EDARA HARIBABU Vs TULLURI VENKATA NARASIMHAM
Bench: J. CHELAMESWAR,ABHAY MANOHAR SAPRE
Case number: C.A. No.-007115-007115 / 2015
Diary number: 41800 / 2014
Advocates: Y. RAJA GOPALA RAO Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7115 OF 2015
(ARISING OUT OF SLP (C) No. 36764/2014)
Edara Haribabu …….Appellant(s)
VERSUS
Tulluri Venkata Narasimham & Ors. ……Respondent(s)
WITH
CIVIL APPEAL No.7116 OF 2015 (ARISING OUT OF SLP (C) No. 36773/2014)
AND
SPECIAL LEAVE PETITION (C) Nos. 5896-5897/2015
Mudavath Manthru Naik …….Petitioner(s)
VERSUS
Edara Haribabu & Ors. ……Respondent(s)
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J U D G M E N T
Abhay Manohar Sapre, J.
In S.L.P.(c)Nos. 36764/2014 & 36773/2014
1. Leave granted.
2. These appeals are filed against the common
interim order dated 10.12.2014 passed by the High
Court of Judicature at Hyderabad for the State of
Telangana and the State of Andhra Pradesh in
W.A.M.P. No. 3416 of 2014 in W.A. No.1386 of 2014
and W.A.M.P. No. 3418 of 2014 in W.A. No.1388 of
2014 whereby while disposing of the applications
filed in these appeals, the High Court directed the
Vice-Chairperson of Zilla Praja Parishad (in short
“ZPP”), Prakasam District, ongole to discharge the
functions of the Chairperson for the office of Zilla
Praja Parishad, Prakasam District, Ongole until
further orders.
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3. In order to appreciate the issue involved in
these appeals, which lie in a narrow compass, it is
necessary to state a few relevant facts which were
taken from the record of the S.L.Ps.
4. The appellant is the duly elected member of
Zilla Parishad Territorial Constituency (in short
“ZPTC”) of Ponnaluru Mandal, Prakasam District. He
had contested this election as a candidate of Telugu
Desam Party (in short “TDP”) for Prakasam District,
Ongole. On 26.06.2014, the Election Commission for
the State of Andhra Pradesh (in short “the State
Election Commission”)-respondent No.3 herein
issued orders directing various District Collectors
including the District Collector-cum-Presiding
Officer, Prakasam District (Respondent No.2 herein)
to conduct election to the office of Chairperson and
Vice-Chairperson of the Zilla Praja Parishads (in
short ‘ZPP’) on 05.07.2014.
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5. However, the elections to the offices of
Chairperson and Vice-Chairperson of ZPP, Prakasam
District could not be held on the said date, i.e.
05.07.2014, and were accordingly postponed to a
later date.
6. On 07.07.2014, an order was issued by the
District Collector, Prakasam District (respondent
No.4 herein) requesting the State Election
Commission (respondent No.3 herein) to hold the
election on 13.07.2014.
7. On 09.07.2014, the State President of the TDP
addressed a letter to the State Election Commission
(respondent No.3) informing that one Shri Bonda
Uma Maheswara Rao, General Secretary of the TDP,
is authorized to issue Form-A and Form-B as
prescribed in Rule 22(1) of the Andhra Pradesh
Conduct of Election of Member (Co-opted), President
and Vice-President of Mandal Parishad and Members
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(Co-opted), Chairperson and Vice-Chairperson of Zila
Parishad Rules, 2006 (hereinafter referred to as “The
Rules”) and is also authorized to issue the
appointment of whip for the said elections in the
State of Andhra Pradesh. Shri Bonda Uma
Maheswara Rao then issued Form-A dated
10.07.2014 authorizing one Shri D. Janardhana Rao,
the District President of the Prakasam District TDP to
issue Form-B to the candidates set up by the TDP in
the aforesaid election insofar as ZPP, Prakasam
district was concerned and on the same day he also
informed the same to the District
Collector-cum-Presiding Officer, Prakasam District,
Ongole.
