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2008 DIGILAW 951 (AP)

Pulimi Sailaja Reddy v. The State of A. P.

2008-11-07

B.PRAKASH RAO

body2008
JUDGMENT: (PER Hon'ble Sri Justice B.Prakash Rao) The petitioner herein, who is a Mayor of the Municipal Corporation of Nellore files this writ petition seeking for a Mandamus declaring the action of the Government in initiating proceedings to remove her from the said office, as illegal and violative of Article 14 and 21 of the Constitution of India apart from being violative of principles of natural justice and further vitiated by malice in law and tainted with mala fides while seeking a declaration primarily that Section 639-B of the Hyderabad Municipal Corporation Act 1956 as unconstitutional, consequently to hold that the action of the government in initiating the impugned proceedings vide Memo No.6929/Elec.II/2008, dated 13-06- 2008 as void and to set aside the same. The facts giving rise to the present proceedings are that the petitioner was elected as Corporator from Ward No.38 of the Nellore Municipal Corporation in the elections held on 24-09-2005 and subsequently she got elected unanimously to the post of Mayor in the election, conducted on 30-9-2005. She has taken charge on 5-10-2005 and thus the term of the office comes to an end on 29-09-2010. She states that there are in all 50 Wards in the Municipality; of which Congress won 19, TDP-20, Independents-5, C.P.M-4 and BJP-2, apart from four Ex-officio members viz., one Member of Parliament and three members of Andhra Pradesh Legislative Assembly, including the 3rd respondent herein. She takes to her credit about several developmental activities taken up for the betterment of the city by procuring substantial funds. However, she states that the 3rd respondent, who is MLA from local Nellore Assembly Constituency and Ex- officio member of the Corporation, along with his henchmen, is trying to create hurdles for no fault of her. It is only in pursuance of such avowed motive, the impugned show-cause notice dated 13-6-2008 is being given, which is served on her on 14-6-2008. In the said notice, certain charges have been alleged to the effect that she is not discharging the duties legitimately and willfully omitted to carry out the provisions of the Act and Rules made there under, and that she has abused the powers vested in the office as Mayor and called upon to give explanation within 7 days. In the said notice, certain charges have been alleged to the effect that she is not discharging the duties legitimately and willfully omitted to carry out the provisions of the Act and Rules made there under, and that she has abused the powers vested in the office as Mayor and called upon to give explanation within 7 days. According to her, all those allegations and charges are totally vague and do not have any basis and are invented only for the purpose of removing her from the post. Therefore, she has filed the present writ petition, inter alia seeking to assail the constitutional validity of Section 679-B of the Hyderabad Municipal Corporation Act under which the said action is initiated and consequently to set aside the same. Hence, stating that though she need not reply to the show cause notice, however, as abundant caution, she has filed an explanation as a ritual. According to her, Section 679-B of the said Act violates Article 14 and 21 of the Constitution of India and is in the teeth of the 74th Constitutional Amendment Act i.e., Part IX-A of the Constitution read with 12th Schedule of the Constitution of India. Since the basis for such action on mere formation of opinion by the Government it vests totally an arbitrary exercise of power to remove an elected peoples' representative, such course is quite opposite to the tenets of Article 14 of the Constitution of India and the object and intent of the 74th Constitutional Amendment. Further, as per Article 243U of the Constitution the term of 5 years is assured to an elected Mayor of the municipality, which is an independent local institution. Therefore conferring of such sweeping power in respect of institution under Article 243 (P) of the Constitution of India unlike corporation is totally unconstitutional. Therefore, the said provision defeats the object and scope. An elected representative is virtually kept under mercy of the government in spite of such constitutional safeguard enshrined. Even otherwise, prescribing a disqualification for future election under Clause (3) of Section 679-B of the said Act effects the rights of the citizen to contest for a democratic office. Therefore, the entire process as initiated there under is only a make belief, and thus, the same does not cater to the limitations prescribed under the aforesaid provisions of the Constitution of India. Therefore, the entire process as initiated there under is only a make belief, and thus, the same does not cater to the limitations prescribed under the aforesaid provisions of the Constitution of India. Further, in support, the petitioner pleaded mala fides on the part of the 3rd respondent herein, who is a local MLA and an Ex-officio member of the Corporation. The brother of the 3rd respondent Sri Anam Ram Narayana Reddy is the Minister in the cabinet of the Government of Andhra Pradesh being elected as MLA from the Rapur Assembly Constituency. Both of them are using their political influence by adopting dictatorial attitudes. It is only at the instance of 3rd respondent, who has become inimical and who wants to de-thrown her from the post, the impugned action is taken up. In support, the