HON'BLE SMT.JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 42356 OF 2022
O R D E R:
This Writ Petition is filed seeking the following relief: " to issue a writ, order or direction more particularly one in the nature of writ of mandamus, declaring the action of 3rd respondent Chief Executive Officer, Zilla Parishad, Mulugu District in issuing the Notice vide No. M/55/2019, dated 17.112022 which has been served on the petitioner on 18/11/2022, disqualifying the petitioner for the post of co-option member of Zilla Praja Parishad, Mulugu District under Sec. 180(2) r/w 25(d) and Sec.27 of T.S. Panchayat Raj Act, 2018 for the alleged reason of not attending three consecutive ordinary meetings of Zilla Praja Parishad, Mulugu District, is illegal, arbitrary and against the principles of natural justice and in contrary to the procedure prescribed under Sec. 27 and Sec.25(d) of T.S. Panchayat Raj Act, 2018 besides violation of Article 14 of Constitution of India and consequently, to set aside the impugned notice dated 17/11/2022 and to pass such other order or orders as this Hon'ble Court may deems fit and proper in the circumstances of the case ad render justice."
2. Sri G. Narender Reddy, learned counsel for petitioner submits that petitioner was unanimously elected and appointed for the post of co-option member of Zilla Praja Parishad, Mulugu District and elections were conducted on 08.06.2019. It is submitted that a show cause notice was issued on 02.11.2022 stating that petitioner has not attended three consecutive meetings dated 19.06.2021, 08.10.2021 and 14.02.2022 and calling for an explanation to submit within 2 seven days from the date of receipt of the said notice. It is submitted that to the said show cause notice, petitioner has submitted his explanation on 09.11.2022 stating that prior notice of intimation was not received by him and also submitted that three consecutive meetings should be held within six months from the date of first meeting. He submits that the said meetings were held within six months from the date of fist meeting hence, it will not attract the provisions of the Telangana Panchayat Raj Act, 2018 to disqualify the petitioner as a member and requested not to take any action. It is submitted that without considering the explanation of the petitioner, just by stating that explanation is not satisfactory, the 3rd respondent issued the impugned notice dated 17.11.2022 by disqualifying the petitioner as co-option member of Zilla Praja Parishad, Mulugu District under Section 180(2) read with Sections 25(d) and 27 of the Act. Learned counsel submits that this action of the respondents is highly arbitrary and contrary to the provisions of the Act. He submits that the 3rd respondent has no jurisdiction to disqualify the petitioner. The 3rd respondent i.e. Zilla Praja Parishad has no authority or jurisdiction to disqualify the petitioner. As per Section 27 of the Act, only the District Collector is having jurisdiction over the 3 area in which the office of Zilla Praja Parishad is situated to disqualify any member under Sections 19, 20, 21, 22, 23, 24 and 25 of the Act.
3. Learned Standing Counsel for the 3rd respondent Sri R. Chadrasekhar Reddy submits that they have issued a show cause notice to the petitioner and as the said reply is not satisfactory, they passed the impugned order. He submits that the Zilla Praja Parishad has the power to issue the impugned proceedings and there is no illegality about the same.
4. A notice has been issued to the petitioner on 02.11.2022 on the only ground that the petitioner has not attended the meetings on 29.06.2021, 28.10.2021 and 14.02.2022 and asked the petitioner to submit his explanation. For that, an explanation was submitted by the petitioner that no prior intimation was given to him and also stated that as per the orders issued by the government, within six months, if a member fails to attend three meetings, then he can be removed, whereas in this case, the third meeting that was conducted was beyond six months. As such, the said clause has no application to the petitioner.
5. At this juncture, it is appropriate to have a look at Sections 22 and 25(d) of the Act which read as under: 4
" 22. Disqualification on ground of corrupt practice of election offfences - Any person who is convicted of any offence punishable under Chapter IXA of the Indian Penal Code, 1860 (Central Act 45 of 1860), and any person against whom a finding of having indulged in any corrupt practice is recorded in the verdict in an election petition filed in accordance with Section 242, or any person convicted of an offence punishable under Chapter II of Part V of this Act, shall be disqualified for contesting in any election held under this Act, for a period of six years from th date of such conviction or verdict, as the case may be."
