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T. Deen Dayalu Vs. Bezawada Papi Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 6457 of 1983
Judge
Reported inAIR1984AP162
ActsCompanies Act, 1956 - Sections 2 (13) and 2 (24) ; Constitution of India - Articles 192 (1) and 226 ; Andhra Pradesh Payment of Salaries and Pension and Removal of Disqualifications Act, 1953 - Sections 10
AppellantT. Deen Dayalu
RespondentBezawada Papi Reddy and ors.
Appellant AdvocateP. Ananthasen Rao, Adv.
Respondent AdvocateS. Venkata Reddy, Adv. and ;Govt. Pleader for Transport
Excerpt:
.....of member of legislature vests in governor - it is made clear by article 192 (1) that decision of governor shall be final - further no court shall entertain any petition for adjudication of disqualification of member of house of legislature - governor has exclusive jurisdiction and his decision is final. - - 9. however, a plain reading of the above definition clause in our view clearly indicates that 'manager' simpliciter does not include director. thereby it is clearly laid down that no court shall entertain any petition for adjudication of disqualification of a member of a house of the legislature. article 192(1) clearly lays down that if any question arises as to whether a member of a house of the legislature of a state has become subject to any of the..........question dealt with the scope of art. 192(2) of the constitution which states that in giving his decision the governor shall act according to the opinion of the election commission. here we are only concerned with the first question in respect of which the division bench of the madras high court relied upon a decision of the supreme court in jyothi prakash mitter v. chief justice, calcutta high court, : [1965]2scr53 , wherein it was held by the supreme court dealing with art. 217(3) of the constitution that this provision vests the jurisdiction to determine the question about the judge's age exclusively in the president. the relevant portion of the decision reads as under:'this provision vests the jurisdiction to determine the question about the judge's age exclusively in the president.....
Judgment:

Madhava Rao, J.

1. This writ petition is filed by a voter in Andhra Pradesh for the issue of a writ of quo warranto or a direction to restraining respondents 1 to 3 from being members of the Andhra Pradesh Legislative Assembly.

2. In support of the petition, the petitioner filed an affidavit wherein it is stated that the Andhra Pradesh Industrial Development Corporation is a public company registered under the Companies Act, 1956 and the Government of Andhra Pradesh is holding 100% shares in the said Corporation. The State of Andhra Pradesh, 4th respondent, reconstituted the Board of Directors of the Andhra Pradesh Industrial Development Corporation Limited (hereinafter referred as A. P. I. D. C.) and nominated Sri Bezawada Papi Reddy, 1st respondent as Chairman, Sri P. Ramachandra Reddy, and Sri Ankem Prabhakara Rao, respondents 2 and 3, as Directors of A. P. I. D. C. with effect from 4-7-1983. They assumed charge of the said offices with effect from 4-7-1983. Consequently they have become disqualified for being members of the Andhra Pradesh Legislative Assembly with effect from 4-7-1983 under Art. 191(1)(e) of the Constitution of India read with Section 10 of the Representation of the People Act, 1951 further read with S. 2(24) of the Companies Act, 1956. Consequently, their seats in the Andhra Pradesh Legislative Assembly have also become vacant with effect from 4-7-1983, each of them is liable to a penalty of five hundred rupees per day on which they sat and voted in the Legislative Assembly under Article 193 of the Constitution, and that their names are also liable to be struck off from the voters' list of the Andhra Pradesh Legislative Assembly under S. 152 of the Representation of the People Act, 1951 read with S. 16(2) of the Representation of the People Act, 1950. Lastly, it is stated that the petitioner has no efficacious remedy than moving this Court under Art. 226 of the Constitution.

3. Mr. P. Anantha Sen Rao, learned counsel for the petitioner, brought to our notice S. 2(24) foh te Companies Act in which 'Manager' is defined and submitted that 'manager' includes director and that if a person is appointed as manager of a Government Company he incurs disqualification and therefore respondents 1 to 3 are disqualified.

4. At the time of admission itself, the learned Government Pleader appeared and submitted that the jurisdiction of the High Court under Art. 226 of the Constitution cannot be invoked for adjudication of question as to disqualification incurred by the members of Legislative Assembly under Art. 191(1)(e) of the Constitution. Jurisdiction vest under Art. 192 of the Constitution only in the Governor to decide such questions, and therefore this writ petition is not maintainable.

