Anugula Somaiah v. Revenue Divisional Officer, Karimnagar
2003-12-04
A.GOPAL REDDY
body2003
DigiLaw.ai
ORDER : A. Gopal Reddy, J. The Writ Petitioners seek Certiorari from this court for calling the records pertaining to the adjourned meeting held on 9-9-2003 in pursuance of the notice dated 22-8-2003 issued by the first respondent in his proceedings No. 4074/2003 and quash the same as they are illegal, arbitrary and violative of Rule 3 of Rules issued in G.O. Ms No. 200 PR Panchayat Raj (R and D Mandal-II) dated 28-4-1998. 2. The facts, which are relevant for filing the present Writ Petition in nutshell, are as under : The first petitioner was elected as President and the second petitioner was elected as Vice President and the other two petitioners were the elected members of the Mandal Praja Parishad, Koheda. Some of the MPTC members issued a notice dated 24-7-2003 in Form No.11, requesting the respondents to convene a meeting of the Mandal Praja Parishad, for considering a motion of no confidence against first and second petitioners, and the Revenue Divisional Officer basing on notice in Form No. II, convened a Meeting of Mandal Praja Parishad on 14-8-2003 by issuing notice dated 26-7-2003 in Form No. V as contemplated under Section 245(1) of the Panchayat Raj Act. Questioning the same, petitioners filed W.P. No. 16749 of 2003 and initially this court stayed the proceedings and subsequently dismissed the Writ petition by an order dated 22-8-2003 on the ground that this court cannot go into the question whether the signatures are genuine or not and whether notices have been served on all the MPTC Members or not. On the same day, respondents by issuing a notice dated 22-8-2003 in Form No. V convened a meeting on 9-9-2003 for considering a motion of no confidence. Questioning the same, the petitioners filed Writ Petition No. 19073 of 2003 contenting that such a notice was issued even without receiving the order passed by this Court in Writ Petition No. 16749 of 2003 and it was not mentioned in the notice whether the meeting was convened on 14-8-2003 or not. More so, when the petitioners came to know that a whip of Bharatiya Janata Party through letter dated 3-9-2000 addressed to the respondent, informing him about the whip issued by the President, State BJP, directing to MPTC Members not to attend the meeting on 9-9-2003.
More so, when the petitioners came to know that a whip of Bharatiya Janata Party through letter dated 3-9-2000 addressed to the respondent, informing him about the whip issued by the President, State BJP, directing to MPTC Members not to attend the meeting on 9-9-2003. Similarly a letter dated 3-9-2003 was addressed by the Whip of CPI party, to respondent informing about the whip issued by the Secretary, CPI directing their MPTC Members not to attend the meeting convened on 9-9-2003 to consider the no confidence motion moved against the petitioners. These two letters addressed by the two national political parties clearly show that they are interested in petitioners' continuance as President of Koheda Mandal Praja Parishad. The three MPTC Members whose names were mentioned in the letters addressed to the respondent herein are in the captive of signatories in Form No. II. This clearly shows that there will be no required quorum of ?rd for passing the no confidence motion against the petitioners. Hence, the Revenue Divisional Officer-respondent ought not to have convened meeting on 9-9-2003 and the respondent appears to have taken a decision in a hasty manner without taking into consideration the letters addressed by the Whips. Except the above grounds no other grounds were urged in the earlier Writ Petition. When the Writ Petition was taken up for hearing, both the counsel submitted that the Writ petition has to be dismissed in the light of the order passed by the Division Bench in W.A. Nos. 1755 of 2003 and 1579 of 2003 and WP No. 19144 of 2003. Accepting the submissions, the said Writ Petition was dismissed on 30-10-2003. 3. After dismissal of the above Writ Petition, being inspired by the judgments of the Division Bench of this court in W.A. No. 1927 of 2003 dated 11-11-2003, and W.A. Nos. 1755, 1579 of 2003, wherein this court held respectively as follows : "Four separate modes of service of notice, as enjoined in Rule-3 of the Rules, is to have effective service of notice on the party concerned. Considering the consequences of non-service notice to be penal, there is no manner of doubt that, the provisions of Rule-3 have to be meticulously followed in their letter and spirit. In this case notices have not been properly served since appellants 1 and 5 were not duly notified.