8. On 12.07.2014, Shri D. Janardhana Rao
informed the District Collector-cum-Presiding Officer
(respondent No.2) that Shri Tulluri Venkata
Narasimham (respondent No.1) has been appointed
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as whip on behalf of the TDP in relation to the
election to the office of Chairperson and
Vice-Chairperson of ZPP, of Prakasam District. Shri
Tulluri Venkata Narasimham (Respondent No.1) then
issued a whip on 12.07.2014 directing all the ZPTC
members belonging to the TDP to vote in favour of
Shri Manne Ravindra for the office of Chairperson.
On the next day, i.e. 13.07.2014, respondent No.1
issued another whip directing all the TDP members of
the ZPTC to vote in favour of Smt. P. Koteswaramma
for the office of Vice-Chairperson.
9. According to the appellant, when the whip was
issued, the appellant was not present in Ongole but
was at Hyderabad from 07.07.2014 to 12.07.2014. It
was for this reason, the appellant alleged that he
neither received nor served with the copy of two
whips which were alleged to have been issued. He
also alleged that his signature acknowledging receipt
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of the said whips were either forged or fabricated.
10. On 13.07.2014, the said elections were
conducted by the District Collector-cum-Presiding
Officer. The appellant, however, contested the
election to the office of Chairperson, ZPP, Prakasam
District as an “independent candidate” and cast his
vote in his own favour and in favour of one Shri N.
Balaji, an independent candidate for the office of
Vice-Chairperson. The appellant won the election
and was accordingly declared elected as the
Chairperson by one vote defeating Sri Manne
Ravindra, the candidate proposed by the TDP as a
candidate to the post of Chairperson.
11. This led to filing of a complaint by Shri Tulluri
Venkata Narasimham (respondent No.1) against the
appellant on 14.07.2014 before the District
Collector-cum-Presiding Officer (respondent No.2)
alleging inter alia that he was appointed as a whip by
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the TDP in relation to the said election held on
13.07.2014 and that the appellant cast his vote in
the said election in violation of the whips issued by
the TDP on 12.07.2014 and 13.07.2014.
12. On 16.07.2014, a show cause notice was issued
to the appellant calling upon him to show cause as to
why action should not be taken against him for
violating the directions issued in the whips and why
he should not be disqualified as per G.O.Ms. No. 173
dated 10.05.2014 and Section 22(5) of the Andhra
Pradesh Panchayat Raj Act, 1994 (hereinafter
referred to as “the Act”).
13. The appellant submitted his explanation on
04.08.2014 stating inter alia that he had not violated
the whips. It was also his case that he had not
received any whip and his signatures on the whips’
receipts were either fake or fabricated by someone.
He also stated that he was at Hyderabad from
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07.07.2014 to 12.07.2014 and hence did not receive
the alleged whips even if issued. He, therefore,
prayed the District Collector-cum-Presiding Officer
(respondent No.2) to conduct a detailed inquiry in the
matter.
14. By order dated 11.08.2014 in Rc.No.
P1/4598-Indirect election/13, the Presiding Officer &
District Collector, Prakasam District, Ongole
disqualified the appellant as the member of ZPTC,
Ponnaluru and directed him to vacate the office of the
Chairperson, ZPP, Prakasam Dist., Ongole.
15. On 12.08.2014, the Chief Executive Officer (in
short “CEO”), ZPP, Ongole by proceedings in
Rc.No.P1/4959/2014, directed Shri N. Balaji,
Vice-Chairperson to temporarily take over the charge
of the office of Chairperson until a new Chairperson
is duly elected.
16. Challenging the order dated 11.08.2014 passed
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by the Presiding Officer & District Collector,
Prakasam District, Ongole, the appellant filed
W.P.No. 23541 of 2014 before the High Court. Vide
order dated 22.08.2014, the High Court dismissed
the petition granting liberty to the petitioner therein
to approach the District Court by taking recourse to
the remedy available under Section 181-A of the Act.
17. The appellant accordingly filed E.O.P. No. 8 of
2014 and E.O.P. No. 9 of 2014 before the Ist
Additional District Judge, Ongole against the order
dated 11.08.2014 passed by the Presiding Officer on
the grounds pleaded therein. He also filed
I.A.Nos.1697 of 2014 in E.O.P No. 8/2014 and
I.A.No.1684 of 2014 in E.O.P No. 9/2014 to grant ad
interim injunction by suspending the order dated
11.08.2014 passed by the Presiding Officer, Ongole
in Rc. No. P1/4598-Indirect Election/B. By orders
dated 07.10.2014, the Ist Additional District Judge
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dismissed the said I.As. and declined to grant
injunction prayed by the appellant.
