WP/36871/2014 of Smt.Ashala Susheela, Vs The Commissioner, on 30 December 2014

ORDER:

Heard the learned counsel for the petitioner, SriD.Jitender Rao and Sri K.Krishna Vijay Azad, learnedcounsel 4[th] respondent.

2. In this Writ Petition, the petitioner hasquestioned Order dt.31-10-2014 in I.A.No.1079 of 2014 inO.P.No.126 of 2014 of the II Additional District Judge,Karimnagar at Jagtial dismissing the said I.A.

3. The facts leading to the filing of the case areas under:

i)

The petitioner had contested from WardNo.22 of Metpally Municipalilty ofKarimnagar District as Indian NationalCongress Party candidate in the electionswhich were conducted by the State ElectionCommission on 30-03-2014 and won thesaid election.

ii)

Thereafter, on 03-07-2014, elections tothe Offices of Chair Person and Vice ChairPerson of the said Municipality were held. Inthe said election, the candidate proposedby the Indian National Congress Party did not win and the persons proposed by theTelangana Rastra Samithi Party won.

iii)The petitioner was served a show causenotice dt.05-07-2014 by the 2[nd] respondentstating that the 4[th] respondent, the whipappointed by the Indian National CongressParty, had given a complaint dt.03-07-2014stating that the said party had directed thepetitioner and others to vote in favour of thecandidates proposed by the said Party inthe above election held on 03-07-2014; thatthe petitioner had refused to receive thewhip issued by the 4[th] respondent informingthe petitioner to vote for the said candidates;that the petitioner did not vote in favour ofthe candidates proposed by the said partyand thus violated the whip issued by 4[th]respondent; and therefore the petitionerought to be disqualified as a ward member.

iv)The petitioner gave an explanation to theabove show cause notice on 10-07-2014denying all the allegations leveled againsthim and contending that no whip wasissued by the said party as alleged and hewas never served the said whip by 4[th]

respondent. Other factual contentions werealso raised.

v)Vide proceedings No.F1/169/2014 dt.23-08-2014, the 2[nd] respondent passed ordersholding that the petitioner had violated thewhip issued by 4[th] respondent on behalf ofthe Indian National Congress Party and sheincurred disqualification under the proviso tosub Section (1) of Section 23 of the APMunicipalities Act, 1965 read with sub rule 8(i) and (ii) of Rule 6 of the AP MunicipalitiesAct (Conduct of Election of Chairperson andVice Chairperson) Rules, 2005.

vi)

Petitioner questioned the said decisionbefore the II Additional District Judge,Karimnagar at Jagtial (for short ‘the DistrictCourt’) by filing O.P.No.126 of 2014 underSection 23-A of the Act.Karimnagar at Jagtial (for short ‘the DistrictCourt’) by filing O.P.No.126 of 2014 underSection 23-A of the Act.

vii)In the said O.P., petitioner filed I.A.No.1079of 2014 to suspend or stay the operation ofthe proceedings No.F1/169/2014 dt.23-08-2014 of 2[nd] respondent pending disposal ofthe said O.P.of 2014 to suspend or stay the operation ofthe proceedings No.F1/169/2014 dt.23-08-2014 of 2[nd] respondent pending disposal ofthe said O.P.

viii)By order dt.31-10-2014, the District Courtdismissed the said I.A. stating that the maindismissed the said I.A. stating that the main

O.P. itself can be disposed of if thepetitioner cooperates with the Court and thatsince Section 23-A of the Act states that theDistrict Court can be approached for a“decision” by a person who has ceasedhold office for disobedience of party whip,such decision can only be a “final decision”and not an interim one. It observed that ifthe said I.A. is ordered, then such reliefwould amount to a final decision. Althoughthe District Court did not discuss thetenability of the contentions raised by thepetitioner in the said I.A., it noted that noprima facie exists in favour of the petitionerand that there is no balance of conveniencein his favour either. It also observed that therespondents had reported ready and haveagreed to cooperate with the disposal of themain petition; that if the I.A. is ordered, therespondents would be at receiving end; andhardship would be caused in the day to dayadministration and affairs of the MetpallyMunicipality.

ix)The petitioner has filed this Writ Petition assailing the said order.