Considering the consequences of non-service notice to be penal, there is no manner of doubt that, the provisions of Rule-3 have to be meticulously followed in their letter and spirit. In this case notices have not been properly served since appellants 1 and 5 were not duly notified. It may be that appellants 1 and 5 were have got knowledge otherwise of the notice subsequently, but it will not make any difference and it has to be treated as non-service of notice thereby vitiating the proceedings." "that service of notice, with 15 clear days notice, as contemplated under Rule 3 is mandatory"; the petitioner carried the matter in appeal in W.A. No. 2129 of 2003, against the dismissal of the Writ Petition 19073 of 2003, which was dismissed on 27-11-2003 observing as under: "in case the appellant is aggrieved that the submission was not made, though it is not the case set up in the appeal, or that some other points were urged (which of course is not reflected in the impugned order), remedy will be to approach the learned single Judge. Writ Appeal is dismissed." 4. Inspired by the observations of the Division Bench that the petitioner is at liberty to approach the court, the petitioners filed the present Writ petition with new grounds contending that notice under Form No. V was not served on the petitioners as required under Rule 3 of the Rules relating to the motion of no confidence motion. In view of the same, the validity of the meeting held on 9-9-2003 pursuant to the impugned notice dated 22-8-2003 has to be set aside and have to be quashed. It is also stated that even minutes of meeting held on 9-9-2003 was not served on the petitioners as required under Rule 10 of the Rules relating to the motion of no confidence. 5. In view of the same, the notification relating to the first petitioner's removal which was published in the Gazette on 24-11-2003, and the Election Notification issued on 25-11-2003, fixing the date of election, for the vacancy of Mandal Praja Parishad, which was affixed in the Mandal on 29-11-2003 are liable to be quashed. 6.
5. In view of the same, the notification relating to the first petitioner's removal which was published in the Gazette on 24-11-2003, and the Election Notification issued on 25-11-2003, fixing the date of election, for the vacancy of Mandal Praja Parishad, which was affixed in the Mandal on 29-11-2003 are liable to be quashed. 6. The learned counsel for the petitioner strenuously contended that though invalidity of the notice was not urged in Writ Petition No. 19073 of 2003, which goes to the root of the matter, the petitioner is entitled to challenge the issuance of the said notice and consequential no confidence motion pursuant to the said notice, when the notice issued itself do not fulfil the statutory requirement under Rule 3, the entire meeting as well as all further consequential proceedings are liable to be quashed. 7. It is difficult to accept the submission made by the learned counsel for the petitioner, for the reason, the ground of invalidity of notice is very much available to the petitioner when he filed the Writ Petition No. 19073 of 2003, but he has not chosen to challenge the same. Though the Order 2 Rule 2 is not applicable to the Writ Proceedings Rules, in view of explanation added to Section 141 of Civil Procedure Code, but, it is well settled principle underlying therein, is applicable to Writ Proceedings. Rule 24 of Writ Proceedings Rules, reads as follows: "All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the Writ Petitions and the Writ Appeals in so far as they are not inconsistent with these rules." 8. In view of the same, fair play demands the petitioners should have taken all grounds, which are available, at the time of initial challenge and they cannot split up the cause of action and go on challenge the notice issued on installments. It is well settled that every argumentative novelty discovered by the counsel cannot be ground to entertain the subsequent Writ Petition on new grounds, which were not urged earlier.
It is well settled that every argumentative novelty discovered by the counsel cannot be ground to entertain the subsequent Writ Petition on new grounds, which were not urged earlier. An adjudication made earlier is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with in the legitimate purview of the original action both in respect of the matters of claim or defence. The learned counsel for the petitioner cannot justify in petitioners moving the court with this writ petition on the ground that they can urge the points now raised, as observed by the Division Bench, to unsettle the matters, which were settled on dismissal of the earlier writ petition. On passing of the no confidence motion, the election to the resultant vacancy was notified by the respondent and the elections were also taken place on 3-12-2003. 9. In view of the same, I do not see any ground to entertain the present Writ Petition and accordingly, the same is dismissed. No costs.