18. Questioning the order dated 07.10.2014 passed
by the Ist Additional District Judge, Ongole, in I.A.
No. 1697 of 2014 in E.O.P. No. 8 of 2014 & I.A.No.
1684 of 2014 in E.O.P. No. 9 of 2014, the appellant
filed W.P. Nos. 30790 and 30791 of 2014 before the
High Court of Judicature at Hyderabad for the State
of Telangana and the State of Andhra Pradesh.
19. In view of the disqualification of the appellant
herein, a representation was submitted by Mr.
Garinipudi Steeven & 24 others on 28.08.2014 to the
State Election Commission and the District
Collector-cum-Presiding Officer for conducting fresh
elections. Since the said application was not being
considered by the State Election Commission, the
abovesaid petitioners filed W.P. No. 30799 of 2014
before the High Court.
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20. The learned Single Judge of the High Court
heard W.P.Nos. 30790, 30791 and 30799 of 2014
together and by common order dated 07.11.2014,
allowed W.P. Nos. 39790 and 30791 of 2014 filed by
the appellant herein and quashed the order dated
07.10.2014 passed by the Ist Additional District
Judge. The learned Single Judge then suspended the
proceedings dated 11.08.2014 by which the appellant
was disqualified as ZPTC member and consequently
as Chairperson of ZPP. So far as W.P. No.30799 of
2014, which was filed for conducting fresh election in
view of the disqualification of the appellant herein,
was concerned, it was dismissed.
21. On 08.11.2014, the appellant addressed a letter
to the CEO, ZPPs, Prakasam District, Ongole
informing him that the order dated 11.08.2014
passed by the District Collector-cum-Presiding
Officer, Prakasam District regarding disqualification
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of his membership as ZPTC and also Chairperson of
ZPP was suspended vide order dated 07.11.2014
passed by the learned Single Judge of the High Court
in W.P. Nos. 39790 and 30791 of 2014 and hence the
appellant be allowed to resume the office of the
Chairperson, ZPP. Prakasam District.
22. The appellant accordingly on 08.11.2014
resumed the office of Chairperson and took over the
charge of the office of the Chairperson, ZPP,
Prakasam District and started conducting various
meetings and took various decisions.
23. To complete the narration of the facts, it may
here be mentioned that one Rajendra Prasad, felt
aggrieved of the order dated 12.08.2014 passed by
the CEO in Rc.No.P1/4959/2014, by which Mr. N.
Balaji Vice-Chairperson was temporarily allowed to
take over the charge of the office of Chairperson
consequent upon declaration of appellant’s
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disqualification for the post of Chairperson and filed
a writ petition bearing W.P.No.31113 of 2014 before
the High Court.
24. Vide order dated 12.11.2014, the learned Single
Judge of the High Court allowed W.P.No.31113 of
2014 filed by M.Rajendra Prasad and suspended the
proceedings dated 12.08.2014 subject to further
orders.
25. In the meantime, Shri Tulluri Venkata
Narasimham- respondent No.1 herein filed W.A.M.P.
No. 3416 of 2014 in W.A.No. 1386 of 2014 and
W.A.M.P. No. 3418 of 2014 in W.A. No. 1388 of 2014
before the High Court challenging the order dated
07.11.2014 passed by the learned Single Judge.
26. On 12.11.2014, the Chief Executive Officer
(CEO), ZPP addressed a letter in Rc.
No.P1/4598/High Court Cases/2013 to the
Commissioner, Panchayat Raj & Rural Development
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stating that pursuant to the order dated 07.11.2014
passed by the High Court, the appellant has resumed
the office of the Chairperson, ZPP, Prakasam District
on 08.11.2014. However, respondent No.1, on his
part informed that he had preferred an appeal
against the order dated 07.11.2014 before the High
Court. Though there was no interim order passed in
the writ appeals filed by respondent No.1 herein
before the High Court yet the CEO sought
clarifications from the Commissioner on this issue as
to what should be done in the case.
