ORDER
Motilal. B. Naik, J
1. A writ of certiorari catling for records relating to G.O.Ms.No.138, PR, RD&R (Elect.III) Department, dated 15-3-1995 is sought and to quash the same and for a consequential direction to the respondents to reinstate the petitioners as MPTC Members of Gollapudi and Siripuram (KG) respectively of Vaira Mandal in Khammam District.
2. There are two petitioners before us. According to them they contested for the Mandal Parishad Territorial Constituencies of Gollapudi and Siripuram (KG) respectively. They contested on Telugu Desam Party ticket. Elections were held on 10-3-1995. According to these petitioners, in Vaira Mandal of Khammam District there are 13 MPTC
Members, out of 13, 5 belong to CPM Party, 3 belong to Telugu Desam Party, 4 belong to Congress and 1 independent candidate.
3. On 14-3-1995 the District Collector issued notification to elect the co-opted Members as well as the Mandal President and Vice-President. In the same notification it was also informed that at 10-00 a.m. on 18-3-1995 interested candidates have to file their nomination papers for the Co-opted Member which would scrutinised between 10-00 a.m. and 11.00 a.m and the results would be declared at 1-00 p.m. It was further indicated in the notification that election to the posts of President and Vice-President would also be held on the same day at 3-00 p.m. and the said elections would be held simultaneously. The 2nd respondent has also issued notification in Form No.IV-A on 18-3-1995.
4. According to the petitioners one Patan Jhon Khan contested as Co-opted Member on TDP ticket. These petitioners and 3rd respondent seem to have voted in favour of the Co-opted Member. Apart from them, the members belonging to CPM .Party also supported the candidature of Patan John Khan. As a result of majority voting in favour of Khan, he was declared elected as Co-opted Member. According to the petitioner, the District TDP President instructed all the TDP Members to support and vote in favour of CPM candidate for the post of President and TDP candidate for the post of Vice-President. As per the instructions these petitioners have voted in favour of CPM candidate for the post of Mandal President and the said CPM candidate, Sri L. Kamal Raj was elected.
5. According to the petitioners, there was no whip as such issued by any party authorities instructing the petitioners to vote to a particular candidate. However, through the impugned order, which was issued by the 2nd respondent in Form V-C it is informed that they ceased to be the members of the Mandal Parishad Territorial Constituencies of
Gollapudi and Siripuram (KG) on the ground that they disobeyed the whip of the party and voted in favour of CPM candidate during the time of election to the post of President which was held on 18-3-1995. These petitioners allege that in the absence of any whip being issued by the authorised party person issuance of the impugned proceedings declaring that they ceased to be the members of the MPTC is unwarranted and contrary to the provisions contemplated in the Andhra Pradesh Conduct of Election of Member (Co-opted) and President/Vice-President of Mandal Parishad and Member (Co-opted) and Chairman/Vice-Chairman of Zilla Parishad Rules, 1994 (for short “the Rules”) and therefore they are before this Court seeking appropriate direction.
6. On behalf of respondents 1 and 2 one common counter has been filed and on behalf of the 3rd respondent separate counter has also been filed. The 3rd respondent being the Whip of the Telugu Desam Party. In the counter filed by the 3rd respondent it has been pleaded that he has issued whip one day prior to the date of election and intimated to all the candidates belonging to TDP requiring them to vote for the TDP candidate during the election to the post of Mandal President. The 3rd respondent also stated that under Section 153 of the A.P. Panchayat Raj Act, 1994 the members who disobeyed the whip ceased to hold the office and therefore the 2nd respondent is justified in issuing the impugned proceedings which is in accordance with the provisions of the Act.
7. In the counter filed by the 2nd respondent, it is stated at Page 3 that he did receive a communication from the 3rd respondent who claims to be the whip to the effect that a whip has been issued on 17-3-1995.
8. On the basis of the averments made in the counter, the learned Government Pleader for Panchayat Raj representing respondents 1 and 2, states that when the requirement under
sub-rule (6) of Rule 13 is complied with, the impugned order passed by the 2nd respondent is proper and the petitioners cannot have any ground. Supporting this contention of the learned Government Pleader, Sri J. V. Prasad, learned Counsel appearing on behalf of the 3rd respondent, states that in view of the counter filed by the 3rd respondent who was indicated that whip was issued and intimation was sent to the presiding Officer as required under sub-rule (6) of Rule 13, the impugned proceedings are in accordance with Section 153 and therefore no fault could be found with.
