Andhra HC (Pre-Telangana)
Manujusna Kadam (Smt.) And Ors. vs Govt. Of A.P. And Ors. on 16 February, 1998
Equivalent citations: 1998(2)ALD448, 1998(2)ALT232, AIR 1998 ANDHRA PRADESH 195, (1998) 2 ANDHLD 448, (1998) 2 APLJ 149, (1998) 2 ANDH LT 232
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, Y.V. Narayana
ORDER B. Subhashan Reddy, J.
1. ln this writ petition No Confidence Motion moved against the 3rd petitioner is questioned.
2. While the 3rd petitioner is the Chairman of Zilla Parishad, Adilabad, the petitioners 1 and 2 are the members thereof representing Bhainsa and Wankidi Zilla Parishad Territorial Constituencies respectively.
3. The strength of Adilabad Zilla Parishad is 52 and 24 of them signed a No Confidence Motion against the 3rd petitioner and presented to the 2nd respondent for convening a meeting for considering the said motion and a notice dated 4-9-1997 was issued convening the meeting to consider the Motion of No Confidence on 20-9-1997.
4. W.P.No.22365/97 was filed before this Court on 15-9-1997 questioning the above motion of no confidence, but the same was withdrawn on 19-9-1997. Several reasons are stated for filing the said writ petition and withdrawing the same. But, we are not concerned with the said reasons. Fact is that the said writ petition was withdrawn and the motion was bound to come up for consideration on 20-9-1997. But, another writ petition No.23855-97 was filed seeking a lunch Motion on 19-9-1997 questioning the No Confidence Motion, but lunch motion was refused. Then the 3rd respondent had filed a suit in the Court of the Munsif Magistrate, Nirmal on 20-9-1997 in O.S.No.57 of 1997 and the said Court by its orders in IA 230/97 had granted injunction and when the No Confidence Motion was to consider at 2 p.m., the injunction orders were served on the 2nd respondent at 1.55 p.m. because of which No Confidence Motion could not be considered. Later, the suit was withdrawn on 29-9-1997. In between, the writ petition 23855/97 came up for admission on25-9-1997 and even though it was admitted, no interim orders were granted and the case was posted on 13-10-1997.
5. This writ petition was filed on 29-9-1997 questioning the No Confidence Motion on the following grounds:
(1) that the strength of Adilabad Zilla Parishad being 52, the Motion of No Confidence should have been submitted by not less than 26 persons, as 26 members constitute half of the strength of 52;
(2) that Motion, apart from the requirement of signatures of not less than 26 persons, should also contain reasons; and (3) Rule8 of the Rules concerning the No Confidence Motion, which prohibits any discussion on the Motion is infractive of basic features of the Constitution i.e. Rule of Law as also the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and consequently, ultra vires Section 245 of A.P.Panchayat Raj Act, The reliefs sought for are:
(1) that Motion of No Confidence enclosed to the notice dated 14-9-1997 should be declared as invalid and void ab initio as it was signed by less than half of the strength of Zilla Parishad and as it does not contain reasons;
(2) to declare that the Motion would not succeed unless supported by 35 ZPTC Members of Adilabad District in view of the provisions of Section 245 of A.P.Panchayat Raj Act and the Rules made thereunder and the provisions of Central Act 40 of!996;
(3) to declare Rule 8 of the Rules made under Section 245 of the Act which prohibits discussion on the Motion as ultra vires Section 245 of A.P. Panchayat Raj Act and the fundamental rights guaranteed under Articles 14 and 21 of Indian Constitution as also the rule of law being the basic feature thereof;
(4) to declare the action of the 3rd respondent in moving the Court of District Munsif, Adilabad by filing O.S. 57 of 1997 purported to be on behalf of the 3rd petitioner as mala fide by further declaring the said proceedings as invalid; and (5) to pass such orders as are deemed fit and proper.
