when the election to the Mandal Praja Parishad was held in the year 2001, TRS party was not a recognized political partyWhip contemplated under Section 153 of the Act, 1994 can only be issued only by a recognized political party. As noticed from the facts of the said case, the election to the Mandal Praja Parishad took place on 03.07.2001. TRS party applied for recognition to the Election Commission for registration as a political party on 12.06.2001. On 21.08.2001, TRS Party was registered as a political party. After the general elections to the State Legislative Assembly in April, 2004, party was recognized as political party. Thus, by the time, when the election to the Mandal Praja Parishad was held in the year 2001, TRS party was not a recognized political party. It is thus seen that the facts in issue in the said case are different from the facts in the present case. Thus, the said decision does not come to the aid of the petitioner.

THE HONBLE SRI JUSTICE  P.NAVEEN RAO        

WRIT PETITION No.32144 of 2014  


03-08-2015

N.Suharlatha w/o. Babu Rao, Aged about 50 years,H.No.10/22-1, Galivaripalle
Post, Rajampeta Mandal,Kadapa District.  Petitioner
                               
The State Election Commission, rep.by its Secretary, Budda Bhavan, M.G.Road,
Secunderabad and others. . Respondents  

Counsel for the petitioner: Sri Vedula Venkata Ramana for the petitioner

Counsel  for the Respondents:  1)Sri V.V.Prabhakar Rao,        
                                 standing counsel for          
                                 respondents 1 and 2
                                 2)Government Pleader for
                                   Respondent No.3
                                 3) Sri D.Sudarshan Reddy      
                                   For respondent No.4

<Gist :

>Head Note:

? Cases referred:

1.  2005 (6) ALT  1 (D.B.)

HONBLE SRI JUSTICE P.NAVEEN RAO      

WRIT PETITION No.32144 of 2014  

ORDER:

        In the elections conducted to Panchayat Raj bodies in the
year 2014, petitioner was elected to the post of Member of
Utukuru-2 Mandal Praja Parishad Territorial Constituency (MPTC)
as candidate of Yuvajana Shramika Rythu Congress Party (YSRCP).  
The State Election Commission conducted elections to the
President and Vice-President of Mandal Praja Parishad,  Rajampeta
Mandal on 04.07.2014 to Rajampeta Mandal Praja Parishad.  On
3.7.2014, the YSRCP issued whip directing its members to cast
their votes to the candidate sponsored by the party as a President
of the Rajampet Mandal Praja Parishad.  In defiance of the said
whip, petitioner contested to the post of President as a candidate
sponsored by the Telugu Desam Party and was successful.  On the
same day, YSRCP has complained to the State Election  
Commission to disqualify the petitioner as Member of MPTC and
also as President of Mandal Praja Parishad.  In response to the
said intimation given by the party, the Presiding Officer of the
Mandal Praja Parishad issued notice dated 15.07.2014 calling
upon the petitioner to submit her explanation as to why she
should not be disqualified.   Petitioner filed her explanation on
20.07.2015.  She denied of issuance of any whip by YSRCP and
that the question of disobedience of the said whip would not arise.
The Presiding Officer, Mandal Praja Parishad, Rajampeta Mandal,
passed orders on 18.08.2014 disqualifying the petitioner as
President of MPP and as primarily member of Mandal Parishad
Territorial Constituency.  Aggrieved thereby this writ petition is
filed.

2.      Heard learned senior counsel Sri Vedula Venkata Ramana
for the petitioner, learned senior counsel Sri D.Sudarshan Reddy
for the 4th respondent and Sri V.V.Prabhakar Rao, learned
standing counsel  for the State Election Commission.

3.      Learned senior counsel contends that provision in Section
153 of Panchayat Raj Act, 1994 ( for short, Act, 1994) is not
attracted inasmuch as YSRCP was not recognized political party as
on the date of election of the petitioner as Member of Utukuru-2
Mandal Parishad Territorial Constituency.  Only a recognized
political party can issue such whip and whip issued by the
recognized political party is alone valid.  YSRCP was only a
registered political party by 30.03.2014 and it was granted
recognition by Election Commission of India only on 27.06.2014.
He, therefore, submits that disqualification impugned in the writ
petition is ex facie illegal and is liable to be set aside.  Learned
senior counsel further contends that even assuming that petitioner
was disqualified as President of Mandal Praja Parishad, the
disqualification is applicable only to that post and it can not
automatically result in disqualifying the petitioner as Member of
the Mandal Parishad Territorial Constituency.  He further submits
that, in reiteration of the first contention that YSRCP was not a
recognized political party by the time the elections to Mandal
Parishad Territorial Constituency was held on 30.03.2014 and,
therefore, she is not bound by the whip issued by such party as on
that date and, therefore, she cannot be disqualified on the said
provision to the post of Member of Mandal Parishad Territorial
Constituency.