petitioner has narrated various incidents that occurred at Nellore on 2-6-2007 , where in a function she was not invited to the dias during the visit of Chief Minister, which has been reported in the press widely on 3-6-2007 for singling out her and ill-treatment meted. Secondly, there is a complaint by the Commissioner of the Corporation himself on 27-7-2007 about the behavior of the corporators. The 3rd respondent claims that the petitioner has been installed at his instance, even though she is not qualified, the said statement appeared in press on 26-1-2008. Thus, there have been several such ill-treatments and harassments meted out to the petitioner and the petitioner has been assaulted by some of the lady corporators, which has been reported in the local edition of the newspaper on 18-4-2008. The petitioner filed a police case complaining about assault on her. The 3rd respondent went on reporting to the press as evident from the report in the newspapers, dated 20-4-2008 that the petitioner has to be sacked. The 3rd respondent addressed several letters including the letter dated 23-4-2008 against the petitioner to remove her from the office. Ultimately, all these incidents and the alleged letters from the 3rd respondent have virtually lead the government to issue the impugned show-cause notice to the petitioner. On the face of it, the petitioner states that since the action is tainted with mala fides being at the instance of the 3rd respondent, who is closer to the higher quarters of the ruling government has to be set at naught. On the face of it, the petitioner states that since the action is tainted with mala fides being at the instance of the 3rd respondent, who is closer to the higher quarters of the ruling government has to be set at naught. Even otherwise, the show-cause notice only repeats the contents of very same complaints given by the 3rd respondent and is a virtual reproduction thereof without applying mind. Therefore, there is absolutely no due consideration on its own by the Government in the initiation of the said process. In respect of certain allegations made in the show-cause the petitioner sought to explain to them in detail about the services and the extent of need, which she would secure for the corporation in respect of certain works. Therefore, it is stated that the entire allegations and the charges as leveled against her are not correct, but are tainted with malice. Thus, she submits that there is neither any illegal act on her part nor any abuse of power, much less misuse thereof. In view of such serious action taken recourse to for no fault on her part, the petitioner submits that she has to invoke the extraordinary Jurisdiction of this Court under Article 226 of the Constitution of India, hence, the writ petition. Pending the writ petition, in the interim application seeking suspension of the proceedings dated 13-6-2008, after filing of the counter affidavit by the respondent No.1, this Court passed the interim orders in WPMP.No.16527 of 2008, dated 27-2-2008 suspending the same, mainly, taking note of the allegations of mala fides against respondent No.3, which prima facie require to be gone into in the writ petition and that even though the government had conducted earlier two preliminary enquiries followed up by the respective reports prior to the issuance of show cause notice, but the same does not find place in the show cause and even in the counter affidavit, there is no explanation for the conspicuous absence. The main writ itself was directed to be posted for final hearing. Accordingly, final arguments were taken up. In the meanwhile, on behalf of the respondent No.1-government an additional counter affidavit and the contesting respondent No.3 counter affidavits have been filed. In the additional counter affidavit filed by the respondent No.1/Secretary to Government, Municipal Administration, Urban Development Department, the allegations and the pleas raised on behalf of the petitioner are denied. Accordingly, final arguments were taken up. In the meanwhile, on behalf of the respondent No.1-government an additional counter affidavit and the contesting respondent No.3 counter affidavits have been filed. In the additional counter affidavit filed by the respondent No.1/Secretary to Government, Municipal Administration, Urban Development Department, the allegations and the pleas raised on behalf of the petitioner are denied. It is alleged that there were several complaints, from various corporators including the 3rd respondent. However, the government did not act on those complaints hastily. To find the truth, a fact-finding enquiry was ordered as per the government Memo dated 5-5-2008, where upon the enquiry officer submitted a report on 20-5-2008. Further, again as per the directions given in Memo dated 3-8-2007 with regard to some more allegations against the petitioner, an enquiry was ordered and whereupon the enquiry officer submitted another report, a second one, on 30-1-2008 and the same was forwarded by the Commissioner and Director of Municipal Administration as per the letter dated 19-4-2008. Basing on findings in these two reports, the government has issued show cause notice dated 13-6-2008. However, it was alleged that by oversight there is no reference with regard to these two earlier enquiries and reports in the show cause. However, the base for issuance of impugned notice is stated to be on the reports dated 31-3-2008 and 30-5-2008. Further, it was submitted that those reports are only fact finding preliminary enquiries and would not in any way vitiate the