5. Learned counsel appearing for the petitioner, on the other hand, submitted that if a decision has to be rendered on the question of disqualification, the power may vest in the Governor, but if a decision is not required after an inquiry, this Court can entertain petitions under Art. 226 of the Constitution. In the present case, according to him, there is no necessity for adjudication after inquiry and therefore this writ petition is maintainable.

6. We will now examine the respective contentions of the learned counsel.

7. We will take up the point whether this petition is maintainable or not at a later stage.

8. But before we proceed to decide that point, we will first examine whether there is any substance in the submission made by the learned counsel appearing for the petitioner that there is no necessity to make an inquiry in the present case in respect of the disqualification incurred by the respondents 1 to 3 under Art. 191(1)(e). The definition of 'manager' reads as under.

'manager' means an individual (not being the managing agent) who, subject to the superintendence, control and direction of htheBoard of Directors, has the management of the whole or substantially the whole of the affairs of a company, and includes a director or any other person occupying the position of a manager, by whatever name called, and whether under a contract of service or not;

According to the learned counsel for the petitioner 'manager' includes director also.

9. However, a plain reading of the above definition clause in our view clearly indicates that 'manager' simpliciter does not include director. What it says is that 'manager' includes an individual who, subject to the superintendence, control and direction of the Board of Directors, has the management of the whole, or substantially the whole of the affairs of a company and includes a director or any other person occupying the position of a manager, by whatever name called and whether under a contract of service or not. But every director cannot be a manager, and every manager cannot be a director. It may be that a director can be entrusted with the management of the affairs of the company. In the absence of any evidence, it cannot be said that a director is functioning or discharging the duties as manager. In the affidavit filed in support of the writ petition nothing is stated indicating that directors are appointed as managers. This is a question of inquiry.

10. The submission of the learned counsel for the petitioner in this regard that manager includes director without occupying the position of manager prima facie cannot be accepted because it is contrary to the definition itself. There is a separate clause defining 'director'; which reads as under:

'Sec. 2 (13). 'director' includes any person occupying the position of director, by whatever name called.'

11. Even the provisions of the Companies Act indicate that the duties attached to the director are quite different from those of managers. Therefore, we cannot accept the argument of the learned counsel for the petitioner that no inquiry is required in the present case. Even if his submission is accepted that in the absence of an inquiry, this petition is maintainable under Art. 226 of the Constitution, as the enquiry seems to be essential in this case, the writ petition, according to his own submission, cannot be entertained.

12. On the other aspect of the case, the learned Government Pleader submitted that the provisions of Art. 192 are a clear bar to entertain this writ petition as the exclusive jurisdiction to decide the question of disqualification of the members of the Legislature vests in the Governor.

13. In view of the above submission of the learned Government Pleader, it will be relevant to extract Art. 192 of the Constitution which reads as follows:-

192. (1) 'If any question arises as to whether a member of House of Legislature of a State has become subject to any of the disqualifications mentioned in Cl. (1) of Art. 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