27. On 13.11.2014, the appellant, was constrained
to send a legal notice to the CEO to ensure
compliance of the order dated 07.11.2014 passed by
the learned Single Judge and co-operate with the
appellant to enable him to discharge the duties as
Chairperson and forthwith withdraw the clarification
letter dated 12.11.2014 sent by him to the
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Commissioner, which according to appellant was not
at all necessary.
28. On 14.11.2014, the appellant also addressed a
letter to the Commissioner against the CEO and Dy.
C.E.O. and requested him to take disciplinary action
against them. By letter dated 15.11.2014, the
Commissioner informed to the Secretary to the
Government that the appellant has resumed the
office of the Chairperson from 08.11.2014.
29. On 25.11.2014, one Shri Lakshminarayana filed
W.P. No. 36421 of 2014 seeking suspension of
proceedings dated 12.08.2014 of the CEO directing
the Vice-Chairperson to act as the Chairperson which
was already the subject matter of pending Writ
Petition No. 31113/2014. On 26.11.2014, the
appellant filed an application for bringing on record
the documents to show that he has already resumed
the office as the Chairperson pursuant to the final
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order dated 07.11.2014 passed by the learned Single
Judge in W.P. Nos. 30790 & 30791 of 2014 and has
been functioning since 08.11.2014. He, therefore,
contended that there arise no occasion to allow
anyone to resume the post of Chairperson and
secondly, no vacancy arises for the post of
Chairperson at least till the final disposal of the main
election petitions pending before the District Court.
30. The High Court, in the meantime, by order
dated 28.11.2014 in W.P. No. 36241 of 2014
suspended the proceedings dated 12.08.2014 of the
CEO by which he had directed the Vice- Chairperson
to act as Chairperson, as was already done in
identical Writ Petition No. 31113/2014 by order
dated 12.11.2014.
31. Against the said orders, i.e. order dated
12.11.2014 passed in W.P.No. 31113 of 2014 and
order dated 28.11.2014 passed in Writ Petition No.
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36241/2014, two writ appeals bearing W.A. Nos.
1484 and 1485 of 2014 were preferred.
32. On 01.12.2014, the appellant filed application
bearing WAMP No. 3690 of 2014 in W.A. No.
1386/2014 and W.A.M.P. No. 3691 of 2014 in W.A.
No. 1388 of 2014 inter alia praying for considering
the additional documents in support of his
contention that there is no vacancy for the post of
Chairperson.
33. By impugned interim order dated 10.12.2014
passed in W.A.M.P. No. 3416 of 2014 in W.A. No.
1386 of 2014 and W.A.M.P. No. 3418 of 2014 in W.A.
No. 1388 of 2014, the Division Bench directed the
Vice-Chairperson to discharge the functions of the
Chairperson until further orders and further
restrained the respondents from filling up the
vacancy of Chairperson. The Division Bench also
directed the District Judge to decide the pending
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Election Petitions within three months and posted
the appeals for hearing after two months.
34. Against the aforesaid interim order, the
appellant has filed these appeals by way of special
leave before this Court.
35. Mr. P.P. Rao, learned senior counsel, appearing
for the appellant while assailing the legality and
correctness of the impugned order contended that
the Division Bench of the High Court erred in
allowing the interlocutory applications filed by
respondent No.1 herein and giving impugned
directions. He submitted that in the light of well
reasoned order passed by the learned Single Judge
allowing the writ petitions filed by the appellant
herein and keeping his disqualification of
membership/Chairpersonship under suspension till
disposal of the election petitions, both intra court
appeals and applications had virtually become
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infructuous and hence were liable to be dismissed as
such.
36. Learned senior counsel then contended that no
prima facie case was made out for passing the
impugned order because the appellant herein had
already resumed the office of the Chairperson on
08.11.2014 pursuant to the order dated 07.11.2014
passed by the learned Single Judge.
37. Learned counsel pointed out that once the
appellant resumed the post of the Chairperson
pursuant to order passed by the learned Single
Judge, the only direction that should have been given
while disposing of the appeal/application by the
Division Bench was to decide the appellant's election
petitions by the Ist Additional District Judge, Ongole
on merits expeditiously.