proceedings. That apart, the petitioner can as well submit an explanation and the same can be considered and ultimate final opinion can be arrived at, after considering all the material on record. In the earlier counter, the allegations as against the constitutional validity of Section 679-B of Hyderabad Municipal Corporation Act as alleged by the petitioner apart from being denied, stated that there is no basis in the plea raised by the petitioner. In the counter affidavit filed by the respondent No.3, there is a denial of entire allegations made against him and further states that these false and reckless allegations are made only with a view to sub-serve her interest. In the counter affidavit filed by the respondent No.3, there is a denial of entire allegations made against him and further states that these false and reckless allegations are made only with a view to sub-serve her interest. It was stated that since the petitioner was elected as a Mayor she is not adhering to the norms required to be maintained by the first citizen of the city and the administration of the Corporation suffered very badly on account of increased corruption at higher levels coupled with mal-administration on all aspects and civic works. Nellore Town which has been already suffering with open drainage, is worst hit even if there were to be showers. Further details have been given as to how there is failure on her part in convening the General Body meeting and attending to the works of the need. Further, it is stated by him that being the local MLA he is an ex-officio member of the Corporation and is accountable to the people and owes greater responsibility to the people, and thus the complaints made by him are only an endeavour to see that the petitioner undertakes measures to carry out all pending projects etc. Further having failed in all attempts, all the corporators belonging to CPM, CPI, TDP and Congress Parties represented to the Government against ill-performance. Therefore, nothing as such can be attributed only against him nor the petitioner can raise any plea of mala fides against the said respondent alone. It is only due to the worst scenario existing and sufferings of the residents of the town, in discharge of his obligations complained to the government, so that remedial measures, in accordance with law can be taken. In regard to the news items appeared in the papers, the 3rd respondent denied the same stating that he never made any statement, which would impair the dignity or reputation of anybody, much less the petitioner. Therefore, all those reports are not correct and there is no proper reporting. The entire allegations leveled against him are not true and there are absolutely no mala fides on his part. He denied about having any political clouts in higher circles as alleged in the writ petition and states that he is only a humble peoples' representative elected to the Legislative Assembly. The entire allegations leveled against him are not true and there are absolutely no mala fides on his part. He denied about having any political clouts in higher circles as alleged in the writ petition and states that he is only a humble peoples' representative elected to the Legislative Assembly. Further, he states that he belongs to the Congress party could not have possibly engineered to get the complaints from several other parties' corporators belonging to BJP, CPM, TDP and the independents. The 3rd respondent swears to the fact that he has no ill-will against the petitioner. The other allegations about the arrogance and dictatorial attitude etc, are denied. He referred to several other facts in regard to the affairs of the Corporation. He states that he does not have any henchmen. In fact, the petitioner herself maintains a circle and surrounded by men and lady corporators. The press statement made by him on 20-4-2008 was sought to be explained. He further states that he never had any personal grudge against the petitioner, especially, when the petitioner has been chosen by party high command as a candidate and she was elected unanimously and all the party men including himself stood behind her. Therefore, he submits that there is no illegality behind the impugned action nor does it suffers from any mala fides. Further the provision under Section 679B of the Act, sufficiently protects the interests with due procedure and therefore there are no merits in the writ petition. At the time of hearing, two set of applications have been filed by the 3rd party-petitioners to get themselves impleaded vide WPMP.24839 of 2008 and WPMP.16527 of 2008. In each of these applications, a support is indicated for one side or the other. The respective respondents therein filed a counter, blaming that the proposed parties are supporters of other side. However, having heard the counsel and in view of the interest as claimed and with a view to give opportunity, both the petitions were ordered. Heard Sri S.Ramachandra Rao, the learned senior counsel appearing for the petitioner, the learned Advocate General appearing on behalf of the respondent No.1, Sri S.R.Ashok, the learned Senior Counsel appearing on behalf of the respondent No.3 and Sri P.Sri Raghu Ram and Sri A.Sridhar, the learned counsel appearing on behalf of the 3rd parties, who have been impleaded and Sri CH. Vedavani, the learned Standing Counsel for the Corporation. According to the petitioner, the provision under Section 679-B of the Act is not sustainable in view of 74th Constitutional Amendment; the allegations made against her at the sole instance of respondent No.3 to remove