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2008 DIGILAW 924 (AP)

Ganna Venkatarama Narsaiah v. Govt. of A. P.

2008-10-29

L.NARASIMHA REDDY

body2008
ORDER These two writ petitions are filed by the same individual. For the sake of convenience, the parties are referred to, as arrayed in W.P.No.19060 of 2008. 2. The elections to the Mandai Parishad, Munagala, were held in the year 2006. The petitioner was elected as Mandai Parishad Territorial Constituency Member, from Repala Village of Munagala MandaI. The Mandai Parishad comprises of 12 such Members. The petitioner was elected as President of the Mandai Parishad. 3. Respondents 4 to 12 submitted a requisition to the Revenue Divisional Officer, Suryapet, the 3rd respondent herein, with a request to convene a meeting of the Mandai Parishad, to express lack of confidence in the petitioner. Acting on the same, the 3rd respondent issued a notice in Form-V of the Rules published in G.O.Ms.No.200, Panchayat Raj and Rural Development (Mandai-I), dated 28.04.1998 (for short "the Rules"), proposing to conduct the meeting of the Mandai Parishad on 27.08.2008. A meeting was accordingly conducted, and the motion of no-confidence, against the petitioner was carried out. Consequential orders were issued in G.O.Ms.No.359, Panchayat Raj Rural Development (Mandal-IIA), dated 23.09.2008. 4. W.P.No.19060 of 2008 is filed, assailing various steps taken by the 3rd respondent, and W.P.No.21746 of 2008 is filed, challenging the consequential orders in G.O.Ms.No.359, dated 23.09.2008. 5. The petitioner contends that there was absolutely no basis for the 3rd respondent, to initiate steps, or to issue notice in Form-V. According to the petitioner, respondents 4 to 12 did not submit any requisition in Form-II, much less enclose a copy of the proposed motion of no confidence. He further contends that it is mandatory under the Rules that a copy of the proposed motion of no confidence must be enclosed to Form-V also, and the 3rd respondent did not comply with this. According to him, there is nothing on record to disclose that the requisition, even in a defective form, was presented by two members, as required under Rule 2 of the Rules. 6. In the counter-affidavit filed by the 3rd respondent, it is admitted that the requisition was not presented in Form-II prescribed under the Rules. It is, however, contended that the requisition submitted by respondents 4 to 12, satisfies the requirements of Rule 2 of the Rules. 7. Sri Ch. 6. In the counter-affidavit filed by the 3rd respondent, it is admitted that the requisition was not presented in Form-II prescribed under the Rules. It is, however, contended that the requisition submitted by respondents 4 to 12, satisfies the requirements of Rule 2 of the Rules. 7. Sri Ch. Ravinder, learned counsel for the petitioner, submits that a motion of no confidence, if carried out, would unsettle the mandate of the electorate, and the provisions in relation thereto, must be construed strictly. He submits that when the legislation has prescribed a clear and definite procedure to be followed, in the matter of initiating proceedings for the motion of no-confidence, and relevant forms are also prescribed, there is no basis for the 3rd respondent to act upon a letter, which does not accord with the same. He contends that the motion of no-confidence, as well as the consequential orders, have no legs to stand, in law. 8. The learned Government Pleader for Panchayat Raj, on behalf of respondents 1 to 3 and Sri V. Raghu, learned counsel for respondents 4 to 12, on the other hand, submit that the petitioner did not raise any objection, as to the legality of the proceedings, till a motion of no-confidence was carried out in a meeting, and thereby, he is estopped from assailing the proceedings. They contend that the requisition, though not strictly in the prescribed form, is signed by adequate number of members, and the motion of no-confidence was carried out. 9. The petitioner was elected as the President of the Mandai Parishad, in accordance with the procedure prescribed under the A.P. Panchayat Raj Act (for short "the Act") and the Rules. Section 245 of the Act provides for moving a motion of no-confidence, against the elected heads of the various local bodies. Prohibition is imposed on tabling of motions of no-confidence, within a period of two years, from the date of assumption of the office by the person, against whom it is sought to be moved. To certain extent, the section contains the procedure to be followed, in this regard. The details thereof are supplemented in the Rules. The purport of the relevant provisions was discussed at length in various judgments of this court. To certain extent, the section contains the procedure to be followed, in this regard. The details thereof are supplemented in the Rules. The purport of the relevant provisions was discussed at length in various judgments of this court. It is necessary that the