9. On the contrary, Sri B. Viswanatha Reddy, learned Counsel for the petitioners, rightly contends that there is no intimation individually to the petitioners as to issuance of whip, secondly even if there is issuance of a whip, the 2nd respondent shall receive such intimation of issuance of whip one day prior to the election i.e., on 17-3-1995 around 11.00a.m. learned Counsel states that the record placed before the Court fails to disclose that the 3rd respondent has issued any intimation one day prior to the election i.e., on 17-3-1995 and contends that the order issued cannot be sustained. Even otherwise, learned Counsel says that no notice has been issued by the 2nd respondent prior to the issuance of the impugned proceedings and as such the impugned action violates principles of natural justice and on this count also the learned Counsel attacks the order and seeks for setting aside the order. In the wake of the submissions made by both the Counsel, the learned Government Pleader was required to place the record before us to satisfy the bone of contention made on behalf of the petitioners that no whip was issued and that the intimation as required under sub-rule (6) of Rule 13 as provided in G.O.Ms.No.138, PT, RD &R (Elec.III) Department, dated 15-3-1995 has not been issued one day prior to the election. The learned Government Pleader has accordingly placed the record before us. We have perused the record. We did find that an intimation has been sent to the
Presiding Officer by the Whip of the party on 18-3-1995 intimating the members of the party to vote to a particular candidate. This fact is verified from Page 89 of the file placed before us by the learned Government Pleader. At page 93 also similar intimation is found said to have been issued to the members on 18-3-1995. Page 95 also discloses similar intimation was sent to the members but the date of intimation is not recorded in this intimation found at page 95.
10. Though the 2nd respondent claimed that the 3rd respondent has sent an intimation to him on 17-3-1995 to the effect that whip has been issued by him to the members of the party to vote to a particular candidate, we arc unable to trace the said submission made by the 2nd respondent through the record. We are therefore, inclined to say that the 2nd respondent is not disclosing the facts to the Court.
11. The requirement under sub-rule (6) of Rule 13 says as under :
“Every recognised political party may appoint on behalf of the political party a whip and intimation of such appointment shall be issued by the Slate President or a person authorised by him under his seal and such intimation shall be sent to the Presiding Officer to reach him on or before 11.00 a.m. on the day preceding the day of election to the office of the President Vice-President of the Mandal Parishad.”
12. This rule leaves no doubt in our mind to say that the intimation by the authorised person to be sent to the Presiding Officer shall reach the Presiding Officer one day in advance i.e., around 11.00 a.m. prior to the holding of the election.
13. In this case, the date of election was scheduled on 18-3-1995. As is evident from the record, the intimation has been sent by the 3rd respondent to the 2nd respondent only on 18-3-1995. There is no acknowledgment by the Presiding Officer to show that the intimation
which is dated 18-3-1995 issued by the 3rd respondent is received even on 18-3-1995. We arc unable to accept the correctness about the intimation sent by the 3rd respondent to the 2nd respondent even on 18-3-1995. Even assuming that the 2nd respondent has received the intimation issued by the 3rd respondent on 18-3-1995, that intimation, in our view, is not in compliance of sub-rule (6) of Rule 13 which says that the intimation shall be received by the Presiding Officer on or before 11.00 a,m, on the day preceding the day of election to the office of the Prcsident/Vice-President of the Mandal Parishad. The impugned order, therefore, is liable to be set aside on this ground alone and we accordingly do so.
14. Though the learned Counsel for the petitioners contended that there is no proof as to whether the 3rd respondent was appointed as Whip by the party leader and that there is no proof to show that any notice has been issued to the petitioners by the 2nd respondent, before issuing the impugned proceedings, in view of the lacuna found by us in the compliance of the procedure laid down under sub-rule (6) of Rule 13 and the impugned order being set aside by us, we do not think it necessary to deal with these contentions as we have already held that the respondents have not complied with the provisions contemplated under sub-rule (6) of Rule 13 of the Rules.
15. In the result, the writ petition is allowed, but in the circumstances, without costs.