14. The learned Government Pleader submitted that the jurisdiction to decide the question of disqualification mentioned in clause (1) of Art. 191 of a member of a House of the Legislature of a State vests in the Governor alone and, therefore, the writ petition under Art. 226 of the Constitution is not maintainable. It is made clear in clause (1) of Art. 192 that the decision of the Governor shall be final. Thereby it is clearly laid down that no Court shall entertain any petition for adjudication of disqualification of a member of a House of the Legislature. In support of his above submission, he relied upon a decision of the Madras High Court in R. Sivasankara v. Election Commission of India, : AIR1968Mad234 . The question involved in the present case did not directly arise in the above case. The question of disqualification under Art. 191(1) of the Constitution was referred by the Governor for the opinion of the Election Commission. An opportunity to explain his case was also given to the member of the Legislative Council who was sought to be disqualified. After considering his objections, the Election Commission tendered the opinion that Sri Sivasankara Mehta, who was sought to be disqualified, had become subject to the disqualification in Art. 191(1)(c) of the Constitution. Thereafter, his seat was declared to be vacant as provided in Art. 190(3) of the Constitution and the Election Commissioner took up proceedings for holding a fresh election and called for nomination papers for filling up the vacancy. Even the nomination papers were filed and the election was due to be held on 22-4-1967. At that stage, a writ petition was filed by Sri Mehta alleging that since the adjudication was pending appeal no finality has attached to the adjudication and therefore it was wrong to hold that he had become disqualified. It is to be noted that in the original proceedings he was adjudicated as an insolvent. Then a writ petition was filed in the High Court. Three interim orders were passed pending disposal of the original side appeal. In the writ petition the learned single Judge who heard the writ petition held that the interim orders passed from time to time in the Original Side Appeal did not have the effect of suspending the adjudication and that Sri Mehta did have the disqualification mentioned in Article 191(1)(c) of the Constitution and dismissed the writ petition. Aggrieved by the said order of the learned single Judge, Sri Mehta preferred a writ appeal and in that writ appeal two questions were raised for consideration. The first question depended upon the scope of Art. 192(1) of the Constitution which states that the decision of the Governor on the question of disqualification of a sitting member shall be final. The second question dealt with the scope of Art. 192(2) of the Constitution which states that in giving his decision the Governor shall act according to the opinion of the Election Commission. Here we are only concerned with the first question in respect of which the Division Bench of the Madras High Court relied upon a decision of the Supreme Court in Jyothi Prakash Mitter v. Chief Justice, Calcutta High Court, : [1965]2SCR53 , wherein it was held by the Supreme Court dealing with Art. 217(3) of the Constitution that this provision vests the jurisdiction to determine the question about the Judge's age exclusively in the President. The relevant portion of the decision reads as under:

'This provision vests the jurisdiction to determine the question about the Judge's age exclusively in the President and so it follows that in the presence of this provision no Court can claim jurisdiction to deal with the said question.'

With reference to the above decision of the Supreme Court, it was held by the Division Bench:

'It would follow on the same analogy that the jurisdiction conferred under Article 192(1) of the Constitution on the Governor to deal with a question arising under Art. 191(1) is an exclusive one and it is not open to this Court in writ proceedings to exercise jurisdiction to deal with that question.'

In our view, the above judgment of the Division Bench of the Madras High Court, being based on the pronouncement of the Supreme Court, is acceptable and we agree with the view expressed by the Madras High Court. Article 192(1) clearly lays down that if any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, it shall be referred for the decision of the Governor and that his decision shall be final. It is, therefore, evident from the above decisions as well as the provisions of Art. 192(1) that the Governor has got exclusive jurisdiction to decide the question of disqualification of Members of a House of Legislature of the State, and that his decision is final.

15. The learned Government Pleader, apart from the above, drew our attention to the A. P. Payment of Salaries and Pension and Removal of Disqualifications Act, 1953 and submitted that in so far as the 1st respondent is concerned he holds the office of the Chairman, A. P. Industrial Development Corporation Limited, which is listed at serial No. 36 of the Schedule prepared with reference to Section 10 of the Act. He submitted that Section 10 of this Act removes the said disqualifications of holding the office of the Chairman of A. P. Industrial Development Corporation Limited. Section 10 reads as follows:

'10. Removal of certain disqualifications:-

No person shall be disqualified for being chosen as, or for being, a member of the Andhra Pradesh Legislative Assembly or Legislative Council on the ground only that he holds any of the office specified in the Schedule of this Act.'

As already submitted, since the office of the Chairman, A. P. Industrial Development Corporation is specified at serial No. 36 of the Schedule, Section 10 of the Act comes to the rescue of the 1st respondent and he shall not be disqualified for being a member of the A. P. Legislative Assembly on the ground that he holds the said office. We see sufficient force in this contention of the learned Government Pleader.

16. In view of the foregoing facts, we are of the view that this writ petition under Article 226 of the Constitution is not maintainable and that this Court has no jurisdiction to entertain the same.

17. The writ petition is dismissed accordingly. Advocate's fee Rs. 2000/-

18. Mr. Ananthasen Rao, learned counsel for the petitioner, made an oral application for leave to appeal to the Supreme Court. But in our view no substantial question of law of general importance which requires the ruling of the Supreme Court is involved in this case. His oral requires is, therefore, rejected.

19. Petition dismissed.


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