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Andhra High Court · body

2010 DIGILAW 1053 (AP)

Ganta Sandhya v. Revenue Divisional Officer

2010-10-25

C.V.NAGARJUNA REDDY

body2010
Judgment : COMMON ORDER: These two Writ Petitions are filed by the President and the Vice-President of Mudinepally Mandal Parishad, Krishna District for a mandamus to declare the action of respondent No.1 in purporting to conduct a meeting on 6-9-2010 or any other date for expression of “want of confidence” as illegal and ultra vires the provisions of A.P.Panchayat Raj Act, 1994 (for short “the Act”) and consequently direct respondent No.1 to abide by the law and forbear from holding a meeting for expression of “want of confidence” on 6-9-2010 or any other date. As many as 12 members of Mudinepalli Mandal Parishad moved two separate motions in Form-II under the rules governing Motion of no confidence in Upa-Sarpanch of Gram Panchayat or Vice-President, President of Mandal Parishad or Vice-Chairperson/Chairperson of Zilla Parishad, notified in G.O.Ms.No.200, PR & RD (Mandal-I), dated 28-4-1998 (hereinafter referred to as “the Rules”) against the petitioners in the two Writ Petitions who are Sarpanch and Upa-Sarpanch respectively. Along with the letters addressed to respondent No.1, the members enclosed two motions expressing want of confidence in the petitioners. Acting on the said letters and the motions, respondent No.1 has issued notices in accordance with the procedure prescribed by the Act and the Rules with respect to which there is no dispute. Respondent No.1 has fixed 6-9-2010 as the date of meeting for putting the motions to vote. These notices are assailed in these Writ Petitions. This court, while ordering notice before admission in both the writ petitions, permitted the meeting to go on but directed that no further steps shall be taken pending further orders. Separate counter affidavits have been filed along with the vacate stay applications by the Revenue Divisional Officer, Gudivada Division and respondent Nos.2 to 13. At the hearing, Sri Vedula Venkataramana, the learned Senior Counsel appearing for the petitioners advanced the only submission, namely, that the motions moved by respondent Nos.2 to 13 expressing want of confidence is not in conformity with Section 245 of the Act. According the learned Senior Counsel, the provisions of Section 245 of the Act envisage “motion of no confidence” and not “motion expressing want of confidence”. The learned Senior Counsel placed reliance on Rules 2, 3 and 8 of the Rules in support of his submission, besides Section 245 of the Act. According the learned Senior Counsel, the provisions of Section 245 of the Act envisage “motion of no confidence” and not “motion expressing want of confidence”. The learned Senior Counsel placed reliance on Rules 2, 3 and 8 of the Rules in support of his submission, besides Section 245 of the Act. The learned Government Pleader for Panchayat Raj and Sri R.Radha Krishna Reddy, the learned counsel representing respondent Nos.1 and 2 to 13 respectively, opposed the above contentions and submitted that though the heading of Section 245 of the Act referred to “motion of no confidence”, the body of the said provision and the Rules referred to “want of confidence” and that therefore there is no illegality in the procedure followed by the respondents in moving the motions. I have carefully considered the submissions of the learned counsel for the parties. For better understanding of their scope, it is necessary to reproduce the relevant provisions herein below : Section 245:- Motion of no confidence in Upa-sarpanch, President or Chairperson: (1) A motion expressing want of confidence in the Upa-sarpanch or President or Vice-President or Chairperson or Vice-Chairperson may be made by giving a written notice of intention to move the motion in such form and to such authority as may be prescribed, signed by not less than one-half of the total number of members of Mandal Parishad or as the case may be the Zilla Parishad and further action on such notice shall be taken in accordance with the procedure prescribed : Provided that no notice of motion under this section 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. Explanation:- For the removal of doubts, it is hereby declared that for the purpose of this section the expression “total number of members” means, all the members who are entitled to vote in the election to the office concerned inclusive of the Sarpanch, President or Chairperson but irrespective of any vacancy existing in the office of such members at the time of meeting : Provided that a suspended office-bearer or member shall also be taken into consideration for computing the total number of members and he shall also be entitled to vote in a meeting held under this section. (2) If the motion is carried