" 25. Disqualification of members:-Subject to the provisions of Section 27, a member shall cease to hold office as such if he-
(d) absents himself from the meetings of the Gram Panchayat for a period of ninety days, reckoned from the date of the commencement of his term of office, or if within the said period, less than three ordinary meetings have been held, absents himself from three consecutive ordinary meetings held after the said date."
6. Learned counsel for the petitioner has relied on the judgment of a Division Bench of this Court in Chava Rosaiah v. 5 Chintala Venkateswarlu1 wherein it is observed that a member or Sarpanch can be said to have incurred a disqualification under Section 19 only when it is so declared by the District Judge under Section 22. Merely because a notice has been issued to a member / Sarpanch that he has been disqualified under Section 19 and the said member / Sarpanch fails to approach the District Court for a decision, it cannot be said that the disqualification automatically comes into operation. Coming to the facts of the case, by issuing the proceedings dated 17.11.2022 it cannot be said tht the petitioner is disqualified, the Division Bench in the afore-referred judgment has observed that Section 22 of the Act is an enabling provision insofar as member or Sarpanch or any other member is concerned. It enables them to approach the District Court for decision after receipt of the intimation of allegations by the member or Sarpanch against whom the allegations are made. It casts no obligation on the member or Sarpanch to compulsorily approach the District Court for a decision on mere receipt of intimation of allegation from the executive authority. A member or Sarpanch may or may not approach the District Court even if he disputes the correctness of the allegation. Allegations are mere 1 2004(1) ALD 54 (DB) 6 allegations and no action can be taken thereupon unless there is adjudication and decision rendered by District Court on such allegation holding that a member or Sarpanch is disqualified or has become disqualified under any of the provisions contained under Sections 17 to 20 of the Act. Legislature has deliberately used the words "such member or any other member may within a period of two months apply to District Judge for decision". It is also observed that same provision casts an obligation on the executive authority to apply to District Court for adjudication when Gram Panchayat or Commissioner so directs him. It is further observed that Section 22 being only an enabling provision conferring right on such member or Sarpanch who receives an intimation of allegations of his not being qualified or having become disqualified that within two months he can approach the District Court for a decision. It is only on decision being rendered by the District Court holding that a member or Sarpanch is not qualified or has become disqualified then consequential action can be taken. It is further held that it cannot be said that having failed to apply to District Court for adjudication, the member or Sarpanch would automatically cease to continue as member or Sarpanch after expiry of period of two months from the date of receiving of intimation by him. 7 Unless there is a decision on the allegations so made against the member or Sarpanch by an adjudicatory authority, such allegations cannot be used against the member or Sarpanch and he would continue to hold the office of member or Sarpanch unless removed in accordance with law. In the said case, the petitioner therein did not seek any decision even the gram panchayat or the Commissioner did not direct the executive authority to seek decision from the District Court on the allegations made. In such an event, the action could not have been taken against the petitioner therein. It is held that the District Panchayat Officer has exceeded his jurisdiction in issuing proceedings holding that petitioner had incurred disqualification under Section 19(2)(i) read with Section 14 of the Act or that he had ceased to hold the office of Sarpanch. The said order being void and without jurisdiction, the District Panchayat Officer had also no authority or jurisdiction to issue the consequential order and accordingly, the Division Bench has set aside the order.
7. In the present case also, an order is passed by the 3rd respndent disqualifying the petitioner without being adjudicated by the competent Court. Applying the ratio laid 8 down by the Division Bench in Chava Rosaiah's case (supra), the order impugned dated 17.11.2022 is set aside.
8. The Writ Petition is accordingly, allowed. No costs.
9. The Miscellaneous Applications, if any shall stand automatically closed.
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LALITHA KANNEGANTI, J 11th January 2023 ksld 9 10