6. The 2nd respondent i.e. the District Collector, Adilabad filed counter on his behalf and also on behalf of the 1st respondent stating that 24 ZPTC Members constitute the sufficient strength envisaged under Section 245 of Panchayat Raj Act, 1994 and that the same was validly moved after the prescribed period of two years and that 5 members could not be elected because of the Constitutional embargo and lhat even though Central Act 40 of 1996 came into force on 24-12-1996, and consequently the provisions of A.P.Panchayat Raj Act become applicable to scheduled areas, the result of the elections for 5 ZPTC Constituencies could not be declared in view of the orders of stay granted by the Supreme Court, that the meeting to consider the want of Confidence could not be held on the time-schedule because of the receipt of the injunction orders at 1.55 p.m. on 20-9-1997 and that because of the dismissal of the suit as not pressed on 29-9-1997 and consequential vacating of injunction order, the meeting was again scheduled to 21 -10-1997 at 11 am. and that notices were issued to all the 47 ZPTC Members along with a copy of the Motion of No Confidence, that Rules 8 to 9 of G.O.Ms.No. 137 relating to No Confidence Motion do not require the reasons for moving the No Confidence, that the right to elect and to be elected is neither a Fundamental Right nor the common law right and that it is a purely statutory right, that there is no violation of the provisions of Constitution or law and the Principles of Natural Justice and that the effective strength being 47, the Motion of No Confidence moved is perfectly in consonance with the provision and the statutory provision contained under Section 245, if properly construed connotes the effective strength and not the total strength and that in any event, when the Chairperson was elected, the effective strength was 47 and that 5 vacancies remain unfilled because of the Supreme Court stay orders and as such, strength should be taken only as 47.
7. Mr. S. Venkat Reddy, the learned Senior Counsel appearing for the petitioners strenuously contends that under Section 245 of Panchayat Raj Act, 1994, Ihe total strength of the Zilla Parishad should be reckoned for the purpose of computation of half the number thereof, and as such, the Motion moved with 24 signatories does not conform to the said statutory provision and as such is void ab initio. The second contention is that Section 245 and Rules 1,2,3,4,8,9 and 10 deany indicate that Motion expressing want of confidence must contain reasons or grounds or material relating to commissions and omissions of Chair-Person which form the basis for moving the motion. His third contention is that in a Rule of Law, every authority which is empowered to take action resulting in adverse civil consequences to a person can pass orders only on relevant grounds and not on the grounds which are arbitrary, unreasonable, unjust, irrational and whimsical and that reasons should be spelt-out in the Motion of No Confidence in order to (a) uphold rule of law; (b) to give meaning to right of judicial review; (c) to ensure proper application of mind; and (d) to satisfy compliance with Principles of Natural Justice. Alternatively, he contends that Rule 8 is ultra vires, as the 3rd petitioner is entitled to know the reasons and that the said right is one guaranteed under Article 19(1)(a) of the Constitution and deprivation of the same not only results in infraction of the Fundamental Right, but also the Principles of Natural Justice. Even Fundamental Right to life under Article 21 of Constitution is also pressed into service on the ground that removal by No Confidence Motion results in loss of reputation and that reputation is integral part of right to life and that the said right can be taken away only according to law supported by relevant grounds. The arguments were advanced by the learned senior Counsel even touching on Article 14 of the Constitution on the ground that the procedure adopted in the matter relating to No Confidence is arbitrary.
8. Mr. V. Venkataramanaiah, the learned Advocate-General, appearing for the Slate and the District Collector - respondents 1 and 2 - counters the arguments of the learned Counsel for the petitioners to the effect that the post of the Chairman of Zilla Parishad is one created under the Statute i. e. the Andhra Pradesh Panchayat Raj Act, 1994 and that the manner of election and also ouster by no confidence by other means are stated in the statute and that the No Confidence Motion has been moved in consonance with the statute and the rules framed thereunder and that the petitioners cannot claim more right than one prescribed under the statute and the rules framed thereunder and as there is no Fundamental Right or common law right is involved and statutory provisions do not envisage statement of reasons and also a debate on the same, the action taken by the 2nd respondent is perfectly legal and valid and no interference is called for. He supports the validity of Rule 8.
9. Mr. S. Ramachandra Rao, the learned senior Counsel appearing for respondents 3 and 4 supports the argument of the learned Advocate-General All the learned Counsel have cited judicial precedents in support of their arguments.