with the support of two thirds of the total number of members in the case of a Upa-Sarpanch, the Commissioner shall and in the case of the President or Vice-President or the Chairperson or Vice-Chairperson, the Government shall by notification remove him from office and the resulting vacancy shall be filled in the same manner as a casual vacancy. Explanation:- For the purposes of this section, in the determination of two-thirds of the total number of members, any fraction below 0.5 shall be ignored and any fraction of 0.5 or above shall be taken as one. Rule 1:- A motion expressing want of confidence in the Upa-Sarpanch of the Gram Panchayat, or President or Vice-President of a Mandal Parishad, or Chairperson or Vice-Chairperson of a Zilla Parishad may be made in accordance with the procedure prescribed in these rules. Rule 1:- A motion expressing want of confidence in the Upa-Sarpanch of the Gram Panchayat, or President or Vice-President of a Mandal Parishad, or Chairperson or Vice-Chairperson of a Zilla Parishad may be made in accordance with the procedure prescribed in these rules. Rule 2:- A notice of the intention to make the motion shall be made n 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, mandal 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 Upa-Sarpanch of a Gram Panchayat, or President and Vice-President and Vice-President of a Mandal Parishad; or to the District Collector in the case of Chairperson or Vice-Chairperson or 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. Explanation:- For the purpose of this rule, it is hereby clarified that: (i) In the determination of one-half of the total number of members under this rule any fraction below 0.5 shall be ignored and any fraction of 0.5 or above 0.5 shall be taken as one. (ii) The expression “total number of members” means all the members who are entitled to vote in the election to the office concerned inclusive of the Sarpanch, President or Chairperson, as the case may be, but irrespective of any vacancy existing in the office of such member at the time of meeting: Provided that a suspended office bearer or member shall also be taken into consideration for computing the total number of members and he shall also be entitled to vote in a meeting held under this rule. Rule 3 :- The concerned officer specified in Rule 2 (hereinafter in this rule referred to as said officer) shall then convene and preside over a meeting for the consideration of the motion at the office of a Gram Panchayat, or at the Mandal Parishad or at the Zilla Parishad, as the case ay be, on a date appointed by him which shall not be later than thirty days from the date on which the notice under Rule 2 was delivered to him. He shall give to every member of Gram Panchayat, Mandal Parishad or Zilla Parishad, as the case may be, the notice of not less than fifteen clear days excluding the date of the notice and the date of the proposed meeting of such meeting in Form V or in Form VI annexed to these rules either in English or in Telugu or in Urdu language, whichever is applicable. Every such notice shall be delivered as specified below, namely:- (a) by giving or tendering such notice to such member, or (b) if such member is not found, by leaving such notice at his last known place of residence or business or by giving or tendering the same to some adult member or servant of his family; or (c) If such member does not reside in the Gram Panchayat area or Mandal Parishad area, or within the District and if his address is known to the District Panchayat Officer/Chief Executive Authority/Collector or the Sarpanch of the Gram Panchayat to be elsewhere, by sending the same to him through registered post with Acknowledgement due; or (d) if none of the means aforesaid is available or if the persons referred to in clauses (a) and (b) refuse to receive the notice, by affixing the same at some conspicuous part of his place of residence or business: Provided that where the holding of such meeting is stayed by an order of a court, it shall be adjourned, and the said officer shall hold the adjourned meeting on a date not later than thirty days from the date on which he received the intimation about the vacation of stay and after giving to the members, a notice of not less than fifteen clear days excluding the date of the notice and the date of the proposed meeting of such adjourned meeting. Rule 8:-As soon as the meeting convened under the said rule commences, the said officer shall read to the members of the Gram Panchayat or the Mandal Parishad; or as the case may be to the members of the Zilla Parishad present in the meeting, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate. The voting shall be by show of hands. A careful analysis of the above reproduced provisions would reveal that if not less than one half of the total number