4. Learned counsel for the petitioner

contended that the petitioner had raised several issues inthe election O.P. including the issuance of the party whipby 4[th] respondent and service of such alleged whip onpetitioner, but the Court without going into merits of thecase dismissed the I.A. He contended that the burden ofproving that the petitioner was served with the whip lay onthe respondents and this burden has not been dischargedby them. He contended that the view of the District Court cannot grant interim relief or consider application forinterim relief on the ground that Section 23-A of the Actonly permits it to grant final relief and not interim relief iscontrary to law and the impugned order suffers from anerror apparent on the face of record and deserves to beset aside. He prayed that the matter be remitted back tothe District Court to consider the I.A. No.1079 of 2014 filedby the petitioner in O.P.No.126 of 2014 in accordance withlaw without being influenced by the reasons given by it inthe impugned order.

5. The learned counsel for 4[th] respondent fileda counter reiterating that the petitioner had violated thewhip issued by him to vote in the election to the office ofthe Chairperson/Vice Chairperson of MetpallyMunicipality; that the Writ Petition is not maintainable sincethe petitioner has not impleaded the District Court as aparty to the Writ Petition; that the present case is coveredby the order dt.10-12-2014 in W.A.No.1386 of 2014

and W.A.No.1388 of 2014; and the word ‘decision’ used inSection 23-A of the Act means only final decision and notinterim decision. Certain allegations on facts are alsomade against the petitioner which are not necessary to beconsidered for the disposal of this case.

6. Therefore the point which arises forconsideration is “whether the impugned order issustainable and the reasoning given by the District Courttherein is correct in law or not?”

7. Section 23A of the Act states:

“Section 23-A. Resolution ofdisputes relating to cessation fordisobedience of party whip:- Where amember ceased to hold office fordisobedience of the party whip, he may applyto the District Court having jurisdiction overthe area in which the office of Municipality issituated for a decision.”

Procedure

8. I will first decide whether the term ‘decision’mentioned in Section 23-A of the Act means only that theDistrict Court can grant final decision and cannot grantinterim relief.

9. While the petitioner contends that the DistrictCourt can grant interim relief and there is no prohibition togrant interim relief in addition to final relief, the 4[th]respondent contends otherwise.

10. It is not disputed that the challenge to the proceedings dt.23-08-2014 of 2[nd] respondent was madeby the petitioner to the District Court invoking Section 23-Aof the Act. Thus the proceedings in the O.P. No.126 of2014 are continuing in a Court of Civil Jurisdiction. Section 141 of Civil Procedure Code, 1908 states:

“141. Miscellaneous proceedings.- Theprocedure provided in this Code in regard to suitsshall be followed, as far as it can be madeapplicable, in all proceedings in any court of civiljurisdiction.

Explanation: In this section, the expression“proceedings” includes proceedings under Order IX,but does not include any proceeding under article226 of the Constitution”

11. In view of the above provision, the procedureprovided in the Code in regard to suits has to be followedby the District Court. Since there is power conferred bythe Civil Procedure Code, 1908 on Civil Courts to considerand grant interim relief invoking Sec.151 CPC/Or.39 R.1and 2 CPC, and since the O.P. is pending in a Court ofCivil jurisdiction, it has to be held that on account ofSec.141 CPC, the District Court also has got power togrant interim relief.

12. The matter can be considered from anotherangle also.

13. The power conferred on the District Courtunder Sec.23-A of the Act to decide the issue, in my opinion,carries with it, by necessary implication all powers andduties incidental and necessary to make the exercise of those powers effective.