4.      Learned senior counsel placing reliance on the decision of
the division bench of this Court in the case of Singam
Satyanarayana and others v. Election Officer and Deputy Chief
Executive Officer, Zilla Parishad, Ranga Reddy District and
others , contends that as YSRCP did not have recognition by the
time elections were held on 30.03.2014, the provision in Section
153 of the Act is not attracted.

5.      With reference to the objection on maintainability of the writ
petition, when an alternative remedy by way of appeal to the
District Court is provided under Section 153-A of the Act, 1994,
learned senior counsel contended that since the order ex facie
vitiates as without power and jurisdiction inasmuch as the whip
issued by the YSRCP is not binding on the petitioner and that such
whip is not valid in law, as YSRCP did not have recognition by the
time elections to Mandal Parishad Territorial Constituency was
held on 30.03.2014 and therefore petitioner cannot be compelled
to avail remedy of appeal.  In the facts of this case, he therefore
contends, the remedy of appeal is not an alternative and
efficacious remedy and petitioner cannot be relegated to avail such
remedy.

6.      The facts which are not in dispute are that election to
Mandal Parishad Territorial Constituency was held on 30.03.2014,
that YSRCP got recognized from the Election Commission of India
on 27.06.2014.  The elections to President of Mandal Praja
Parishad was held on 04.07.2014 and whip to vote in a particular
manner by the members of YSRCP was issued by the party whip  
on 03.07.2014.  By the said date, petitioner continued to be a
member of YSRCP.  

7.      In the above factual background, whether provision of
Section 153(1) of the Act, 1994 is attracted and  whether petitioner
ought to have availed the remedy of appeal under Section 153-A of
the Act are in issue?

8.      To appreciate the contentions of the learned senior counsel,
relevant provisions which are relevant for consideration are
Sections 153, 153-A of the Act, 1994 and the Rules notified vide
G.O.Ms.No.173 Panchayat Raj and Rural Development (Elections &  
Rules) Department,   dated 10.05.2006.  Insofar as this case is
concerned, the relevant provisions of Sections 153 and 153-A read
as under:

 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 [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 punished
in the prescribed manner:
Xxxx
Xxxxx
Xxxxx

[Provided further that a member voting under this sub-
section in disobedience of the party whip shall cease to hold
office [in the manner prescribed]  and the vacancy caused by
such cessation shall be filled as a casual vacancy.]


 Section 153A - Resolution of disputes relating to
cessation for disobedience of party whip:  Where a
member against whom a proceeding that he ceased to hold
office as a consequence of the disobedience of the party whip
is issued in pursuance of the second proviso to sub-section
(1) of Section 153 and the affected member disputes the
correctness of the proceedings, he may apply to the District
Court having jurisdiction over the area in which the office of
the Mandal Parishad is situated, for a decision.
       
9.      PartIII of the Rules deal with Election of President and Vice-
President of Mandal Parishad.  According to Rule 10, a person
contesting as President or Vice-President of the Mandal Parishad,
has to claim that he is contesting on behalf of a recognized political
party and should provide authorization from the State President of
the party or a person duly authorized by the State President.
Rule 11 deals with disqualification for disobedience of party whip.
Sub-rule (1) of Rule 11 prescribes mode of appointment of whip on
behalf of the recognised political party who can issue whip of the
party to vote in a particular manner.  Such person should furnish
copy of the contents of the whip issued by him and the
acknowledgement obtained from the members belonging to the
party to the Presiding Officer.  According to sub-rule 4, any
member of the Mandal Parishad elected on behalf of the recognized
political party shall cease to be a member of the Mandal Parishad
for disobeying the directions of the party whip so issued, in the
manner provided.   Sub-rule (5) vests power in the Presiding Officer
to take consequential action on a complaint given by party whip
and to pass appropriate orders.

