MALLELA BUTCHAIAH Vs. SECRETARY TO GOVT HOUSING MUNICIPAL ADMINISTRATION URBAN DEVELOPMENT DEPARTMENT ANDHRA PRADESH HYDERABAD

JUDGEMENT

(1.) An interesting question of law is raised in this Writ Petition which though knotty, could be resolved at the admission stage.

(2.) A special meeting of the Councillors of Chilakaluripet Municipality was convened on 15-6-1988 to elect the Vice Chairman. Two Councillors namely, Sri P Hari Babu and Sri M Nageswara Rao contested and the latter was declared as elected as Vice Chairman at the said meeting. Questioning the said election, the former defeated candidate filed Election Petition OP No. 153 of 1988 before the Election Tribunal ie. the learned Sub-ordinate Judge at Narasaraopet. During the pendency of the said Election Petition, Sri M Nageswara Rao the successful candidate and respondent therein, tendered his resignation to the office of Vice Chairman on 25-7-1989 and the said resignation was accepted by the Council in its resolution No. 135 dated 31-7-1989. To fill up the said vacancy, a special meeting of the said Council was once again convened and held on 7-8-1989. The petitioner in this Writ Petition was the sole candidate for the said office and he was declared as elected as there was no contest. The result of the said election was duly gazetted. OP No. 153 of 1988 was allowed on 19-3-1990 and the election of Sri M Nageswara Rao was set aside and Sri P Hari Babu was declared as duly elected. Thereafter, the 2nd respondent i.e, the Commissioner and Director of Municipal Administration, Andhra Pradesh in his Roc No. 17968/88 dated 1-9-1990 requested the 3rd respondent herein i.e, the Commissioner Chilakaluripet Municipality 'to implement the court orders passed in respect of the above election petition (OP No. 153 of 1988) and also take appropriate action accordingly'. The 3rd respondent in his proceedings in Roc No. 1728/88/G1. dated 14-9-1990 passed orders declaring 'that Sri P Hari Babu was declared as duly elected as Vice Chairman in the election held on 15-6-1988'. The petitioner is now seeking a Writ of Mandamus directing the respondents to act according to law and not to give effect to the said proceedings of respondents 2 and 3 dated 1-9-90 and 14-9-90 respectively which had the effect of removing the petitioner from the office of the Vice Chairman of Chilakaluripet Municipality.

(3.) The petitioner contends that he was duly elected as Vice Chairman of Chilakaluripet Municipality on 7-8-1989 and the same was also gazetted under sub-section (4) of Section 25 of the Andhra Pradesh Municipalities Act, 1965 (hereinafter referred to as 'the Act') which provided that "the Vice Chairman shall be deemed to have assumed office on his being declared as such" and therefore he must be deemed to have assumed office on 7-8-1989 and he had been continuing as Vice Chairman since then and his election was not challenged by any Election Petition. He relies on sub-rule (1) of Rule (11 of the Rules for Decision of Election Disputes, 1-967 (hereinafter called 'the Rules') framed under the Act which provides that 'save as otherwise provided no election held under the Andhra Pradesh Municipalities Act 1965 whether of a Councillor, Chairman or Vice Chairman, shall be called in question except by an election petition presented in accordance with these rules ......". He therefore, contends that his election as Vice Chairman cannot be questioned after this length of time and that therefore he cannot be directed to vacate the office of Vice Chairman. He further contends that he was not impleaded as a party respondent in the said OP No. 153 of 1988 and that therefore, any finding thief ein could not have the effect of vitiating or invalidating his election to the said office and the findings in the said OP were neither binding on him nor enforceable against him. He also relies on Section 26 of the Act which provides, inter alia that 'the Vice Chairman shall cease to hold office as such on the expiry of the term of office as a councillor or on his otherwise ceasing to be a councillor'. He states that he is continuing as a councillor and therefore once elected as Vice Chairman he would continue to hold office so long as he continues as Councillor. Therefore, according to him he cannot be asked to vacate the office because he was duly elected as Vice Chairman, his election as Vice Chairman was not challenged, and he continues as Councillor.