38. Learned Counsel further contended that even
assuming that the High Court could go into the
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merits of the controversy, though it should not have,
yet it was the appellant who was able to make out
prima facie case as was rightly held by the learned
Single Judge in his favour when he allowed
appellant's writ petition arising out of the interim
order of the Additional District Judge.
39. Referring to Rules 21 and 22, learned Counsel
contended that the alleged whips issued by the TDP
in relation to the election in question were not legal
because it did not satisfy the requirements of the
twin rules. Learned Counsel while criticizing the
manner in which the Division Bench recorded certain
findings against the well settled principles of law and
contended that the impugned order besides being
interim in nature is wholly legally unsustainable and
hence deserves to be set aside.
40. In contra, Mr. A.K. Ganguli, learned senior
counsel appearing for respondent No.1, while
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supporting the impugned order contended that the
same being interim in nature, no interference is
called for under Article 136 of the Constitution of
India.
41. Having heard the learned Counsel for the
parties and on perusal of the record of the case and
the written submissions, we find force in the
submissions of the learned senior counsel for the
appellant.
42. The short question, which arises for
consideration in these appeals, is whether the
Division Bench was justified in allowing the
applications filed in pending writ appeals and was,
therefore, justified in issuing mandatory directions?
43. The impugned directions read as under:
“We, therefore, direct the Vice-Chairperson, until further orders of this Court, to discharge the functions of the Chairperson in terms of the aforesaid legal provision. However, we restrain all the official respondents from taking any steps or further steps to fill up the
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vacancy which resulted because of the disqualification order.
It would be ideal if the District Judge decides the matter pending on his file within three months instead of six months from the date of communication of this order.
These two appeals will come up for hearing two months hence.
WAMPs are ordered accordingly.”
The aforementioned directions are based on
following two findings recorded by the High Court:
“We are of the opinion that until and unless the order of disqualification is set aside, it remains operative. Unlike the Court, the Collector has no power to grant an order of injunction. In our view, of course, prima facie, the order of suspension of the learned Trial Judge in the above legal and factual scenario is futile and cannot even be implemented.”
“…..We think that some sort of workable interim order was passed keeping in view the balance of convenience, as under the Constitution, there is no express provision that in case of vacancy in the office of Prime Minister, anyone will function as a Prime Minister, as a Head of the Council of Ministers. On the contrary, on the vacancy, the entire Cabinet would stand dissolved.”
44. In our considered opinion, the aforementioned
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two findings are not legally sustainable for the
reasons mentioned infra.
45. It is a well settled principle of law that the
Courts are always vested with inherent and statutory
power to stay/restrain the execution of the action
impugned in the lis during pendency of the lis. These
powers are contained in Order 39 Rules 1and 2, and
Order 41 Rule 5 of the Code of Civil Procedure, 1908.
46. This Court in Mulraj vs. Murti Raghunathji
Maharaj, AIR 1967 SC 1386 had the occasion to
take note of this well settled principle wherein
Justice K.N. Wanchoo speaking for the Bench
explained the subtle distinction between the grant of
injunction and stay and explained the effect of both
including consequence after their termination.
47. Keeping in view this well settled principle, which
we need not elaborate herein, we are of the view that
the Division Bench was not right in observing that so
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long as the order of disqualification was not set aside,
it remained operative.
48. In our considered view, the Division Bench
failed to see that so long as the final adjudication is
not done in accordance with law on merits in the
election petitions, the District Court was vested with
the power to pass appropriate interim orders in
relation to the impugned action under Section 22-A
of the Act which reads as under:
“22-A Bar of jurisdiction: No order passed or proceedings taken under the provisions of this Act, shall be called in question in any Court, in any suit, or application, and no injunction shall be granted by any Court except District Court in respect of any action taken or about to be taken in pursuance of any power conferred by or under this Act.” (Emphasis supplied)
49. The Division Bench also failed to appreciate that
once writ petitions filed by the appellant herein were
allowed on 07.11.2014 by suspending the
proceedings dated 11.08.2014, the respondents had
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no option but to allow the appellant to function as
the Chairman of ZPP.