10. The Motion of No Confidence and the procedure to be followed therein is stated in Section 245.,of A.P.Panchayat Raj Act (hereinafter referred to as "the Act"). Rules have been framed thereunder in G.O. Ms. No.137, Panchayat Raj Department, dated 27-3-1997 (hereinafter referred to as "the Rules").
Section 245 of the Act reads:
"245. Motion of No Confidence in Upa-sarpanch, President or Chairman :-(1) A motion expressing want of confidence in the Upa-sarpanch or President or Vice-President or Chairman or Vice-Chairman 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 Chairman but irrespective of any vacancy existing in the office of such members at the time of meeting:
Provided that a suspended officebearer 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 not less than 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 Chairman or Vice-Chairman, the Government shall by notification remove him from office and the resulting vacancy shall be filled in the same manner as a casual vacancy."
11. If the total strength of the Zilla Parishad is taken into consideration, then half of the same would be 26 and then the motion moved with 24 signatories will not conform to the said requirement. Consequently, the entire process would become void and non est under law. But, the question is as to whether it is the total strength of the Zilla Parishad or effective strength. We make it clear that effective strength should not be construed as the members present. Statute does not use the words " total strength of the Zilla Parishad" and the words used are " the total number of members of Zilla Parishad". The emphasis is on the total number of members which need not necessarily be the total strength of the Zilla Parishad. There is a marked distinction between 'total number of members' and 'total strength of the Zilla Parishad'. If the total strength is taken into consideration for reckoning half of the same for entitling them to move the Motion of No Confidence and if the elections are not conducted to some territorial constituencies, whatever may be the reason, either for a period of two years or even thereafter, half of the number of members, even though want to move a No Confidence Motion, cannot move the same and ultimately, the provision itself may become redundant. As such, the Legislature has designedly employed the words " the total number of members " of the Zilla Parishad which only mean that the total number of members elected and not the total strength of the Zilla Parishad. That is the only reasonable way the above provision can be construed to give the desired effect to the purpose and intendment of the provision relating to No Confidence Motion. The decisions cited by Mr. S. Venkat Reddy in Shyamapada v. Abani Mohan, , Vishwasrao v. Vallab Mas, and Jangi Reddy v. State, do notrender any assistance to his arguments. In Shyamapada's case (supra) the words' whole number of commissioners' were construed as meaning the total number of elected seats of the Municipality. In the instant case, election to 5 tribal constituencies could not be held for the reason of stay granted by the Supreme Court mentioned above. As such, 5 seats of Adilabad Zilla Parishad cannot be said to be 'elected seats' and as such no members can be counted against the said 5 seats. In Viswasrao's case (2 supra), it was held that the criterion is the totality of the possible membership of the Samithi and not the number of members actually present at a meeting. Here, in the instant case, the possible membership of the Zilla Parishad is only 47 as the election could not be conducted for the remaining 5. Coming to Jangi Reddy's case (supra), election was conducted to all the seats of Panchayat Samithi, but, some members were disqualified, nevertheless, the totality of number of members of the Panchayat Samithi was taken into consideration. But, in the instant case, such is not the situation as the elections were not at all conducted and in fact, could not be conducted in view of the circumstances mentioned supra and as such the ratio in any of the decisions mentioned above cannot be applied to this case as the only possible total number of members was 47, 24 constituted the sufficient strength for presenting the motion and the same is perfectly legal and valid. Even the explanation to Section 245 will not help the arguments of the petitioners as the entire explanation as also the proviso thereto should be read as a whole along with the main section and reading as such, they only connote that total number of members are such members elected by due process of election and the words "irrespective of any vacancy existing in the office of such members at the time of meeting" cannot be stretched too far to assume the number of members who did not even enter the fray of elections and for whose constituencies the election was not at all conducted. That is so clear from the words preceding the same " all the members who are entitled to vote in the election to the office of the Chairman". In the instant case, only 47 members of Zilla Parishad constituted the electorate under Section 181 of the Act and the 3rd petitioner was elected from among those 47 members and the situation did not change even till this day. It is not a case where any member/s was/were elected, but ceased to hold office later. Infact, the proviso makes it very clear that a member or an office bearer who did not cease to hold office, but who is suspended shall be construed as a member entitling to vote in the No Confidence Motion. In view of what is stated above, several rulings cited by Mr. S. Venkat Reddy in M.Pentaiah v. Veeramallappa, , Haridwar Singh v. Begun Sumbrui, , Lachmi Narain v. Union of India, , Mannalal v.KedarNath, , A.K.Roy v. State of Punjab, , Sales Tax Commr.Gujarat v. Union Medical Agency, have got no bearing.
