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2011 DIGILAW 216 (AP)

Torlakonda Mangamma v. Government of A. P.

2011-03-11

B.PRAKASH RAO, V.SURI APPA RAO

body2011
Judgment : Common Judgment: (V. Suri Appa Rao, J.) 1. The writ appeals are directed under Clause 15 of the Letters Patent against the orders of the learned single Judge in Writ Petition Nos.27245 of 2010 and 17903 of 2010, whereby the learned single Judge dismissed W.P.No.27245 of 2010 and disposed of W.P.No.17903 of 2010 by setting aside the impugned proceedings i.e., in Form V dated 13-7-2010 initiated by the 3rd respondent for moving “No Confidence Motion” against the petitioner with a liberty to the respondents to initiate fresh steps for moving “No Confidence Motion” against the petitioner. 2. The orders passed by the learned single Judge in both the writ petitions arising out of same proceedings initiated by the 3rd respondent for moving “No Confidence Motion” against the petitioner and a common question of law is involved in both the writ appeals, both the writ appeals are, therefore, disposed of by this common judgment. 3. Relevant facts lading to these writ appeals are as follows: The petitioner is the President of Rompicherla Mandal Praja Parishad. The term of office of the President or Vice President of the Mandal Praja Parishad as per Section 153 (5) of the Andhra Pradesh Panchayat Raj Act, 1994 (hereinafter called as ‘the Act, 1994’) is 5 years from the date of appointment by the A.P. Election Commission to local bodies for the first meeting of the Mandal Parishad after the ordinary elections. The first meeting as per the notification of the State Election Commission, Secunderabad vide No.1589/SCC/B1/2006 dated 15-7-2006 was held on 22-7-2006 at 3 p.m., and the same was recorded by the Mandal Parishad Development Officer, Mandal Parishad, Rompicherla. Thus, the term of 4 years was completed only by 21-7-2010 as the petitioner was elected as President of Rompicherla Mandal on 22-7-2006 along with other Members and Vice President. Therefore, “No Confidence Motion” vide proceedings in Form V dated 13-7-2010, which was sought to be moved before the completion of 4 years term of office of Mandal Parishad President is illegal and violative of the provisions of Section 245 of the Act, 1994. Therefore, “No Confidence Motion” vide proceedings in Form V dated 13-7-2010, which was sought to be moved before the completion of 4 years term of office of Mandal Parishad President is illegal and violative of the provisions of Section 245 of the Act, 1994. The 3rd respondent issued a Notice dated 13-7-2010 informing her that he is convening a meeting on 13-7-2010 at 11 a.m., in the office of the Mandal Parishad, Rompicherla to consider the alleged proposed “No Confidence Motion”, against which he filed W.P.No.17903 of 2010 and the same was disposed of on 08-10-2010, wherein the impugned proceedings are set aside and the writ petition is disposed of with a liberty to the respondents to initiate fresh steps for moving “No Confidence Motion”. Earlier also, a representation was submitted on 22-01-2010 against the petitioner, but the same is failed. Thus, again for the 3rd time a representation was submitted against the petitioner on 27-10-2010 and the 3rd respondent issued Notice dated 28-10-2010 convening a meeting on 16-11-2010 for moving “No Confidence Motion” against her for the 3rd time. As per the second proviso of Section 245 of the Act, 1994, the said notice is prohibited as no such notice shall be made as against the petitioner more than once during his term of office. Therefore, no “motion for no confidence” can be moved against her. 4. The petitioner thereafter filed W.P.No.27245 of 2010 under Article 226 of the Constitution of India to issue an appropriate order or direction particularly in the nature of Writ of mandamus declaring the Notice issued in Form V dated 28-10-2010 by the 3rd respondent to the petitioner as arbitrary, illegal, irregular and unconstitutional and violative of the principles laid down under the law and the provisions laid down under Section 245 of the Act, 1994. 5. After hearing, the learned single Judge dismissed the said writ petition on the ground that the impugned motion requires to be treated as a motion moved for the first time and that the bar under second proviso of Section 245 of the Act, 1994 is not attracted. 5. After hearing, the learned single Judge dismissed the said writ petition on the ground that the impugned motion requires to be treated as a motion moved for the first time and that the bar under second proviso of Section 245 of the Act, 1994 is not attracted. The learned single Judge further observed that the petitioner having taken advantage of getting the previous motion invalidated and agreed for initiation of steps for fresh motion by the respondents in the previous writ petition i.e., W.P.No.17903 of 2010, the writ petitioner is not entitled to invoke the discretionary jurisdiction of this Court. 6. Aggrieved by the above orders passed by the learned single Judge in W.P.Nos.17903 of 2010 and 27245 of 2010, the petitioner filed these two writ appeals mainly on the ground that the 3rd attempt to move “No Confidence Motion” against the petitioner is hit by second proviso to Section 245 of the Act, 1994. 7. The learned counsel for the appellant submitted that no motion, for no confidence, can be moved against the same person within the tenure of the petitioner more than once as per second proviso to Section 245 of the Act, 1994. 