of members of any local body envisaged in the provisions intend to express no confidence, they are required to issue a motion in this regard. Interestingly, while the heading of Section 245 of the Act uses the phrase “no confidence”, the provision starts with the opening words “Motion expressing want of confidence”. Similarly, while the introductory part of the Rules mentions “…….the Governor of Andhra Pradesh hereby makes the following Rules for moving of the motion of no confidence…..”, Rule 1 again uses the expression “A motion expressing want of confidence”. Rules 2 and 3 merely use the word “motion”. In my opinion, the Legislature has used the expressions “no confidence” and “want of confidence” as synonymous expressions. The heading of a provision, it is trite, cannot be used to give a different effect to clear words in the Section. Lord Goddard, CJ, in R vs. Surrey (North Eastern, Area) Assessment Committee (1947) 2 All.E.R. 276 ) held : “….While, however, the court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is clear that those headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words.” In CIT vs. Ahmedbhai Umarbhai ( AIR 1950 S.C. 134 ), Patanjali Shastri, J, held that the title of a Chapter cannot be legitimately used to restrict the plain terms of the enactment. In Frick India Ltd. vs. Union of India ( AIR 1990 S.C. 689 ), the Supreme Court held: “It is well settled that the headings prefixed to sections or entries (of a Tariff Schedule) cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.” In Eastern Coalfields Ltd. vs. Sanjay Transport Agency ( 2009 (5) SUPREME 1 ), the Supreme Court held at para-5 as under: “It is well settled rule of interpretation that the section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The section heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the section which follows than might be afforded by a mere preamble. The said interpretation can well be applied to understand and construct the various clauses of an arbitration agreement also, which is in the realm of commercial contract. While interpreting so, the Court may not depend only on the text but context as well in order to fully comprehend the context and the meaning of the clause.” (emphasis added) It is not the pleaded case of the petitioners nor it is advanced by the learned Senior Counsel at the hearing that the Act and the Rules envisage two different kinds of motions, namely, “no confidence” and “want of confidence”. Though the meaning of both these expressions may slightly vary in the sense that in case of “no confidence”, there is complete absence of confidence, while the expression “want of confidence” may indicate deficiency in confidence, I am of the opinion that the Legislature in its wisdom has used both these phrases as synonymous or interchangeable expressions rather than to deploy them in different situations. Admittedly, there is no prescribed form for the motion to be moved by the members. A perusal of the record shows that in both the Writ Petitions, a copy of the motion moved in case of Vice-President, Mandal Parishad is filed, obviously by mistake, though in the affidavit in W.P.No.21058/2010, it is averred that separate motion against the President also was moved. As the contents of both the motions are stated to be identical, it will suffice to extract the motion moved against the petitioner in W.P.No.21048/2010, by respondent Nos.2 to 13, which reads as hereunder : “We express want of confidence in Sri Vallabhaneni Das, Vice-President, Mandal Parishad, Mudinepalli under sub-section (1) of Section 245 of the Andhra Pradesh Panchayat Raj Act, 1994 (Act No.13 of 1994)” On a careful consideration of the provisions of Section 245 of the Act and the Rules referred to above, in the light of the case law discussed above, I am unable to accept the submission of the learned Senior Counsel that the motions moved by respondent Nos.2 to 13 expressing “want of confidence” in stead of “no confidence” suffer from any illegality or that the same is not in conformity with the provisions of the Act and the Rules. The purpose and object of the motion being to convey the intention of the members to express lack of confidence in the elected representatives, the same is adequately served by moving the motions by the members concerned (respondent Nos.2 to 13). Irrespective of the phraseology used in the motions, respondent Nos.2 to 13 were able to express in unambiguous terms their intention to move motions as envisaged by Section 245 of the Act and the above mentioned Rules and no prejudice is pleaded by the petitioners on account of deployment of the words “no confidence” in stead of “want of confidence” in the motions. For the above reasons, I do not find any ground to interfere with the impugned action and the Writ Petitions are accordingly dismissed.