12. There is nothing in Section 245 to read with regard to the manner of consideration of No Confidence Motion, Statutory provision leaves the procedure to be prescribed under a statutory rule with regard to the same. Of course, the statutory rules framed have to conform to the object and intendment of the statute and we examine as to whether the rules are any way excess to or in derogation of the statutory provision. The complaint is against Rules 8 and 9. Under Rule 8, as soon as the convened meeting commences, the competent officer shall read the motion to the members of Zilla Parishad for consideration and shall put it to vote without any debate. The mode of voting is by show of hands. Rule 9 places embargo on the said officer not to speak on the merits of the motion and that he shall not be entitled to vote thereon. The learned Counsel for the petitioners lays emphasis on the word 'consideration' and submits that for consideration of motion, reasons should be stated and non-disclosure of reasons makes the entire exercise otiose. He wants us to read the said meaning into the said rules, but the said word 'consideration' used in Rule 8 is circumscribed by the words 'without any debate' and ' the said officer shall not speak on Ihe merits of the motion' and in view of the same, neither the members can debate, nor the officer can decide on the said debate and the function of the officer is only to conduct the meeting taking precaution that the meeting shall not be convened on a holiday and the quorum should be 2/3rd of the members, and if there is no quorum, to wait for one hour from the time of convening the meeting (i.e. upto 12.00 noon on 21-10-1997 in this case) and if there is a quorum within the above lime of extended one hour; to conduct the meeting and if there is no quorum even within the said extended period of one hour, to call off the meeting which means that the Motion of No Confidence has failed. These are the only functions entrusted to the Officer and these functions are purely administrative in nature and are neither judicial nor quasi-judicial. As the rule prescribes the mode and manner in which the Officer has to conduct the meeting and also the mode and manner of expression of want of confidence without any debate on the part of the members, the same should be conducted in the said specified mode and manner and the petitioners cannot ask more than that and in the instant case, such prescribed mode and manner have been followed and there is no breach thereof The word 'consideration' employed under the Rules has to be construed only for the above functions, nothing more or 'nothing' less and devoid of any debate by the members or decision thereof by the officer. After observing the above formalities, the officer has to count the number of members supporting the motion and record the same and declare accordingly. This action of the officer is purely subjective one and not objective and is purely administrative in nature as stated above. As such the procedure prescribed under the rules is perfectly in consonance with the object and intendment of Section 245 of the Act and neither it violates the said provision nor transgresses the same.
13. Alternatively, Mr. S. Venkat Reddy submits that consideration should involve debate slating the reasons so that the members who did not sign No Confidence Motion and also the Chair-Person facing the No Confidence Motion should be made known the facts leading to want of confidence of the members and non-disclosure of the same, results in infraction of Fundamental Rights guaranteed under Articles 14,19(1)(a) and 21 of the Constitution of India He also contends that consideration is impossible unless the motion contains the grounds, reasons and the material and the Chair-Person is given an opportunity to meet and defend the said reasons, grounds and material at the said meeting and as the motion does not contain any reasons, grounds or material, the same is in flagrant violation of the Principles of Natural Justice.
14. To construe the word 'consider', the learned Counsel for the petitioners relies upon the decisions rendered by the Supreme Court in Barium Chemicals v. AJ.Rana, and Divl. Personnel Officer v. T.R. Challappan, . But, the said decisions of the Supreme Court were rendered in different context and have got no bearing on this case. In Barium Chemicals case (supra),' dealing with the order of requisition of documents under Foreign Exchange Regulation Act, 1947, it was held that the authority should consider as to whether documents are necessary for requisition and for that purpose to apply mind in passing orders for such requisition. In T.R. Challappa 's case (supra), the disciplinary authority has to consider the circumstances of the case and pass orders either inflicting the punishment or exonerating the delinquent. Both the above rights relate to administrative decisions, but resulting in civil consequences and not to political rights as in the instant case. For the same reason, the other decisions of the Supreme Court cited striking the same note touching upon the civil consequences do not hold any bearing on this case.