8. In support of his contention, the learned counsel for the appellant placed reliance on the following judgments of the Hon’ble Supreme Court: (1) In Nasiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543 , the Hon’ble Supreme Court held as follows: “The question whether a particular provision of a statute which on the face of it appears mandatory-inasmuch as it uses the word “shall” as in the present case – or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision if the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.” (2) In RAZA BULAND SUGAR COMPANY LIMITED, RAMPUR vs. Municipal Board, Rampur AIR 1965 SC 895 , the Hon’ble Supreme Court held as follows: “The Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the Legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression ‘shall or may’ is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of to the Legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the Courts will presume that the intention of the Legislature was that the provisions are mandatory in character.” (3) GOVINDLAL CHHAGANLAL PATEL vs. AGRICULTURAL PRODUCE MARKET COMMITTEE (1975) 2 SCC 482 . In this case, the Hon’ble Supreme Court held as follows: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. In this case, the Hon’ble Supreme Court held as follows: “The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one-way or the other.” Thus, the governing factor is to the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word ‘shall’ or ‘may’ is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.” (4) MANSUKHLAL VITHALDAS CHAUHAN vs. STATE OF GURAJAT (1997) 7 SCC 622 . In this case, the Hon’ble Supreme Court pointed out that, “Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words “shall” or “must”. But this is not conclusive as “shall” and “must” have, sometimes, been interpreted as “may”. What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the Statute in which the “duty” has been set out. Even if the “Duty” is not set out clearly and specifically in the Statute, it may be implied as correlative to a “Right”.” (5) RAMESH vs. SHESHRAO (1998) 9 SCC 113 . Even if the “Duty” is not set out clearly and specifically in the Statute, it may be implied as correlative to a “Right”.” (5) RAMESH vs. SHESHRAO (1998) 9 SCC 113 . In the above case, Sheshrao, 1st respondent, was the Sarpanch of a Gram Panchayat. A motition of no confidence was moved against him which was passed by majority of the panchas in a meeting held on 08-3-1995. He challenged the same by raising a dispute under the Bombay Village Panchayats Act, 1958 before the Additional Collector of the District who rejected the same on 21-4-1995. The 1st respondent then preferred an appeal before the Divisional Commissioner which was allowed by order dated 22-01-1996 on the ground of want of a valid notice. The effect of the order was that the motion of no confidence was treated to be invalid. Thereafter, another motion of no confidence was moved by 8 out of 11 panchas on 03-02-1996. The motion was passed by an overwhelming majority of the panchas on 09-02-1996. The 1st respondent has then raised a dispute before the Additional Collector who rejected the same. An appeal to the Divisional Commissioner by the 1st respondent has been allowed by the order dated 14-8-1996. The appellant who is one of the panchas filed a writ petition in the High Court challenging the Commissioner’s order. That writ petition has been dismissed by the impugned order dated 14-10-1996. The petitioner filed Special Leave Petition. The Hon’ble Supreme Court allowed the appeal observing that the objective of the provision clearly is to prevent frivolous “No Confidence Motions” repeatedly within one year if the earlier one has not even moved or has been defeated because of want of requisite majority for passing the same. 9. The appellant herein filed these two writ appeals challenging the orders of the learned single Judge and the Notice issued by the 3rd respondent in Form V dated 28-10-2010 for moving “No Confidence Motion” against the petitioner mainly basing on the principles laid down under law and the amended provisions of Section 245 of the Act. 10. 9. The appellant herein filed these two writ appeals challenging the orders of the learned single Judge and the Notice issued by the 3rd respondent in Form V dated 28-10-2010 for moving “No Confidence Motion” against the petitioner mainly basing on the principles laid down under law and the amended provisions of Section 245 of the Act. 10. Therefore, the point which arises for consideration is to be answered with reference to Section 245 of the Act, which reads as under: “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 Praja Parishad or as the case may be the Zilla Praja 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.” 11. A glance of the above said provision will immediately indicate that no motion, for no confidence, can be moved against the same person within his/her tenure more than once. The petitioner filed copies of representations of the Members dated 22-01-2010, Form II dated 27-10-2010 and Form V dated 28-10-2010 for moving “No Confidence Motion” against her. The impugned Notice in Form V dated 28-10-2010 was admittedly issued by the 3rd respondent for the third time. The significant words in the second proviso to Section 245 of the Act clearly indicates that “no such notice shall be made against the same person more than once during his/her term of office. 12. Admittedly, the impugned notice in Form V dated 28-10-2010 issued by the 3rd respondent to the petitioner is for the third time, which is prohibited as per the second proviso to Section 245 of the Act. Therefore, in view of the principles laid down under the law and the clear provision of Section 245 of the Act, we are of the considered view that the impugned orders dated 02-11-2010 and 08-10-2010 in W.P.Nos.27245 of 2010 and 17903 of 2010, respectively, passed by the learned single Judge are not sustainable under the law and accordingly they are set aside. 13. Both the writ appeals are, therefore, allowed and the impugned orders dated 02-11-2010 and 08-10-2010 in W.P.Nos.27245 of 2010 and 17903 of 2010, respectively, passed by the learned single Judge are set aside. No costs.