v. Sesha Aiyar', AIR 1924 Mad 797 (D). I follow that decision of the english Court and the observations of Jackson J. that the proper order to pass, when a writ has been admitted, is to preserve 'status quo ante' and to permit the petitioner to function as a Municipal Councellor until the write is disposed of. The order passedby the Election commissioner, declaring the election as void, is no longer final and conclusive, inasmuch as the writ has been admitted, and this court has to decide, whether the election is void or not.

In -- 'Satyanarayana v. Venkatarattamma', : AIR1951Mad1044 (E), Chief Justice Rajamannar pointed out delivering the judgment of the Bench at page 1045 that

'It is obvious that the decisioin in the appears is again set at large as it lost its finality the moment this Court issued the rule nisi. This Coiurt can, on this application for certiorari, set aside by quashing the order in the appeal Surely in such circumstances, it must be said that the appeal is pending.'

There is, therefore, no substance in the contention of the learned advocate for the respondent that a different rule should be followed and that 'status quo ante' should not be preserved in cases where an election has been declared void. No authority whatsoever was cited in support of that contention. The petitioner had secured a huge majority of votes. Even as admitted by the 1st respondent himself, in paragraph 3 of his affidavit dated 25-7-1954, the petitioner 'is continuing to function all these seven months'.

I see no reason why the petitioner who was continuing to function all these montfshs as a Municipal Councillor should not continue to do so till the writ petition is finally disposed of and why the operation of the order of the Election Commissioner, declaring his electioin void should not be suspended. I, therefore, grant the second prayer, namely that the petitioner should be allowed to continue as a member of the Municipality till the disposal of the writ petition, by suspending the operatioin of the order of the Election Commissioner in O. P. No. 126 pf 1952 that his election was void.

(4) Order accordingly.


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