M K AZAD Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In these two petitions under Art. 226 of the Constitution of India by the Executive Engineers in the Panchayat Raj (Engineering) Department, Government of Andhra Pradesh, the orders of the Government in G. O. Rt. No. 994 PR (Estt. 1) Department dated 29-7-1983 placing them under suspension with immediate effect in Dublic interest pending enquiry in o irregularities alleged to have been committed in the implementation of the Netherlands Assistance Programme and in the transactions relating to the purchases of material for the said programme project are challenged. The writ petitioners question the constitutional validity of Art. 371D of the Constitution of India and pray for the issue of a writ of mandamus to quash the impugned G. O. and to direct the Govt, to forbear from giving effect to it and for an order suspending the said G. O. pending the disposal of the writ petition. Having (regard?) to the importance of the question involved, even at the admission stage these writ petitions were directed to be posted before a Division Bench. Before the Division Bench it was noticed that several writ petitions questioning the constitutional validity of Art. 371D were already admitted and were pending disposal by the Court. The writ petitions were, therefore, admitted. When the petitioners moved for the suspension of the impugned order the Division Bench found divergent opinions expressed by two earlier Division Benches of this Court one in Kasi Visweswara Rao V/s. Government of Andhra Pradesh, 1980 1 AndhWR 36 and the other in Dr. K. M. Lakshmana Rao V/s. Govt of Andhra Pradesh, 1984 LabIC 223 on the question whether this court could, in exercise of its jurisdiction under Art. 226 of the Constitution of India grant any interim relief by way of suspension or otherwise of the order impugned pending the disposal of the writ petition challenging the constitutional validity of Art. 371-D.

(2.) In Kasi Visweswara Rao V/s. Govt. of Andhra Pradesha Division Bench of this court even while holding that in entertaining the writ petitions challenging the validity of Art. 371D of the Constitution of India, the Court is in no way acting contrary to the mandate contained in Cl. 4 of Art. 368 of the Constitution of India, proceeded to declare that until Art. 371D of the Constitution of India is declared void and inoperative by a competent court, or its operation is suspended Dendente lite, the prayers in the miscellaneous matters could not be granted. According to the Division Bench "so long as Art. 371D is in force, the only two forums where the petitioners can obtain such reliefs as they are now asking for in hese Miscellaneous Applications are, the Supreme Court and the Andhra Pradesh Administrative Tribunal.

(3.) A later Division Bench in Dr. K. M Lakshmana Rao V/s. Govt, of Andhra Pradesh, 1984 LabIC 223 observed that as the constitutional validity of the provisions of Art. 371-D are ques ioned a writ petition under Art. 226 of the Constitution can be entertained. One of the learned Judges observed that "it is well settled principles of interpretation of statutes that if the Legislature enables something to be done, it gives power at the same ime, by necessary implication to do every thine which is dispensable for the purpose of carrying out the purposes of the Act. In other words, when the mention of the Act in conferring an express power which is likely to bo frustrated by not construing it as necessary implying another incidental power however substantial in nature, the same must be implied in order not to bring out frustration of the express intention of the Legislature." The learned Judge concluded "we have no manner of doubt that when this court has power to admit the writ petition in spite of the prohibition contained in Cl. (7) of Art. 371-D as the verv constitutional validity of the article itself is Questioned, it cannot be said that this Court has no power to pass interlocutorv order of staying or suspending the impugned order in the interest of justice and for maintenance of status quo during the pendency of the writ petition. We would be not only acting against the clear implication of Article 371-D of the Constitution, but it would also clearly amount to foresaking our responsibility to preserve and protect the Constitution." The other learned Judge. constituting the Division Bench observed :