her from office for not obeying him cannot be a basis for penal action; the Government can not act without application of mind but solely guided by respondent No.3 and the two preliminary enquiries are conducted and reports obtained are behind the back of the petitioner, hence cannot form the basis for action. The crux of the arguments set out on behalf of the petitioner is primarily three fold viz., 1) seeking to assail the constitutional validity of Section 679-B of the Hyderabad Municipal Corporation Act on the ground that the said provision is in the teeth of the objects and intent under Article 243 of the Constitution of India and the 74th Constitutional amendment; 2) the entire impugned action suffers from vice of mala fides as against the 3rd respondent, who being Member of Legislative Assembly and closer to higher circles in the government is responsible to initiate the proceedings; and 3) that no prima facie allegations have been made to make any attribution against the petitioner to warrant such serious action, that apart, the government has not applied its mind before initiation for any action except reproducing the contents from out of the complaints filed by the corporators including the 3rd respondent. The learned Advocate General appearing on behalf of the respondent No.1 repelling the aforesaid submissions contended that since the impugned action is only a show cause one hence the writ petition is not maintainable under Article 226 of the Constitution of India when there is no plea of want of jurisdiction.. That apart, having regard to the various complaints received by the Corporators belonging to all parties, the reports available, the government has sufficient material on record before coming to a conclusion as to existence of a prima facie case to initiate action. And, the respondent No.3 being a local MLA is an Ex-officio member of the Council, and therefore, is entitled to make complaint along with other corporators and thus nothing can be attributed only against him personally. And, the respondent No.3 being a local MLA is an Ex-officio member of the Council, and therefore, is entitled to make complaint along with other corporators and thus nothing can be attributed only against him personally. Sri S.R.Ashok, the learned Senior Counsel appearing on behalf of the 3rd respondent herein apart from denying the allegations of mala fides, points out various antecedents in the affairs of the municipality and lapses on the part of the petitioner. Further, it was alleged that newspaper reports are not fully extracted, but only partially to suit their convenience and therefore nothing could be made out from the same. He asserted that it is only in discharge of his duty as an Ex-officio member of the Corporation he did what all he could in the interest of the institution, but not with any intention of willfulness , hence no mala fides can be attributed by the petitioner. Sri D.V.Seetharam Murthy, counsel appearing on behalf of the impleaded respondents 4 to 12 submitted that many a corporators are signatories to the complaints and therefore the petitioner cannot make any such sweeping allegation. In reply Sri S. Ramchandra Rao, the learned Senior counsel appearing on behalf of the petitioner, once again, sought to demonstrate as to how the petitioner performed as Mayor in a more efficient manner. He referred to the meetings conducted by her, and he further states that having regard to the incidents, which occurred, where the petitioner was assaulted, as evident from the press reports and the photographs, there exists ample evidence to show the mala fide action on the part of the respondents. Further, he reiterated that neither of the two enquiries or the reports can form any basis of charge. With this and other submissions made by the counsel and on perusal of the material, the points, which arise for consideration in this writ petition, are as follows: 1) Whether in the facts and circumstances, Section 679-B of the Hyderabad Municipal Corporation Act is violative of 243rd and 74th Constitutional Amendment apart from violative of Article 14 and 21 of the Constitution of India? and 2) Whether in the facts and circumstances, the impugned action initiated by the respondent No.1 allegedly at the instance of respondent No.3 is vitiated by mala fides and, if so, the same is sustainable? and 2) Whether in the facts and circumstances, the impugned action initiated by the respondent No.1 allegedly at the instance of respondent No.3 is vitiated by mala fides and, if so, the same is sustainable? I. Constitutionality of the provision of Section 679 of the Hyderabad Municipal Corporation Act, 1955. At the outset, it is to be taken note of a crucial fact on which the present writ petition sought to rest. In the process of assailing the impugned action whereby the petitioner was given a show cause notice as to why she could not be removed from the post of Mayor of the Corporation, the petitioner seeks a Writ inter alia questioning the constitutional validity of Section 679-B of the said Act where under the Government is vested with the powers to remove a Mayor or a Deputy Mayor. For convenience sake the said provision is extracted: "679-B Government's power to remove Mayor or Deputy Mayor (1) The Government may, by notification in the Andhra Pradesh Gazette, remove the Mayor or the Deputy Mayor who, in their opinion willfully omits or refuses to carry out or disobeys the provisions of this Act or any rules, bye-laws, regulations or lawful orders issued thereunder or abuses his position of the powers vested in