Andhra HC (Pre-Telangana)
Yeni Reddy Raghava Reddy vs Government Of A.P., Secretary, ... on 22 February, 1999
Equivalent citations: 1999(2)ALD298, 1999(2)ALT175, AIR 1999 ANDHRA PRADESH 258, (1999) 2 ANDHLD 298 (1999) 2 ANDH LT 175, (1999) 2 ANDH LT 175
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER M.S. Liberhan, C.J.
1. The appellant (hereinafter referred as "the petitioner") was elected as the President of the Mandal Parishad, Prathipadu, constituting of 12 members. 8 out of the 12 members moved a motion for want of confidence in the President before the Revenue Divisional Officer, Guntur, on 7-11-1998. As a consequence of that, a notice was issued to the members for the proposed vote of no-confidence. The notice was issued on 9-11-1998 for the meeting to be held on 1 -12-1998 at 11.00 a.m. The sole contention raised by the learned Counsel for the petitioner is that since the notice in Form-V did not have the copy of the proposed motion of no confidence in Form-11 as the true copy, inasmuch as it did not contain the names or signatures of the persons, who delivered the notice of no-confidence in Form-11 to the Revenue Divisional Officer, Guntur, the vote of no-confidence cannot be sustained.
2. The learned Counsel for the appellant submitted that certain procedure is prescribed under the rules framed by the Government vide GO Ms. No.200, Panchayat Raj & Rural Development (Mandal-I) dated 28th April, 1998 relating to the Motion of No-Confidence in Upa-Sarpanch of Gram Panchayat or Vice-President/President of Mandal Parishad or Vice Chairman/Chairman of Zilla Parishad. Rule 2 provides that a notice of intention to make a motion would be made in Form-1, in Form-II and in Form-Ill annexed to the Rules. Such a notice would be signed by not less than one half of the total members of the Mandal Parishad and it shall be delivered in person by any of the two members who signed such notice to (he Revenue Divisional Officer. These are the twin essentials as provided by Rule 2. On receipt of such notice, it was enjoined upon the Revenue Divisional Officer to convene and preside over a meeting for consideration of the motion on a date appointed by him, which shall not be later than thirty days from the date on which notice under Rule 2 was delivered lo him. it was further made incumbent that the officer would serve a notice of not less than 15 clear days excluding the date of notice and the date of proposed meeting in Form-lV, or Form-V or Form-VI annexed to the Rules to each of the members of the Mandal Parishad. The notice was required to be served either by giving or tendering as the case may be and if such member is not found, by leaving such notice at his last known address or tendering to some adult member of the family of the said member or servant of his family so on and so forth. Hie rest of the rules are not relevant. The text of the prescribed notice in Form-V should be that a notice of intention to make a motion expressing want of confidence has been made and delivered to the authorised officer under sub-section (2) of Section 245 of the Andhra Pradesh Panchayat Raj Act, 1994 and that a meeting of the Mandal Parishad shall be held at the office of the Manda! Parishad on the date and time fixed for considering the said motion. The Form further prescribes that a copy of the proposed motion of No-Confidence is to be enclosed.
3. The learned Counsel for the petitioner submitted that the copy accompanied with the Form-V notice is not a copy at all of Form-II prescribed for presenting to the Revenue Divisional Officer and consequently, the vote of no-confidence is invalid.
4. Jurisprudentially, it is well established that in an election, ihe right of the elected person is neither a fundamental right nor an equitable right. It is a statutory right and can be exercised or taken away strictly in terms of the statute.
5. Statutory rules provide, as we have produced above, the use of Form-I or Form-II for presenting a notice for moving the motion of no-confidence, which in the facts of the present case, was in fact made. We have perused the record also. The notice proposing the vote of no-confidence does contain the signatures of eight persons, who are conccdingly more than half of the members of the Mandal Parishad in question. !t lias been delivered to the authorised officer by two members who signed such notice in presence of the Revenue Divisional Officer, who satisfied himself "that the signatures of the members have been verified with reference to my meeting attendance register and on scrutiny, they are found to be correct". Thus there is no defect in the presentation of the notice of vote of no-confidence.
6. The learned Counsel for the petitioner submitted that it is not the defect in the presentation of the notice but it is a defect in the service of notice in Form-V, required to be served on the members of the Mandal Parishad for holding the meeting on 1-12-1998 being not in conformity with Fonn-V, which states that a copy of the proposed motion of no-confidence is enclosed. This copy of the proposed motion of no-confidence was not enclosed with the notice in Form-V or served. Alternatively, it is contended by the learned Counsel for the petitioner that even assuming that the proposed motion of no-confidence in Form-11 as envisaged by the Rules has been enclosed with the notice in Form-V, it does not show the signatures of the persons who presented the said notice to the Revenue Divisional Officer. Consequently, the notice having not been accompanied by the true copy of the proposed motion of No-Confidence the same is invalid.
7. The learned Counsel for the contesting respondents refuted the submission of the learned Counsel for the petitioner and contended that the case set up by the learned Counsel for the petitioner is that the notice in Form-V did not accompany the true copy of the proposed motion of no-confidence in Form-II but the petitioner has not pleaded to that effect. Be that as it is, those provisions are only director)' and they would not render the notice invalid.
8. We have perused the record. The notice was served though the copy of the proposed motion of No-Confidence is not attached with the said notice. Be that as it is, nothing has been pointed out at the Bar whereby, by the Legislature, it has been provided that non-compliance of processual or procedural provisions of service of notice or the form of notice would render the vote of no-confidence invalid. The object of procedural law is to serve the person or apprise the person that a vote of no-confidence would be held on a particular date and at a particular time for consideration of the motion of No-Confidence. It is only the intention of the proposer which has to be intimated to the members, which has been categorically made in the present case. It cannot be assumed that the petitioner was not aware of the object of the meeting, time of meeting and place of meeting. There is nothing on record from which we can assume that even the copy of the proposed motion was not enclosed. If it would have been so, the members would have approached the authority stating that the notice does not carry the copy which is stated to have been enclosed with the notice. Official acts are presumed to have been done in due discharge of the duty as envisaged and contained in the notice. There is a presumption that a copy of the motion has in fact been enclosed unless contrary is proved. There is nothing to prove contrary to the record. There is no dispute that eight members out of the twelve members had proposed to move a vote of No-Confidence. The meeting was already held and it is a fact accomplished (hat out of the twelve members, eight have voted in favour of the no-confidence motion. The notice being only directory, the mere use of the word "shall", cannot give rise to it being a mandatory in the facts and circumstances of the case, and specially when no consequence for non-compliance of the requirements of the notice in Form-V has been provided by legislation. In view of this, we find no force in the submission of the learned Counsel for the petitioner thai the copy of the proposed motion of no-confidence has not been enclosed with Form-V notice.
9. In the alternative, as stand from the pleadings, the copy sent was only in Form-II which did not contain the names of the persons who presented the same to the Revenue Divisional Officer, which may, at the most, raise it to the pedestal of an irregularity which will not render the proceedings as non-est or bad. There are no pari materia provisions provided for to the effect that non service of true copy of the proposed motion of no-confidence would render the notice invalid.
10. For the reasons recorded above, we find no force in the appeal. We affirm the finding of fact arrived at by the learned single Judge to the effect that notice was served in Form-V and the notice to move a motion of no-confidence was duly presented, complying with Rule 2, by two persons in Form-II to the authority concerned and their signatures were also verified by the authority concerned. The appeal is accordingly dismissed. No order as to costs.