I n ITO v. M.K. Mohd. Kunhi[[1]],the

14. Supreme Court had to consider the question whether theAppellate Income Tax Tribunal had the power, under therelevant provisions of the Income Tax Act, 1961, to staythe recovery of the realization of the penalty imposed bythe departmental authorities on an assessee during thependency of an appeal before it. Section 254 of theIncome Tax Act stated:

“Sec. 254. Orders of Appellate Tribunal.— (1) TheAppellate Tribunal may, after giving both the partiesto the appeal an opportunity of being heard, passsuch orders thereon as it thinks fit.”

Section 255 gives the procedure of the AppellateTribunal. Sub-sections (5) and (6) of this section needalone be noticed.

“255. (1)-(4) * * *

(5) Subject to the provisions of this Act, theAppellate Tribunal shall have power to regulate itsown procedure and the procedure of Benches thereofin all matters arising out of the exercise of its powersor of the discharge of its functions, including theplaces at which the Benches shall hold their sittings.

(6) The Appellate Tribunal shall, for the purpose ofdischarging its functions, have all the powers whichare vested in the Income Tax Authorities referred to inSection 131, and any proceeding before theAppellate Tribunal shall be deemed to be a judicialproceeding within the meaning of Sections 193 and228 and for the purpose of Section 196 of the IndianPenal Code (45 of 1860) and the Appellate Tribunalshall be deemed to be a Civil Court for all thepurposes of Section 195 and Chapter 35 of the Codeof Criminal Procedure, 1898 (5 of 1898).”

15. Section 131 gave to the Income Tax Officer,the Appellate Assistant Commissioner and theCommissioner the same powers as are vested in the courtunder the Code of Civil Procedure when trying a suit inrespect of the matters specified in the section. But thesepowers related to discovery and inspection; enforcing theattendance of witnesses; compelling production of booksof account etc.; issuing commissions and allied matters.The provisions of the Act or the Income Tax AppellateTribunal Rules, 1963 powers have not been expresslyconferred upon the Appellate Tribunal to stay proceedingsrelating to the recovery of penalty or tax due from anassessee. But the Supreme Court held that the powerswhich have been conferred by Section 254 on theAppellate Tribunal with widest possible amplitude mustcarry with them by necessary implication all powers andduties incidental and necessary to make the exercise ofthose powers fully effective. It held that the AppellateTribunal must be held to have the power to grant stay asincidental or ancillary to its appellate jurisdiction. Itobserved :

“4. It is a firmly established rule that anexpress grant of statutory power carries with it bynecessary implication the authority to use allreasonable means to make such grant effective(Sutherland Statutory Construction, 3rd Edn.,Articles 5401 and 5402). In Domat's Civil LawCushing's Edn., Vol. 1 at p. 88, it has beenstated:

“It is the duty of the Judges to apply the laws, not only to what appears to be regulated by theirexpress dispositions, but to all the cases wherea just application of them may be made, andwhich appear to be comprehended either withinthe consequences that may be gathered from it.”Maxwell on Interpretation of Statutes, 11th Edn.,contains a statement at p. 350 that “where an Actconfers a jurisdiction, it impliedly also grants thepower of doing all such acts, or employing suchmeans, as are essentially necessary to itsexecution. Cui jurisdictio data est, ea quoqeconcessa esse videntur, sine quibus jurisdictioexplicari non potuit”.

16. I am of the opinion that the ratio thereinequally applies to the present case, and that the powerconferred on the District Court to finally decide the issue ofcessation of office of the petitioner includes the power togrant interim relief also and such a power has to beinferred by necessary implication.

17. Of course the District Court, whileconsidering the application for interim relief, has toconsider keep in mind factors like prima-facie case,balance of convenience and irreparable injury.

18. The learned counsel for the 4[th] respondenthas cited Mukhtiar Singh and another Vs. State ofPunjab & Sohan Lal Vs. Satnam Singh and others[[2]],M/s.Ratan and Co., Vs. P.Narayanan[[3]]and KanakSunder Bibi Vs. Ram Lakhan Pandey and others[[4]]insupport of his contention that the word ‘decision’

Ratio decidendi

19. There is no quarrel with the aboveproposition but the question here is whether the power tofinally decide includes the power to grant interim relief. Therefore these decisions have no application.