50. Similarly the Division Bench was also not right
in giving an illustration quoted above in support of
the impugned order. In our opinion, the illustration
is wholly misplaced and has nothing to do with the
short question involved herein.
51. Now coming to the issue, we find that
indisputably though the District Court declined to
grant any injunction to the appellant for grant of any
interim order in his favour but the learned Single
Judge by order dated 7.11.2014 in W.P.Nos. 30790 of
2014 had stayed the operation of the disqualification
order dated 11.8.2014 passed by the District
Collector.
52. In our considered opinion, the effect of the
suspension order dated 07.11.2014 of the learned
Single Judge was that the appellant's disqualification
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from the post of member of ZPTC and the
Chairperson of ZPP was kept in abeyance till the
disposal of the election petitions. In other words, no
effect was to be given to the appellant's
disqualification in relation to his status as member
and the Chairperson till the disposal of the election
petitions.
53. It is also not in dispute that the learned Single
Judge simultaneously in other two pending writ
petitions (W.P.No.31113 of 2014 and W.P.No.36421
of 2014) by separate interim orders one dated
12.11.2014 and other dated 28.11.2014 had stayed
the order dated 12.08.2014 by which the Vice-
Chairperson of the ZPP was asked to assume the
charge of the post of Chairperson and this stay was
in operation.
54. In the light of these undisputed facts, we are of
the view that there was no legal impediment for the
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appellant to have assumed the post of the
Chairperson, ZPP, Prakasam District, which he did
assume on 08.11.2014 pursuant to the order dated
07.11.2014 of the learned Single Judge. Once the
appellant assumed the office of the Chairperson, the
Division Bench should have dismissed the
interlocutory applications as having rendered
infructuous because the prayer made therein,
namely, to restrain the appellant from assuming the
office of the Chairperson and asking the
vice-Chairperson to assume the charge of the
Chairperson was already implemented prior to
consideration of the applications and there was no
apparent justification to oust the appellant from the
post of Chairperson by another interim order.
55. In our considered opinion, the impugned order
of the Division Bench in directing removal of the
appellant from the post of Chairperson and asking
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the Vice-Chairperson to take over the charge of the
Chairperson in his place is not only untenable in law
but also perverse.
56. Though learned senior counsel for the appellant
also urged the issues relating to legality of the whip
issued by the TDP contending inter alia that it was
not in conformity with the requirements of Rules etc.
but we refrain from going into this question at this
stage in these appeals for the simple reason that
these issues are sub judiced in the election petitions
and hence need to be tried by the District Judge on
merits in accordance with law as directed by the
learned Single Judge vide order dated 7.11.2014.
57. This takes us to the last submission urged by
the learned senior counsel for respondent No.1 that
impugned order being interim in nature, this Court
should not interfere in the same under Article 136 of
the Constitution of India. We do not agree with this
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submission.
58. In our considered view, if we find that the
reasoning given by the High Court while passing the
interim order is perverse and legally unsustainable
being against the settled principle of law laid down by
this Court then interference of this Court in such
order is called for regardless of the nature of the
order impugned in appeal.
59. In this case, having noticed that the two
reasonings extracted above are wholly unsustainable
being against the well settled principle of law, it is
necessary for this Court to interfere.
60. The fate of the appellant about his membership
and Chairpersonship would depend upon the
outcome of the election petitions.
61. Let the election petitions be decided within 3
months as an outer limit from the date of this Court.
62. In view of foregoing discussion, the appeals
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succeed and are accordingly allowed. Impugned order
is set aside. As a consequence, all the pending
appeals/petitions before the High Court also stand
finally disposed of in the light of this judgment
because there remains nothing for the High Court
now to decide in pending appeals/writ petitions.
S.L.P.(c) Nos. 5896-5897 of 2015
In view of the detailed judgment passed in the
appeals @ S.L.P.(c) Nos. 36764 of 2014 and 36773 of
2014, these special leave petitions stand disposed of
accordingly.
………...................................J. [J. CHELAMESWAR]
…...……..................................J. [ABHAY MANOHAR SAPRE]
New Delhi; September 15, 2015.
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