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Gogineni Surya Prakasa Rao Vs. Badugu Bhushnam and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 712 of 1970
Judge
Reported inAIR1972AP113
ActsAndhra Pradesh Gram Panchayats Act, 1964 - Sections 2(4) and 11(4); Constitution of India - Article 226; Andhra Pradesh Gram Panchayat (Conduct of Election) Rules, 1964 - Rule 61
AppellantGogineni Surya Prakasa Rao
RespondentBadugu Bhushnam and ors.
Appellant AdvocateP.P. Surya Rao, Adv.
Respondent AdvocateGovt Pleader and ;N. Bhaskara Rao, Adv.
Excerpt:
election - proceedings - sections 2 (4) and 11 (4) of andhra pradesh gram panchayats act, 1964, article 226 of constitution of india and rule 61 of andhra pradesh gram panchayat (conduct of election) rules, 1964 - resignation of elected member while petition challenging his election pending - notifications for fresh election to such vacancy challenged on reason of pendency of petition related to prior election - tenure of returned candidate in proposed election subjected to order of pending petition - election officer under statutory obligation to conduct election to vacant seats - held, pendency of election petition does not vitiate proceedings to conduct election to vacant seat. - .....election but also a declaration that he was the duly elected candidate, it cannot be said that any casual vacancy had arisen by reason of third respondent's resignation. an argument relying on section 11 (4) was advanced that filling up a casual vacancy will not prejudice or defeat the right of the petitioner as the person elected cannot continue as a member beyond the period for which the members resigning could not have continued had he not thus resigned. this argument was appealed on helping such a contention goes against it, for, it says that the person elected in the casual vacancy shall hold office so long as the member in whose place he is elected would have been entitled to hold the office if the vacancy had not occurred. it was pointed had not occurred. it was pointed out that.....
Judgment:

N. Kumarayya, C.J.

1. This appeal is directed against the order of Ramachandra Rao, J. in Writ Petition No. 4180 of 1970 whereby he allowed the said writ petition with costs.

2. The petition was for issuance of a Writ of Mandamus directing the Divisional Panchayat Officer, Vijayawada and the Election Officer of velpur Gram Panchayat to forbear from holding the election to the 6th ward of velpur Gram panchayat pending disposal of the election petition before the Election Tribunal (Principal District Munsif, Vijayawada).

3. The said election petition was filed in the following circumstances; The Gram Panchayat Elections of Velpur village were duly held on 16-7-1970. There were 9 constituencies from which various members were returned. We are however concerned in this proceeding only with the 6th Constituency. There it was a straight contest between the writ petitioner and the third respondent to the writ petition. The latter came out successful. But his rival candidate called in question his election by filling an election petition. He sought for setting aside the election of the returned candidate as being invalid. He further prayed for a declaration that he himself had been duly elected. Even before this petition was filed on 31-7-1970, the third respondent submitted his resignation from membership on 27-7-1970 itself. According to the provisions of Section 23 of the Gram Panchayats Act, any member may resign by giving a notice in writing to the Block Development Officer or the Divisional Panchayat Officer as the case may be. If the resignation is delivered personally to the officer concerned. it will take effect from the date of receipt. In other cases, it will take effect from the date of receipt. In other cases, it will take effect from the date of confirmation of the genuineness of resignation from the person resigning. By reason of this resignation delivered ;personally, the Divisional Panchayat Office reported to the second respondent Election Officer of Velpur Gram panchayat within 15 days as contemplated by law so that he may take steps for a fresh election for ward 6. As the said vacancy was a causal vacancy it had to be filed up within 4 months in accordance with the provisions of Section 11 (4) of the Gram Panchayats Act. The second respondent accordingly issued an election notice fixing the date for various stages and the date of election as 2-9-1970. This was notified on 11-8-1970. The last date for receiving nomination papers was fixed as 22-8-1970. In compliance with the election notice given. 5 nomination papers were filed, but the writ petitioner raised demur to the receiving of nomination papers and holding elections on the ground that the elections petitions before the Principal District Munsif. he had informed the first respondent as early as on 6-8-1970 that the election petition had already been filed so that fresh election may not take place. But since the election programme was not held in abeyance the petitioner came to this court seeking for the relief referred to above.