him. (2) The Government shall when they propose to remove the Mayor or the Deputy Mayor under sub-section (1), give the Mayor or the Deputy Mayor concerned an opportunity for explanation, and the notification issued under the said sub- section shall contain a statement of the reasons of the Government for the action taken. (3) Any person removed under sub-section (1) from the office of Mayor or from the office of Deputy Mayor shall not be eligible for election to either of the said offices until the date on which notice of the next ordinary elections to the Corporation is published in the prescribed manner." On a reading of the above provision, it is clear that the power amply vests with the Government for removal of the Mayor or the Deputy Mayor by issuing a notification in the Gazette where it opines that the said incumbent willfully omits or refuses to carry out or disobeys the provisions of the Act or Rules, bye-laws, regulations or lawful orders issued thereunder or abuses his position of the powers vested in him. The sub-Section 2 thereof provides an opportunity to the concerned incumbent for explaining to the allegations made against. Further, it contemplates that the ultimate notification issued under the said provision in the Gazette should contain the statement of reasons behind the action. Under sub-section 3, a clear bar is imposed against such removed incumbent from contesting for election to either of the said offices. Thus, no doubt, it follows that such drastic and virtually a penal action of removal should be based on the grounds mentioned therein and the order should disclose the reasons therefor and in support . There is thus a compliance as to the requirement of well-laid cannons of principles of natural justice for providing an opportunity and an order with reasons. Necessarily, it follows that there has to be a due application of mind, vis--vis, the grounds on which the action is to be taken and the explanation given by the incumbent, while coming to any conclusion and supported by reasons. The aforesaid provision finds place in Chapter XXI of the Hyderabad Municipal Corporation Act, 1955, which provides for the control with the Government. Amongst the other powers conferred in the different provisions there under, this provision gets squeezed in with a power to take an action for removal of a Mayor or Deputy Mayor, apart from other provisions for dissolving the Corporation and giving the directions etc. There is no dispute in regard to the applicability of the said provision to the corporation, since these provisions are made applicable to all the corporations in the State. The core contention put forth by the petitioner while assailing the validity is that the aforesaid provision viz., Section 679B of the Hyderabad Municipal Corporation Act, 1955 is in the teeth of the Part IX-A of the Constitution of India, which has been brought into force by Constitutional 74th Amendment Act, 1992 with effect from 1-6-1993. The said provision is existing prior to the said constitutional amendment, and thus, does not satisfy the mandate under the amended provisions of the Constitution, and in fact, the very action to remove an elected Mayor is contrary to the assured term of an elected Mayor, hence, the said provision is constitutionally invalid and liable to be strike down. For convenience sake, it is necessary to refer to the provisions under Part IX-A of the Constitution of India. For convenience sake, it is necessary to refer to the provisions under Part IX-A of the Constitution of India. It is only with a view to augment the directive under Article 40 of the Constitution and to make these local units to a solidified one, the Constitutional provision is made. Similarly, Part IX was added by way of Constitution 73rd Amendment Act, 1992 in respect of Panchayat Administration. Article 243P is a provision containing the definitions. Article 243Q contemplates the constitution of the municipalities, which include the municipal corporation. A provision is made under Article 243 (R) , (S) and (U) as to the composition of the respective committees and the reservation of seats therein. Article 243U prescribes duration of a municipality a period of 5 years. The other provisions are in respect of disqualifications, powers and authority and other financial aspects including imposition of tax etc., which are not necessary to be referred to for the purpose of present controversy. Thus, according to the petitioner, since this assured period of 5 years, a duration for which the petitioner is entitled to hold the office is being interdicted and intercepted by an action as contemplated under Section 679B of the Hyderabad Municipal Corporation, 1955, and hence, it requires to be struck down. It has to be seen that the duration as contemplated under Article 243U is in regard to a composite body of the municipality or Municipal Corporation, and it does not take in any exclusive right of an individual to hold any particular office in the elected body, and once the individuals were elected in the respective offices, they run with the said body of municipality and continue to enjoy the office during the said period but does not make them immune from for all actions. The prescribed period is in respect of such elected body and for an elected office, but subject to all such liabilities. Therefore, it cannot be said that this duration for the period prescribed would be irrespective of any personal vindication or involvement and incurring any disqualification etc, and such persons cannot be dealt with for such acts. Under Section 