Ayyavari Narayana Vs. State Election Commissioner, Government of Andhra Pradesh and ors. - Court Judgment

Excerpt:
- orderlingaraja rath, j.1. the petitioner has come before us assailing the communication from the collector dated 3-3-97 in proceedings roc. no. e1/3718/95-1 directing the petitioner to have ceased as ward member from ward nos. iii and v. the order is purported to have been passed in exercise of powers under rules (3) and (4) of g.o.ms. no. 135, pr rd & r (elec.iii) department, dated 13-3-95.2. in the counter-affidavit, it is submitted by respondent no.2-district collector that the petitioner was elected as member from both the wards and as the petitioner did not exercise his option as to which ward he shall retain, the collector has passed orders ceasing him as ward member from both the wards. on the other hand the petitioner contends that he was never elected from ward no. iii and was elected from ward no. v, and that he has been wrongly shown as elected from ward no. iii.3. section 234 of a.p. panchayat raj act, 1994 reads as follows:'prohibition of holding dual offices and vacation of seats - (1) no person shall be entitled to contest in the elections to the offices of member of the gram panchayat from more than one ward or to the office of the member of the mandal parishad or zilla parishad from more than one territorial constituency. (2) no person shall be a member of the gram panchayat, member of the mandal parishad or zilla parishad simultaneously and if he is so elected, he shall retain only one office and vacate the other office or offices in the manner prescribed. (3) where a person is elected to more than one office of member of the gram panchayat or mandal parishad or zilla parishad and sarpanch or president or chairman he shall retain one office and vacate the other office or offices in the manner prescribed except when his continuance as member of the mandal parishad or zilla parishad is necessary to continue as president or as the case maybe the chairman thereof.'4. hence there is a specific statutory bar for a person to contest for the office of the member of the gram panchayat from more than one ward. it is admitted by the petitioner that in fact, he had contested from two wards. since the contest itself was illegal, as to what would be the effect if he is permitted to contest from both the wards and either gets elected from both the wards or gets elected from one ward is a question which may arise for consideration. rules (3) and (4) of g.o.ms. no. 135 are never meant to apply to the present case. rule (3) is meant to govern cases where a person has been elected for offices which are in different tiers. it makes the provision of his exercising option to retain one of the posts relinquishing the other, and if no option is exercised within 15 days, the district collector is empowered to notify the office seat of the highest tier as the office which such person shall continue to hold. the rule does not authorise the collector to issue notification declaring the person to have ceased from both the offices. he can only direct his ceasing from the office of the lower tier. the impugned order as such is not in accordance with the rules, and hence, cannot be sustained.5. on the question as to whether the petitioner could have contested from the two wards, and it is his case that he was elected from one ward, but the case of respondent no. 2 is that the petitioner had been elected from both the wards, we do not propose to express any view now and leave it open, as such question has not been raised before us. the writ petition is disposed of accordingly. no costs.

Judgment:
ORDER

Lingaraja Rath, J.

1. The petitioner has come before us assailing the communication from the Collector dated 3-3-97 in proceedings Roc. No. E1/3718/95-1 directing the petitioner to have ceased as Ward Member from Ward Nos. III and V. The order is purported to have been passed in exercise of powers under Rules (3) and (4) of G.O.Ms. No. 135, PR RD & R (Elec.III) Department, dated 13-3-95.

2. In the counter-affidavit, it is submitted by respondent No.2-District Collector that the petitioner was elected as member from both the wards and as the petitioner did not exercise his option as to which ward he shall retain, the Collector has passed orders ceasing him as Ward Member from both the wards. On the other hand the petitioner contends that he was never elected from Ward No. III and was elected from Ward No. V, and that he has been wrongly shown as elected from Ward No. III.

3. Section 234 of A.P. Panchayat Raj Act, 1994 reads as follows:

'Prohibition of holding dual offices and vacation of seats - (1) No person shall be entitled to contest in the elections to the offices of member of the Gram Panchayat from more than one ward or to the office of the member of the Mandal Parishad or Zilla Parishad from more than one territorial constituency.

(2) No person shall be a member of the Gram Panchayat, member of the Mandal Parishad or Zilla Parishad simultaneously and if he is so elected, he shall retain only one office and vacate the other office or offices in the manner prescribed.

(3) Where a person is elected to more than one office of member of the Gram Panchayat or Mandal Parishad or Zilla Parishad and Sarpanch or President or Chairman he shall retain one office and vacate the other office or offices in the manner prescribed except when his continuance as member of the Mandal Parishad or Zilla Parishad is necessary to continue as President or as the case maybe the Chairman thereof.'

4. Hence there is a specific statutory bar for a person to contest for the office of the Member of the Gram Panchayat from more than one ward. It is admitted by the petitioner that in fact, he had contested from two wards. Since the contest itself was illegal, as to what would be the effect if he is permitted to contest from both the wards and either gets elected from both the wards or gets elected from one ward is a question which may arise for consideration. Rules (3) and (4) of G.O.Ms. No. 135 are never meant to apply to the present case. Rule (3) is meant to govern cases where a person has been elected for offices which are in different tiers. It makes the provision of his exercising option to retain one of the posts relinquishing the other, and if no option is exercised within 15 days, the District Collector is empowered to notify the office seat of the highest tier as the office which such person shall continue to hold. The rule does not authorise the Collector to issue notification declaring the person to have ceased from both the offices. He can only direct his ceasing from the office of the lower tier. The impugned order as such is not in accordance with the Rules, and hence, cannot be sustained.

5. On the question as to whether the petitioner could have contested from the two wards, and it is his case that he was elected from one ward, but the case of respondent No. 2 is that the petitioner had been elected from both the wards, we do not propose to express any view now and leave it open, as such question has not been raised before us. The writ petition is disposed of accordingly. No costs.