4. The only point that fell for consideration in the writ was: Could there be any vacancy in the eye of law by reason of the resignation even though the election of the member who had resigned was in dispute and prayer for a declaration that the election petitioner himself has been duly elected was made in the election petition filed? Could it be validly filled up by a fresh election when the said election petition was pending? It was argued before the learned Judge that the purpose of election as not valid as it was calculated defeat the claim of the petitioner in case he comes out successful in his election petition. The learned Judge held the so long as the election petition is pending and the petitioner seeks therein not only the nullification of the election but also a declaration that he was the duly elected candidate, it cannot be said that any casual vacancy had arisen by reason of third respondent's resignation. An argument relying on Section 11 (4) was advanced that filling up a casual vacancy will not prejudice or defeat the right of the petitioner as the person elected cannot continue as a member beyond the period for which the members resigning could not have continued had he not thus resigned. This argument was appealed on helping such a contention goes against it, for, it says that the person elected in the casual vacancy shall hold office so long as the member in whose place he is elected would have been entitled to hold the office If the vacancy had not occurred. It was pointed had not occurred. It was pointed out that as per this provision, the person elected in the casual vacancy would continue in office for the period for which the third respondent himself would have been in office but for has resignation and not but for the result of the election petition. So then, if elections are permitted to be held, the successful candidate will continue in office unaffected by the result of the election petition, till the balance of the term of full five years inasmuch as the third respondent himself had he not resigned would have had a right to continue till that period. The further ground shown against the advisability of holding election was that it would give rise to competing claims one by the person elected in the casual vacancy and the other by the petitioner as and when he succeeds in the election petition. In that event, election should be avoided by issuance of a writ of Mandamus. These are the main grounds on the basis of which the learned Judge allowed the Writ Petition and directed the respondents not to go on with the election and at the same time directed the Election Tribunal to dispose of the election petition as expeditiously as possible.

5. After hearing the arguments, we wanted to ascertain at what stage the election petition is and whether it has come to a close or is nearing conclusion as several months have elapsed since the direction was given by the learned Judge. The parities have now informed us that evidence has not yet been started in the case. In this state of progress of the case, it is not worthwhile waiting for the result and keep the matter pending.