679B of the Municipal Corporation Act, 1955, it is only where the incumbent is shown that he is involved in such acts as contemplated therein, then it warrants initiation of action for removal, but not otherwise. Under Section 679B of the Municipal Corporation Act, 1955, it is only where the incumbent is shown that he is involved in such acts as contemplated therein, then it warrants initiation of action for removal, but not otherwise. It only reiterates an accountability to the office by an elected person. Certainly, it cannot be said that a democratically elected incumbent having regard to such assured period of 5 years term can get involved of such acts of willful omission or refuse to carry out or disobeys the provisions of the Act or rules, bye-laws, regulations or lawful orders and abuses his or her position of the powers vested in him or her. Otherwise, what is sought to be achieved for a democratic function of local administration can squarely be get defeated with such autocratic actions or deeds or acts, which are not only contrary to the law, but not in the public interest or in the interest of the very local institution. Therefore, though the said provision under Section 679B of the Hyderabad Municipal Corporation Act is prior to the introduction of Part IXA of the Constitution, however, there is nothing, which can be said to run in contradiction to each other or defeat in what is contemplated under the Constitution but is a solemn statutory endeavour. Therefore, prima facie we do not find any merits in the contention urged on behalf of the petitioner to and we hold that the said provision is not violation of Constitution 74th Amendment 1992 and hence valid. Another argument of the petitioner is that under the said provision of Section 679B of the Hyderabad Municipal Corporation Act a total absolute power has been conferred on the government without any guidelines or para-meters laid down. Thus, such power is un-bridled one, and hence violates Article 14 of the Constitution of India. For the purpose of testing the provision under the touchstone of reasonableness under Article 14 of the Constitution of India, it is to be seen that the provision does not confer any such one sided exercise by the Government. Ample safeguards have been provided for both in the interest of the administration and as well as the incumbent involved. For the purpose of testing the provision under the touchstone of reasonableness under Article 14 of the Constitution of India, it is to be seen that the provision does not confer any such one sided exercise by the Government. Ample safeguards have been provided for both in the interest of the administration and as well as the incumbent involved. It contemplates that where such grounds as contemplated there under found to exist, and that too after giving due and sufficient opportunity and considering the explanation in due perspective, the decision has to be taken with a well-supported reasons. Though a separate enquiry is not contemplated, but the statute sounds vigil to the existence of valid grounds and not on a flimsy grounds. That apart, it cautions to add well laid reasons. Therefore, having regard to such cautious steps in the decision making process, we do not find any unreasonableness or arbitrariness to hold that the said provision in any way offends Article 14 of the Constitution of India. The learned Senior Counsel Mr S Ramachander Rao, placed reliance on a note made in Commentary On the Constitution of India- 8th Edition, 2007 by Durga Das Basu that "the Supreme Court has evolved an additional ground for interference under Article 14, namely, non-arbitrariness.... What Article 14 strikes at is arbitrariness because an action that is arbitrary, much necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Art.14 nor in it the objective and end of that Article; Wherever, therefore, there is arbitrariness in state action, whether it be of the legislature or of the executive or of an "authority" under Article 12, Article 14, immediately springs into action and strikes down such action."....... However, the Supreme Court in Government of Andhra Pradesh and others Vs P Laxmi Devi 1 considering the scope of the interference under Article 226 of the Constitution of India vis--vis Article 14 of the Constitution of India held that "likelihood of abuse of discretionary power conferred under statute , reiterated, does not render the statutory provision unconstitutional. There is always a difference between a statute and the action taken under the statute. There is always a difference between a statute and the action taken under the statute. The statute may be valid and constitutional, but the action taken under it may not valid." The Supreme Court in Government of Andhra Pradesh and another Vs G/.Jaya Prasad Rao and others 2 held that "arbitrariness/discretionary power- likelihood of abuse, is no ground to strike down a constitutionally valid classification. Misuse can be challenged as an individual instance, where sufficient guidelines are provided the provision will be upheld as constitutional." We thus hold that the provision under Section 679B of the Hyderabad Municipal Act neither violate any part of Part IXA of the Constitution of India nor Article 14 of the Constitution of India, hence, the same is valid. The other ground on which the petitioner seeks to attack the impugned action is on the ground of mala fides, it has been contended that the allegations as contained in the show cause is not on any due consideration or applying its own mind, but on the true extracts virtually