requisition for convening a meeting of Mandai Parishad is required to be submitted in Form-II, signed by not less than one-half of the total members of the Parish ad. In addition to that, two signatories must deliver the notice in Form-II, to the Revenue Divisional Officer, in person. A copy of the proposed motion of no-confidence must be enclosed to the notice in Form-II. If the Revenue Divisional Officer is satisfied that the requisition accords with Form-II, he has to issue notice in Form-V, fixing a date for convening the meeting of the Mandai Parishad. He is placed under obligation to enclose a copy of the proposed resolution to Form-V. It is beneficial to extract Rule 2 as well as Form-II. "Rule 2: A notice of the intention to make the motion shall be made in Form-I, in Form-II and in Form-III annexed to these rules either in English or in Telugu or in Urdu language, signed by not less than one-half of the total number of members of the Gram Panchayat, Mandai Parishad, or Zilla Parishad as the case may be, together with a copy of the proposed motion, and shall be delivered in person by any two of the members who signed such notice, to the Revenue Divisional Officer, Sub-collector or Assistant Collector, as the case may be, having jurisdiction in the case of UpaSarpanch of a Gram Panchayat, or President and Vice-President of a Mandai Parishad; or to the District Collector in the case of Chairperson and Vice-Chairperson of Zilla Parishad, as the case may be: Provided that no notice of motion under this rule shall be made within two years of the date of assumption of office by the person against whom the motion is sought to be moved; Provided further that no such notice shall be made against the same person more than once during his term of office." FORM-II To The Revenue Divisional Officer/ Sub-Collector/Assistant Collector. Sir/Madam, We, the undersigned members of Mandai Parishad ......... ............ Mandal.................... . Sir/Madam, We, the undersigned members of Mandai Parishad ......... ............ Mandal.................... . District, hereby give notice of our intention as required by sub-section (1) of Section 245 of the Andhra Pradesh Panchayat Raj Act, 1994 (Act NO.13 of 1994) to make a motion expressing want of confidence in Sri/Smt./Kum....................... VicePresident! President of Mandai Parishad at a meeting to be specially convened for the purpose. A copy of the motion proposed to be made is enclosed. Signed at ............................. .on the day of ........... ...19..... (1) (2) (3) Name Signature (1) (2) Revenue Divisional Officer/ Sub-Collector/ Assistant Collector." Inasmuch as the motion of no-confidence, if carried, would unseat the elected person, it is but natural that the strict compliance must be ensured, with the relevant provisions of law. 10. In the instant case, the proceedings I vis-a-vis the petitioner, commenced with submission of a representation dated 29.7.2008, by respondents 4 to 12. The requisition was not in Form-II. Further, the text of the requisition is at total variance, with the one in the prescribed form. It is in Telugu, and the liberal translation thereof reads as under: "To the Revenue Divisional Officer, Suryapet. Sir, Sub: Proposal to express lack of confidence in Ganna Venkatarama Narsaiah, President Mandai Parishad, Munagala - Reg. Sri G. Venkatarama Narsaiah, President of the Mandai Parishad has been resorting to misuse of power for the past some time. He has misappropriated huge sums from the general funds of the Mandai Parishad. He is recommending for extension of welfare schemes to ineligible persons, ignoring the scheme of eligible persons. He is exhibiting partiality towards MPTC members. He is issuing oral instructions for deputation of school teachers, according to his wish, and contrary to the prescribed rules. He is replacing the duty minded MLOs, with the teachers of his choice, contrary to the rules. The president is ignoring the resolutions passed by the Grama Sabhas and has chosen ineligible persons for it. For the foregoing reasons, we propose to move a noconfidence against the president. Sd/Respondents 4 to 12." 11. In a way, the text of the requisition extracted above, resembles a proposed motion of no-confidence, than the contents of Form-II. Another important aspect is that it was not presented by two signatories to the 3'd respondent, as required under law. 12. For the foregoing reasons, we propose to move a noconfidence against the president. Sd/Respondents 4 to 12." 