10.     Neither the Act nor the rules referred to above defined the
word recognized political party.   It does not prescribe the method
of granting such recognition.  It is not disputed by learned
counsels appearing for respective parties to the case that the
recognition of political party for the purpose of applying various
provisions of Act, 1994 is based on the recognition accorded by the
Election Commission of India.  The Election Commission of India
accorded recognition to YSRCP as a political party on 27.06.2014.
Thus, before the election to the President of Mandal Praja
Parishad, YSRCP was recognized by the  Election Commission of  
India.  Therefore, YSRCP answers the description of recognized
political party  as envisaged by Section 1953 of the Act.
11.     On a careful reading of the provision under Section 153,
I am of the considered opinion that a person suffers
disqualification when he acts against party whip represented by
him on a particular day.   If a MPTC member belonging to a
recognised political party participates in the election to the post of
President and gets elected contrary to whip issued by said party,
and if it is established that whip was violated, such person is liable
to be disqualified not only as President but also as member of
MPTC. By the time the elections to the Mandal Parishad President
was held i.e., on 04.07.2014, YSRCP was already recognized as
political party i.e., on 27.6.2014.   On 03.07.2014, Whip was
issued.  The said whip is binding on the petitioner. In disobedience
of the said whip, petitioner contested the election to the post of
President representing Telugu Desam Party and voted against the
whip.  Thus, on 04.07.2014 petitioner earned disqualification as
prescribed in Section 153(1) of the Act, 1994.  As per Section
153(1) of the Act and the Rules made there under, a complaint was
made by person authorised to issue whip of YSRCP on 4.7.2014.
On receipt of complaint from YSRCP, procedure envisaged was set
in motion by Presiding Officer to disqualify petitioner as President
of MPP and as MPTC member.  The impugned decision is in  
accordance  with the mandate of Section 153 and the rules made
thereunder.  The provision is express and clear leaving no
ambiguity. Thus, such disqualification having been earned by
petitioner on 04.07.2014, by which time, YSRCP was already
recognized as political party,  there was no error much less patent
error in exercise of jurisdiction by the Presiding Officer of the Zilla
Parishad warranting interference by this Court in exercise of
extraordinary jurisdiction under Article 226 of the Constitution of
India.
12.     Against order of disqualification under Section 153-A of the
Act, 1994, right of appeal to the District Court is provided.  Section
153-A is applicable on an order passed disqualifying a person as
President of MPP and a member of MPTC in accordance with the  
second proviso to Section 153(1) of the Act.  It is not the case of
petitioner that the remedy of appeal is not an effective and
efficacious remedy.  Petitioner challenges order of disqualification
on the ground that YSRCP was not a recognised political party
when she was elected as member of MPTC and therefore question  
of issuing a whip its disobedience and consequential
disqualification does not arise.  As contended by the learned senior
counsel, the writ petition is instituted on the premise that since
the YSRCP was not a recognized political party when the election to
the Mandal Parishad Territorial Constituency was held on
30.03.2014, the order impugned ex facie vitiates and, therefore,
petitioner cannot be compelled to avail remedy of appeal.  The date
of earning disqualification is crucial to applying provision in
Section 153 and not the date of election as MPTC member.  By the
date of election i.e., 4.7.2014,YSRCP was recognised as political
party.    Thus, the contention of petitioner has no merit and there
is no error in exercising jurisdiction by presiding officer.  Once,
petitioner failed to cross this hurdle, petitioner has to avail remedy
of appeal to agitate all other grounds against her disqualification.

13.     It is settled principle of law from long line of precedents from
Supreme Court as well as this Court and needs no reiteration that
though mere availability of an alternative remedy is not a bar to
entertain a writ petition under Article 226 of the Constitution of
India, ordinarily when an alternative and efficacious remedy by
way of appeal is provided by the statute, the writ Court do not
entertain the writ petition.    Ordinarily when statutorily engrafted
right of appeal is available, question of not availing the said remedy
and invoking the jurisdiction of this Cour under Article 226 of the
Constitution of India does not arise.     The extraordinary
jurisdiction under Article 226 of the Constitution of India can be
exercised when right of a citizen is affected by a decision/order of
statutory authority and there is no other effective redressal
mechanism available to ventilate the grievance. Under Section 153-
A of the Act, forum to prefer appeal against disqualification is the
District Court.  Thus, it cannot be said that the remedy of appeal is
not effective and efficacious.  Moreover, in exercise of power of
judicial review under Article 226 of the Constitution of India, is
limited and the writ Court cannot sit and consider the issues as
appellate authority, whereas the appellate Tribunal can go into all
aspects  concerning the claim.
14.     In Singam Satyanarayana (cited supra) bench of this Court
held that Whip contemplated under Section 153 of the Act, 1994
can only be issued only by a recognized political party.  As noticed
from the facts of the said case, the election to the Mandal Praja
Parishad took place on 03.07.2001.  TRS party applied for
recognition to the Election Commission for registration as a
political party on 12.06.2001.  On 21.08.2001, TRS Party was
registered as a political party.  After the general elections to the
State Legislative Assembly in April, 2004, party was recognized as
political party.  Thus, by the time, when the election to the Mandal
Praja Parishad was held in the year 2001, TRS party was not a
recognized political party.  It is thus seen that the facts in issue in
the said case are different from the facts in the present case.
Thus, the said decision does not come to the aid of the petitioner.

15.            I therefore see no merit in the contention urged by the
learned senior counsel and writ petition is liable to be dismissed
and accordingly dismissed.  However, since writ petition is
dismissed on the ground that petitioner has effective and
efficacious remedy of appeal, reasons assigned and views
expressed above, are only for the purpose of consideration of the
issue on maintainability of the writ petition and it is made clear
that if petitioner prefers an appeal under Section 153-A of the Act,
1994, the competent Court shall consider the grounds as may be
urged in the said appeal and issues that may be raised by rival
parties, uninfluenced by the observations made by this Court in
this judgment.  As and when such appeal is filed, the District
Court shall consider the same and dispose of the appeal as
expeditiously as possible.

        Miscellaneous petitions if any pending in the writ petition
shall stand closed.   No costs.
_________________________  
JUSTICE P.NAVEEN RAO    
Date :3.8.2015

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