verbatim from the complaints received by the government. Therefore, the government did not give any thought to these allegations to see, if any, case is made out to warrant such a serious punitive action. Further, even though as evident now there has been two reports with preliminary enquiries, the same is not forming part of the contents of the show cause notice nor the charges leveled against in the show cause notice are based on the contents or the findings from those reports. There is a clear suppression of these reports from the petitioner. It is only, in the course of these proceedings through counter affidavit, those reports have come to light. That apart, the said reports are not supplied to the petitioner. Even otherwise, it is the contention of the petitioner that the respondent No.3 being brother of a Minister in the cabinet is closer to the power quarters, and who having become inimical to the petitioner is responsible for the entire action. It is only at his instance, the petitioner is being sought to be mulcted with the threat of removal from a validly elected office. It is only at his instance, the petitioner is being sought to be mulcted with the threat of removal from a validly elected office. Considering these submissions as pointed out in the counter affidavit filed by the respondent No.1, it is revealed that initially a complaint was filed on 1-11- 2006 by the corporators belonging to all the parties making allegations against the petitioner, whereupon the government has ordered for an enquiry on 3-8-2007. The said enquiry officer submitted a report on 31-3-2008, which has been forwarded to the government on 19-4-2008 where the findings are stated to be against the petitioner. Subsequently, having regard to the later complaints by about 23 corporators on 31-8-2008, including the respondent No.3 followed by another complaint on 23-4-2008, government has ordered for an enquiry on 5-5-2008. Thereupon, a report was given on 20-5-2008 finding against the petitioner. Subsequently, the present show cause notice has been given on 13-6-2008 calling upon the petitioner to explain as to why she should not be removed from the office. There is no serious dispute by the petitioner to the fact that the complaints referred to above are not exclusively signed by the respondent No.3, but are signed by several other corporators, who belong to different parties. There is no, complaint as such signed by the respondent No.3 individually making any allegation against the petitioner. Even though, the elections were conducted on a party-wise basis and corporators got elected with affiliation to different parties, there is a consistency among such corporators coming from different parties by one voice raising certain allegations against the petitioner. The respondent No.3 being a local member of Legislative Assembly is an Ex-officio member of the Council as contemplated under Article 243R (2) of the Constitution. Therefore, in his capacity as one of the corporator/member of the Council, apart from being a public representative in the assembly, is entitled to raise any objections or file any complaints, if aggrieved. Merely because he happened to be a brother of a Minister in the Cabinet of the Government, that itself cannot be a ground to clothe him with any user of influence at any level. There is nothing on record to show that being a brother of the Cabinet Minister there is any other act on his part to draw any inference. There is nothing on record to show that being a brother of the Cabinet Minister there is any other act on his part to draw any inference. It is needless to mention that as a member of the Council, and more so, in his capacity as a member of Legislative Assembly, he along with other members is concerned with the affairs of the institution. Another curious aspect to note is that neither in any of the pleadings of the petitioner there is any explanation or much less an attribution as to why and how all other corporators belonged to different parties raised hue and cry with those allegations repeatedly all along in various complaints filed before the Government. Therefore, in the absence of any such wholesale acceptable attribution, it cannot be said that it is the respondent No.3 alone who is behind the entire impugned action, and thus he could be found fault with on the foot of malice. Therefore, we do not find any prima facie case or any merits in the contention urged on behalf of the petitioner that it is only due to the respondent No.3 who is responsible for the impugned action, and thus the same gets mulcted with any mala fides. Further, having regard to the facts and circumstances, especially, where the respondent No.3 himself as a member of the Council has ample locus to raise any such bogie, the allegation of mala fides cannot be attributed against him. As regards the other contention urged to the effect that the show cause does not indicate as to application of mind in respect of the allegations made against the petitioner, but are only abstracts from the complaints made against her. Further, even though the government is having two reports though on a formal fact finding preliminary enquiry, but the same is not referred to in the show cause nor the petitioner is put to any notice thereof. No doubt, as we have already pointed out at the stage of grant of interim orders that there is no explanation for such total silence on the reports in the show cause notice. Nor, even at this stage, it is the case of the respondents that the petitioner is furnished with any of those reports. No doubt, as