11. In a way, the text of the requisition extracted above, resembles a proposed motion of no-confidence, than the contents of Form-II. Another important aspect is that it was not presented by two signatories to the 3'd respondent, as required under law. 12. Various steps prescribed by the principal or subordinate legislature, be it in relation to election of representatives for the statutory or local bodies, or matters relating thereto, need strict compliance. For instance, not only the manner in which the elections must be held, but also meticulous details to be followed in the process of voting, counting, etc, are stipulated, under the relevant provisions. Any deviation therefrom, which had the effect of diluting the mandate, would nullify the election process. Section 245 of the Act and the Rules are akin to election process, may be in the reverse direction. Compared to the procedure prescribed for election, the one stipulated for dislodging an elected representative must be complied in a more meticulous manner. This is in addition to the well established principle that where law requires a particular thing to be done in a particular manner, it must be done in that manner, or not at all. (See Gujarat Electricity Board v. Girdharlal Motilal). 13. If one examines the representation dated 29.7.2008, which gave rise to the issuance of Form-V, it becomes clear that there is clear non-compliance with the relevant provisions of law, or the prescribed forms. Had the requisition accorded with the text of Form-II, there would have been some basis to condone the absence of the caption 'Form-II'. Substantial compliance could have been inferred, if only the language broadly accorded with the one employed in the prescribed form and a copy of the proposed resolution was enclosed. It has already been pointed out that there is absolutely no relation between what is issued by respondents 4 to 12, and the one that is stipulated. Admittedly, no copy of the resolution was enclosed. The non-compliance had spilled over to the stage of Form-V also. It has already been pointed out that there is absolutely no relation between what is issued by respondents 4 to 12, and the one that is stipulated. Admittedly, no copy of the resolution was enclosed. The non-compliance had spilled over to the stage of Form-V also. Enclosure of a proposed resolution to Form-V is mandatory, and since such a resolution was not submitted by respondents 4 to 12 at all, there was no occasion for the 3rd respondent to supply it along with Form-V. In Perika Anjali v. State of A.P.2, this Court held that the procedure prescribed under the Rules, including the prescribed form, is mandatory. 14. Therefore, the various steps taken by the 3rd respondent, in convening the meeting of the Mandai Parishad, to take up the motion of no-confidence against the petitioner and the results thereof, cannot be sustained in law. 15. The objection raised by the respondents that the petitioner did not protest as to non-compliance with the procedure, at any point of time, is untenable. The reason is that the role of the 3rd respondent is very limited and circumscribed, in matters of this nature. Once he chooses to issue Form-V, on the basis of a requisition delivered to him, his function is confined to the one of convening a meeting. Further, Rule 8 of the Rules prohibits any discussion in the meeting so convened. The members are required to express their views on the motion of no confidence, just by show of hands, and nothing more. Therefore, there was nothing, which the petitioner could have done about, or for tile 3rd respondent to rectify the mistake. Neither under the Act, nor under the Rules, the 3rd respondent is conferred with the power to scuttle the procedure once initiated. 16. Further, a patently illegal exercise by an authority under a legislation does not assume legality, simply because the affected party did not raise an objection. Such acts must stand on their strength or fall on their weakness, irrespective of the nature of reaction from others. At the most a person who derived any benefit, out of the illegality may be precluded from questioning it later. In the instant case, far from deriving any benefit, the petitioner suffered detriment. Therefore, the objection raised by the respondents cannot be sustained. 17. At the most a person who derived any benefit, out of the illegality may be precluded from questioning it later. In the instant case, far from deriving any benefit, the petitioner suffered detriment. Therefore, the objection raised by the respondents cannot be sustained. 17. For the foregoing reasons, W.P.No.19060 of 2008 is allowed and various steps taken by the 3rd respondent, commencing from acceptance of the requisition, dated 29.07.2008, to convene a meeting of the Mandai on 27.08.2008, including the result thereof, are set aside. W. P. No. 21746 of 2008 is allowed, setting aside G.O.Ms.No.359, dated 23.09.2008. As a result, the petitioner shall be entitled to continue as Mandai Parishad President. It is, however, made clear that inasmuch as the entire proceedings are held to be illegal, the bar under 2nd provision (sic. proviso) to Section 245 (1) of the Act does not operate, and it shall be open to respondents 4 to 12, or other Members, to move motion of no-confidence, against the petitioner, in accordance with law. There shall be no order as to costs.