6. The point involved after all is a legal point which has to be decide on consideration or interpretation of some of the provisions of the Act and the rules. The Gram Panchayat a Act is a self-contained enactment. It deals with various matters. We are, concerned only with the question of election. The act has sought to provide for various contingencies in this behalf. It has provided for ordinary elections, casual elections and also for filling up the vacancies in certain contingencies otherwise than by election. Of course, when a member has been elected. his term of office ordinary will be five years from the date of the first meeting of the Gram Panchayat as provided in Section 11. But he may resign earlier or his seat may otherwise fall vacant. In case the be a casual vacancy it will have to be filed up. The words 'casual vacancy' have been defined to mean' 'a vacancy occurring otherwise than by efflux of time'. Casual vacancy can be filled up by casual election which also has been defined in S. 2. sub-sec. (4) as meaning 'an election held to fill a casual vacancy.' According to Section 11 (4) (a), every casual vacancy in the office of an elected member of a Gram Panchayat shall be reported by the executive authority to the election authority within fifteen days from the date of occurrence of such vacancy and shall be filed within four months from the date. Clause (b) says that a member elected in a casual vacancy shall enter upon office forthwith but shall hold office only so long as the member have been entitled to hold office if the vacancy had not occurred. clause (c) provides that no casual election shall be held to a gram panchayat within sic months before the date on which the term of office of its members expire by efflux of time. So then, any vacancy that is caused otherwise than by efflux of time will be deemed to be a casual vacancy and that shall be filled up in accordance with Section 11 (4) of the gram Panchayats Act. Then again, the procedure to be adopted for decision of election disputes is contained in Rules 49 and 75. Form the purpose of this case, we are concerned with Rule 61 as we have to consider the effect of the order where the election is declared void or when declaration is given that the person other than the elected candidate has been duly elected. Under Rule 60, at the conclusion of the enquiry, the election court shall declare whether the election of the returned candidate or candidates is void under Rule 59 and declare in addition to the said declaration that any other party to the petition who had claimed the seat has been duly elected. Rule 61 deals with cases covered by sub-rule (1) I. e., cases in which it has been declared that the election is void and fresh election is held in consequence thereof as provided by Col. (b) sub-rule (2) of Rs. 60. In that event Rule 61 says, the seat of the returned candidate or the seats of the returned candidates, as the case may be, where election has been held to be void, shall be deemed to be vacant from the date of the order of the election court and the authority concerned shall forthwith take the necessary steps for holding such fresh election if on the other hand, a declaration be given to the effect that the other party to the petition who has under the rule claimed the seat has been duly elected as contemplated by Cl.(a) of sub-rule (2) of R. 60, there will be no occasion for a fresh election and the candidates will be deemed to have been duly elected in the election that took place and he shall be deemed to be I. e., not to hold he election within the statutory period. Indeed, the section is categorical and provides that every casual vacancy in the office of an elected member of a Gram Panchayat shall be reported by the executive authority to the election authority within fifteen days from the date of occurrence of such vacancy and shall be filled within four months from that date. The provision is mandatory and has to be obeyed in full. It has to be followed exactly. When such is the statutory obligation on the authority concerned, it is not within the office of Mandamus to direct the authority not to give effect to the said provision but to stay its hand till the election petition is disposed of. On the other hand the duty of Mandamus is to direct otherwise should there be any slackness on the part of the authority. Question of expediency can in no circumstances interfere with the mandatory duty cast on the authority. That apart in the circumstance of the case even the question of expediency does not arise at all. After all, the person who is elected in the proposed election shall hold office only so long as the member in whose place he is elected would have been entitled to hold office if the vacancy had not occurred. If the third respondents' selection is declared to be void and election is directed to be void and election is directed certainly the person who has been elected in the casual vacancy cannot continue in office by reason of the declaration that the election of the third respondents himself was void. The third respondent if he had not submitted his resignation could not have continued in office after such order has been passed. So naturally direction for election contained in R. 60 will take effect and the person who has been elected din causal vacancy shall vacate the office. If the election petitioner be declared as duly elected, the same result will follow so far as the new contract is concerned. Having regard to Rule 61 the order of the election court shall take effect from the date of the order. In other words, only upto the date of the order the person who has been elected in the causal vacancy shall continue in office. Thereafter, he shall not. There is of course no express provision in Rule 61 relation to a case where it has been declared that the election petitioner had been duly elected. Obviously enough, there can be no occasion for such a provision for the order of the Tribunal itself will take effect from the date of election having regard to the declaration made. It is implicit in the very declaration made by the Tribunal. In view of the above position in law, we are of the view that no writ of mandamus could issue for staying the election pending disposal of the election petition in view of the mandatory provision of Section 11 (4). We are further of the view that the election will not give rise to competing claims or conflict of laws if the Election Tribunal gives declaration that the election is void or if it declares that the election petitioner had been duly elected, for the election of the candidate in the casual vacant, under the terms of the Gram Panchayats Act itself, is subject to the validity of the election or right to continue as a member of the candidate or the person in whose casual vacancy the present incumbent had been elected. The question of conflict therefore does not arise. For all these reasons, the writ appeal is allowed and the order of the learned Judge is set aside. The Writ Petition shall stand dismissed. The election Officer shall take up the proceedings from the stage they were stayed and conclude them in accordance with law. The appellant will be entitled to costs in this appeal. Advocate's fee Rs. 100/-.

7. Writ appeal allowed.


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