we have already pointed out at the stage of grant of interim orders that there is no explanation for such total silence on the reports in the show cause notice. Nor, even at this stage, it is the case of the respondents that the petitioner is furnished with any of those reports. Necessarily, when such enquiries are conducted and reports are filed, though not a conclusive one, but, having stated that it is only on the basis of those reports and material available on record, a prima facie case was found to be existing and show-cause notice was issued. It follows that necessarily the person effected has to be provided with all the material and there cannot be any two opinions in this regard. The competent authority cannot keep any such material up his sleeves and act on it either before or after issuance of the show cause. It is too late in the day to uphold any such one sided actions on the part of any authority. Further, having regard to the penal nature of the proceedings, nothing can be shielded nor the party effected can be denied of knowledge with such material, which forms part of the proceedings and which is also stated to have been relied on. In fact, it is the case of the respondent No.1 that apart from the allegations as contained in those complaints, having regard to the material available including those two reports dated 31-3-2008 and 20-5-2008, a prima facie conclusion has been arrived at and a show cause notice was given. In such case, the government cannot have any justification to suppress the same and make use for any purpose whatsoever. No doubt, a show cause notice need not contain a discussion in regard to the allegations made against individual except putting such individuals to notice for the purpose of explanation. However, in this case, as rightly pointed out by the learned Senior Counsel appearing for the petitioner, nothing has been stated in regard to the findings given in these two reports mentioned above. Hence, we hold that the show-cause notice as has been framed and issued in the present case on 13-6-2008 minus the reports against the petitioner is not a proper one. Hence, we hold that the show-cause notice as has been framed and issued in the present case on 13-6-2008 minus the reports against the petitioner is not a proper one. Though we do not wish to go into the correctness of the allegations made therein in the complaint since it is not open for this Court to sit over the same for making any re-appreciation, as held by the Supreme Court in Shamshad Ahmad and others Vs. Tilak Raj Bajaj (deceased ) through LRs and others3. The relevant portion reads as under; "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of appeal or a Court of error. It can neither review nor re- appreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law" However, it is now well laid principle that normally this court would not exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to interdict or interfere with the proceedings at the stage of mere issuance of show cause, except where it is found that the very inception of the proceedings and issuance of show cause notice is one without jurisdiction or in any way effected by mala fides. Admittedly, in this case, it is not the case of the petitioner that the respondent No.1 has no powers or jurisdiction to initiate such proceedings or issue such show cause notice. Simultaneously with the attack of the very provisions under Section 679B of the Hydrabad Municipal Act on the vice of legislation an added ground is made as to the mala fides attributing against respondent No.3. We have already found the said provision is constitutionally valid. Simultaneously with the attack of the very provisions under Section 679B of the Hydrabad Municipal Act on the vice of legislation an added ground is made as to the mala fides attributing against respondent No.3. We have already found the said provision is constitutionally valid. As regards the plea of mala fides is also, we did not accept the same, and did not find favour with the petitioner on the said count. Hence, now it comes back to the situation where this Court can intercept the proceedings of the show cause on such irregularity as pointed out above. No doubt, any such irregularities can constitute to be valid objection on the part of the petitioner in the explanation to be filed, and necessarily the same has to be taken into consideration at the time of ultimate consideration. In this case, it is stated by the petitioner that she has already filed an explanation to avoid any technicalities. However, all these objections may not find place in the said explanation. In the circumstances, we are of the view that since the impugned action is only at a show cause, we refrain from going into such correctness or otherwise nature of the impugned action or any allegation or counter allegation made. However, having regard to the facts and circumstances, we deem it more appropriate to direct that the petitioner shall be given a fresh liberty of filing explanation to the said show cause notice including on the aforesaid reports dated 31-3-2008 and 20-5-2008. The respondent No.1 is directed to furnish copies of the said reports within a period of two weeks from today, and on receipt thereof, the petitioner shall file the necessary explanation within a period of two weeks thereafter. On receipt of explanation, it shall be open for the respondent No.1 to pass appropriate orders, on merits and in accordance with law. Subject to the aforesaid directions, the writ petition is dismissed, however, in the circumstances no costs.