20. The learned counsel for 4[th] respondent alsocited G.Veerappa Pillai, Proprietor, Sathi Vilas BusService, Porayar, Tanjore District, Madras Vs. Ramanand Raman Ltd., Kumbakonam Tanjore District andothers[[5]]a n d M/s.Baburam Prakash ChandraMaheshwari Vs. Antarim Zila Parishad now Zilar[[6]]Parishad, Muzaffarnagaon the scope of exercise ofjurisdiction under Article 226 of the Constitution of India. In the said decisions, it was held that existence of astatutory remedy would not affect the jurisdiction of theHigh Court to issue a Writ and that the Court can interfereif subordinate Tribunals or bodies or officers act whollywithout jurisdiction or in excess of it, or in violation ofprinciples of natural justice, or refuse to exercise ofjurisdiction vested in them, or there is an error apparent onthe face of record, and such act, omission, error or excessas a resulted in manifest in justice. These are well settledprinciples governing the exercise of jurisdiction underArticle 226 of the Constitution of India. In the presentcase, the view taken by the District Court that it has no power to grant interim relief and it can only grant final reliefunder Section 23-A of the Act, in my opinion, is a case ofrefusal to exercise jurisdiction vested in it and therefore itsorder is liable to be interfered with under Article 226 of theConstitution of India.

21. In the impugned order the District Court heldthat the petitioner had no prima facie case or balance ofconvenience or that if such order is granted, therespondents would be at receiving end. But it has givenno reason for this conclusion. Therefore on this groundalso, the impugned order cannot be sustained.

22. The learned counsel for the petitioner alsocontended that the District Court which had passed theimpugned order ought to be impleaded as a party in theWrit Petition. He placed reliance on Udit Narain SinghMalpaharia Vs. Additional Member Board of Revenue, Bihar and another[[7]].In the said decision, it is held as adecision of a quasi judicial body such as a Tribunal canbe quashed by issuing a Writ of Certiorari and that suchauthorities ought to be added as a party to the WritPetition along with the persons affected by such decision. In that case, the Board of Revenue, Bihar State wasadded as a party but persons in whose favour it passedthe order were not impleaded in the Writ Petition filedquestioning the order. The Court held that unless theTribunal or authority which has to transmit records to the High Court is made a party, a Writ of Certiorari to quashthe order of such body cannot be done. Even in the abovedecision, the Court has stated that where the orderchallenged is of a Court which is subordinate to the HighCourt such a difficulty is not there. In the present case theorder impugned is passed by the District Court which issubordinate to this Court. Therefore the said decisioncannot help the petitioner. So the District Court need notbe impleaded as a party respondent in the Writ Petition. This contention of the counsel for 4[th] respondent istherefore rejected.

Conclusion

23. For the above reasons, the Writ Petition isallowed; the order dt.31-10-2014 in I.A.No.1079 of 2014 inO.P.No.126 of 2014 of the II Additional District Judge,Karimnagar at Jagtial is set aside; the said I.A. isremanded back to the said Court for fresh adjudication;the said Court shall, within a period of four weeks from thedate of receipt of a copy of this order, pass orders afreshin accordance with law uninfluenced by its earlier orderdt.31-10-2014. No costs.

24. As a sequel, miscellaneous petitionspending, if any, shall stand disposed of.

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JUSTICE M.S.RAMACHANDRA RAODate: 30-12-2014 kvr [1]AIR 1969 SC 430AIR 1969 SC 430

[2]AIR 1995 S.C. 686AIR 1995 S.C. 686

[3]AIR 1977 Delhi 93AIR 1977 Delhi 93

[4]AIR 1956 Patna 325 (Vol.43, C.85 Sept.) (1)AIR 1956 Patna 325 (Vol.43, C.85 Sept.) (1)

[5]AIR 1952 S.C. 192AIR 1952 S.C. 192

[6]AIR 1969 S.C. 556AIR 1969 S.C. 556

[7]AIR 1963 S.C. 786 (1)AIR 1963 S.C. 786 (1)