15. As already stated above, as the post of the Chairman of the Zilla Parishad is a political post created by the statute and is not a civil or Fundamental Right and as the No Confidence Motion is not in the nature of removal from the post on specific allegations and as the theory of No Confidence is one of the concepts of democracy, to be-expressed by mere majority and not by any reasons, either Article 19(1)(a) or the doctrine of Principles of Natural Justice are inapplicable to this case. This is the law consistent right from the decision in N.P. Ponnuswamy v. Returning Officer, Namakkal, in which the Constitution Bench of the Supreme Court held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of and that the right to vote or stand as a candidate for election is not a civil right, but is a creature of statute or special law and must be subject to the limitations imposed by it. Same view was taken by another Constitution Bench of the Supreme Court in Sakhawant Ali v. State of Orissa, that there is no Fundamental Right for any person to stand as a candidate for election to the municipality and that is only a statutory right and whatever statute prescribes has to govern the situation As such, we do not find fault with the motion not containing the reasons, grounds or material and the embargo against the debate by the members and also on the officer.
16. Article 21 is not at all attracted to the facts of this case as the procedure for voting-in the Chair-Person by election and voting-out by No Confidence Motion are the facets of democracy and holding of political office and incidents attached to it are in no way traceable to Article 21 of the Constitution of India The loss of confidence expressed by majority cannot be construed as violation of human dignity which is held to be a facet of Article 21 of Indian Constitution.
17. As the proceedings relating to NO Confidence Motion are in consonance with the statute and the statutory rules, there is no arbitrary action done by the 2nd respondent. We will even examine whether in any way, the motion relating to no confidence and the procedure adopted therefor infringes Article 14 of the Constitution. Elections are by direct and indirect means. While Z.P.T.C. Members are elected by direct election from the respective constituencies, the Chairman who is also elected as such member, is chosen by majority of members under Section 181 of the Act. By the said election, confidence is shown in the leader to lead and conduct the Zilla Parishad and statute gives a guarantee of two years for not removing the Chair-Person or Vice-Chair-Person for the first two years. This period is meant for showing the mettle of the Chair-Person as a whole and not on any specific ground or reason. It may be cumulative effect of several acts, facts and circumstances. If the majority is not satisfied with the work of the Chair-Person, it leads to loss of confidence in the further functioning of the Chair-Person and it is not as if the confidence or want of the same just erupts in a moment, an hour or a day, but it is full two years. To-day, democracy must inevitably be Government by the Peoples Representatives in the name of the people and for the people and the people who are governed have to remain content with a small modicum in the shape of a vote exercised every five years or so. But, we are happy to note that in the statute of A.P.Panchayat Raj Act, there is a power to judge the efficiency of the Chairman of the Zilla Parishad, by its members who are the representatives of the people and who elect the said Chairman reposing confidence in him/her and are entitled to pull him/her down in case, they are not satisfied with the work or working style of the said Chairman In fact, that is a true democracy which reflects the will of the people through its elected representatives. Further, there are checks and balances regarding the exercise of this right in view of the restrictions placed not to move the No Confidence Motion for the first two years of Office and then if it fails, not to move again for the rest of the elective period. This power of ouster of the Chairman by no confidence by majority without any discussion, reasons or grounds is in contra-distinction to the power vested in the Government to dissolve the body of the Zilla Parishad as a whole where reasons are to be stated and opportunity may also be required and even before the harshest act of dissolution of Zilla Parishad, opportunity is given in the nature of directives to correct the errors committed. All these factors are enough to show that there are in-built safeguards for and against holding office and to sacrify the same in case of default in performing the functions properly, by providing appropriate remedial and democratic process in two different ways for different mode of elections, both direct and indirect. Thus, the statutory provision and the rules satisfy the test under Article 14 of Indian Constitution
18. In the circumstances, this writ petition fails and is accordingly dismissed. No costs.